Who to follow : The Precedent or the President?

We’ve been talking about transparency in judgments over on the Transparency Project recently. And over on DBFamilyLaw others have been musing about the doctrine of precedent. It’s interesting to be reminded of the basics of the Doctrine of Precedent – because in day to day life at the sharp end of the bar (I don’t spend a great deal of time in the Court of Appeal or Supreme Court you see) you could be forgiven for thinking it is something of an anachronism.

In the real world where I live the common currency is the latest View, the latest Practice Direction or Presidential Guidance or the latest BAILII transcript that has been cascaded upon us. These are the things to which we – and the judiciary – refer constantly in order to direct our thinking, focus our submissions and to shape decision making. Precedent? Hmmm. 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.

Of course we do regularly use caselaw – I don’t mean to suggest that I operate in some sloppy, parochial backwater where we make up our own law or choose to ignore the guidance from the senior courts. And we have had no shortage of case law in the last 24 months or so. But I don’t think that in practice it works quite as per the traditional doctrine as set out by David Burrows, and the real world of family law practice in 2014 is significantly at odds with the English Legal System textbooks I read way back in the millenial year :

The creation of the Family Court has perhaps blurred the lines in terms of what is binding precedent and what is persuasive. How now do we treat decisions of Circuit Judges sitting within the Family Court but exercising their s9 powers, or decisions of the High Court? The distinct neutral citations created on BAILLI since 22 April suggest a distinction. Is there one? I’ve no doubt there is an answer to this that I am insufficiently bright or diligent to have worked out and perhaps someone will tell me in the comments below. Of course it goes without saying that the High Court and Court of Appeal are binding as they ever were. But nonetheless the Single Family Court represents a collapsing of some of the lower tiers into one another. And in light of the Transparency Guidance whereby many CJ level decisions are also now published (if not Reported with a capital R) this impression is strengthened. Which judgments are precedent – persuasive, binding or just interesting? In truth we do cite cases that are factually analagous even though they may themselves merely apply rather than set out any new principle. It happens all the time. Perhaps we should not, but for sure our citation of authority will be far more restrained that that of the industrious litigant in person for whom every case is proof of his rightness.

That idea from law school of a clear distinction between cases of legal significance and the rest, of a neatly identifiable ratio that can be crisply distinguished from the dicta – well that was never quite as easy in real life as it was in the textbooks. But now? Well it’s another thing that has collapsed in on itself if you ask me.

Think on this : we have a mandatory CMO template which literally quotes wholesale from a first instance County Court decision in order to justify a s13 C&FA 2014 extension (Re S). It may be a decision of the President, which makes it persuasive – but can it really be said that it “purports to establish a new principle or establish the law” when the sections now pasted into the CMO are said in the judgment to be “preliminary and necessarily tentative observations”? Of course, very shortly after this decision the CMO was issued, so there is an air of the President using this authority to think through this issue, using this pretty unremarkable County Court case as a vehicle for a spot of thinking aloud, a sketchbook for the CMO template.

And in the Court of Appeal we had B-S. Another unremarkable case on one level. Until you get to paragraph 15, where there is an unanticipated gear shift :

Adoption – the wider context

Lurking behind the present case, and indeed a number of other recent cases before appellate courts which we refer to below, one can sense serious concerns and misgivings about how courts are approaching cases of what for convenience we call ‘non-consensual’ as contrasted with ‘consensual adoption’; that is, cases where a placement order or adoption order is made without parental consent….

And so it goes on, bashing the Judges, the lawyers for sloppiness, spelling out the law in many words of more than one syllable. Relentlessly until paragraph 75 when there is a passing mention of the actual case being appealed :

We shall return in due course to consider the application of these principles to Parker J’s judgment in this case. First, however, we need to consider, in the light of Re B, the approach which we should adopt as an appellate court hearing an appeal against a refusal of leave under section 47(5)….

Only a brief pause for breath then. But finally, at pa 85 they remember that “The question for us therefore is whether Parker J was wrong.” And they go on to dispose of the appeal in twenty choppy paragraphs.

Of course, I don’t regret B-S. It said some things that REALLY needed saying. I don’t disagree with B-S. It said some things that some of us have been arguing in front of stony-faced tribunals for years – its not about social engineering and happy forever families  - its about permanent, irreversible removal from a child’s whole family and whether that is really necessary. It requires rigour.

