Practice Directions and the President of the Family Division
In her http://www.pinktape.co.uk/rants/who-to-follow-the-precedent-or-the-president/ @familoo reflects on precedent law: ‘Who to follow: the precedent or the President?’. In it she asserts:
Whilst the President has the power to issue Guidance or Practice Directions, what status do his Views hold, styled in title if not in form as the idle musings of a be-windowed leader? The answer is of course they warn us what the Court of Appeal might say in the event we fail to take heed and find our foolish disobedience immortalised in a new actual (and excruciatingly embarrassing) binding precedent.
This breaks down into three areas of ‘law-making’ (the inverted commas will be explained): Practice Directions, Practice Guidance and the habit of Sir James Munby P of musing at his chambers window (which are indeed but his thoughts: no more, though from a voice significant in the family law system; and that is the last to be said on fenestral musings here).
Sir James, the current President of the Family Division, is a dogmatic figure; and sometimes fails to distinguish between his position as a judge, and as an administrator. In the latter role he must be amenable to judicial review. Rightly, he stresses that family law is part of the civil law system. It is not some segregated lawless Alsatia (see eg Richardson v Richardson  EWCA Civ 79). At the same time he does much precisely to drive family proceedings into their own ghetto, Alsatia even. For example the new rules and statute law on expert evidence is technically the creation of statutory bodies; but bears his firm imprint. It creates three regimes for expert evidence: children proceedings (mostly in Children and Families Act 2014 s 13); all other family proceedings (FPR 2010 Part 25); and other civil proceedings (CPR 1998 Part 35). Over all of these arches Civil Evidence Act 1972 s 3.
Practice Direction, Practice Guidance and ‘gap’ rules
The question of practice guidance divides this area of delegated legislation into Practice Directions, Practice Guidance and ‘gap’ rules (together here called ‘practice rules’). The topic is considered fully in my Practice of Family Law: evidence and procedure (Jordans, 2012) at Chapter 2 (paras 2.12-2.36). Rules are made by Family Procedure Rules Committee under powers in Courts Act 2003 ss 75-76 (outside the scope of this note). Practice Directions are made under powers in Constitutional Reform Act 2005 by the Lord Chancellor who can delegate his authority to eg the Lord Chief Justice (family proceedings Practice Directions are endorsed as being approved by the LCJ).
Limits on the issue of guidance was explained in Secretary of State for Communities and Local Government v Bovale Ltd and anor  EWCA Civ 171 (‘Bovale’). In that case the Court of Appeal analysed the making of practice directions. The court allowed an appeal where Collins J had not followed a practice direction in a planning case. In doing so they considered the background, first, to the making of directions; and then what were a judge’s powers to make directions if there appeared to be no rule to cover the procedural or practice point in question.
Neither a procedural rule (see per Buxton LJ in in Jaffray & Ors v The Society of Lloyds  EWCA Civ 586 at para -) nor a practice direction can change the law. Practice directions are limited to their function which is to regulate court proceedings alongside or as a supplement to procedural rules (Re C (Legal Aid: Preparation of Bill of Costs)  1 FLR 602, CA). This was explained by Brooke LJ in KU (A Child) v LC  EWCA Civ 475 at para  for practice directions:
It is sufficient for present purposes to say that a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.
If a judge perceives a gap in practice rules s/he is entitled to fill that gap (Bovale paras -). Unless a gap is perceived it is not open to a judge – even at High Court level – to declare of his own initiative what practice should be. One of the more remarkable recent breaches of this principle – though largely unremarked at the time, and since – was that of Mostyn J in UL v BK (Freezing Orders: Safeguards: Standard Examples)  UKHC 1735 (Fam). In that case the judge gratuitously issued professional guidance to solicitors (though it affects the bar also) in the case of Imerman documents (Imerman v Tchenguiz and ors  EWCA Civ 908: private documents taken by one spouse unknown to the other).
The ‘guidance’ was no part of the ratio of Mostyn J’s decision. (It is generally known that Sir James approves this ‘guidance’.) It was issued without the court hearing argument on the subject from any practising lawyers (or eg from the law Society or the Bar Council). The ‘guidance’ fills no Bovale gap necessary to enable the court to resolve a disputed issue. Short of judicial review – Mostyn J was not acting as a judge, in the sense that a judge adjudicates between opposing points of view, so must have been amenable to review – there is no way the decision can be challenged. The ‘guidance’ is foreign to all democratic principles on which the rule of law is based. Plainly Mostyn J’s ‘guidance’ is a charter for cheats (as explained in https://dbfamilylaw.wordpress.com/2014/02/02/mostyn-j-condones-non-disclosure-imerman-documents-and-ul-v-bk/ ); but until the professional negligence claims start coming in from spouses who were advised to part with crucial evidence of material non-disclosure, the Mostyn J ‘guidance’ on the subject will be followed by impressionable family lawyers.
Status of practice directions and guidance
As can be seen: practice directions and guidance are not law. They guide practice. They cannot – or should not – be given by judges on the hoof; and if, as ‘gap’ rules, they are to be made, courtesy (ignored by Mostyn J) suggests that the judge enables practitioners in a case to comment on the proposed ‘gap’ filling guidance. An excellent example of this practice by a judge can be seen operated by Keehan J in A Local Authority v DG & Ors  EWHC 63 (Fam).