So it’s a big thumbs up from me for B-S. It has been the source of some rewarding climbdowns and changes of care plan in a few of my cases and it has made a positive difference to the rigour of legal and social work practice. But is it really binding precedent of the kind that should spawn an entire new piece of terminology (final evidence must be B-S compliant)? All the bits of B-S that are of wider significance are OBITER. Not that you’d ever know it from the way it is wielded by many, including myself (to great effect). Because B-S interpreted Re B for us (for which The Court of Appeal have our eternal thanks) and that IS binding precedent. B-S is not the only recent Court of Appeal judgment that feels like something of a vehicle for a pre-existing rant, just waiting to be slotted in between the background facts and the tail end dealing with the specific grounds of appeal and its dismissal or grant. There is, as they say, a lot of it about.

No, I think the days of a single golden thread of binding authority emanating from the Supreme Court or Court of Appeal are gone. We have wisdom coming at us in all forms and from all directions, so much that it sometimes seems as if the unique authority of precedent has been lost.

Performing Dog

I recall now (following my last post) that you all quite like it when I whinge and whine.

So here goes, especially for you (as a much younger Kylie would have said). A whine about the law of unintended consequences.

Bundles :

  • Bundles now have to be agreed (*maniacal laughter*), prepared and lodged so early they practically need a pre-birth conference. Timetables are now under so much pressure that documents for a particular fixture have to be squeezed in at the 11th hour in order to make that fixture stand. Consequence? The index NEVER contains the most recent documents which are the very ones that are crucial to the hearing – meaning that nobody has any pagination for said documents and invariably half the advocates don’t have at least 50% of said documents.
  • Subsequently, in advance of the next hearing you get sent all the same documents with pagination on them, resulting in annoying waste of paper.
  • Or (in the alternative) you don’t and you therefore make up your pagination, which is never thereafter quite in tune with anyone else’s.

Transparency :

  • Case Management Orders and CAP forms have the laudable aim of making things clearer and more transparent. The reality is that critical information becomes lost in a morass of verbiage and the meaning of the order is obscured. They become the antithesis of transparency.

Social Work / CAFCASS Templates :

  • These are meant to ensure specific matters are considered and addressed, and to prompt analysis of core issues in line with the relevant legal framework – certainly matters which are not a sufficiently consistent feature of social work evidence.
  • However, the reality is that these templates suffer from the twin failings of having unmanageable layouts (ridiculous columns that require reading a Guardian’s analysis as if it were a papyrus scroll) and from actually acting somehow to dull the analytical instincts of the poor soul completing them. This results in a document which reads as a formulaic response to a standardised question rather than a tailored response to the unique circumstances of the case, with a corresponding loss of any sense of authenticity that really does social work a disservice (and don’t even get me started on whether the questions are actually the right questions). For me, the documents where the quality of analysis shines through are the ones where the writer ignores templates and says what they really think, and at each stage underpins that assertion / opinion with evidence.

These are just the three that have been getting on my wick today…

Information Commissioner v Fat Controller

This week was a week of altogether too much train travel and Friday took the biscuit. (NB : This is a bit woe is me. I feel much better now…)

Care brief (legal aid) for client who needs continuity of counsel. Distant court at out of town location. Ordered to be at court at 8.30am. No. That isn’t a typo. Travelled down the night before to make said 8.30 start, missing a fourth consecutive bedtime with the kids, aware that the Legal Aid Agency are almost certain to reject any claim for train or b&b or the taxi to court (even though it is not possible to get to on foot) and I am therefore effectively working for free. Long train journey, with mahusive suitcase. No room for mahusive suitcase in rack, but safely stowed out of aisle in (empty) designated wheelchair area along with others. Nice conductor assists passengers with reorganising luggage to fit all in a safe corner. Unable to work due to being seated next to octet of pink spangly Brizzle ladeez on a 40th birthday bash, drinking peach schnapps, eating cupcakes and chatting up all male train staff and passengers whilst playing tinny music via their iphone speakers. Arrive at B&B 9pm, prep, sleep, up at the crack. Taxi to court for 8.30am as per order. Others arrive (predictably) after 9.00am.

Friday lunchtime – long train journey back. No room for mahusive suitcase in rack, but safely stowed out of aisle in (empty) designated wheelchair area, beneath unused table. Am ousted from seat next to my luggage by person with booked seat. I move to the seat opposite where an exceptionally long legged girl with bad dance music emanating from poor quality headphones permits me to use a generous half of the seat beside her, taking up only half of said seat with her handbag. She doesn’t seem to mind when I sit on it though, so it’s all good.

Until the conductor man arrives and gets all legalistic on me. Demands I move my suitcase from it’s entirely safe and unobstructive position to the other end of the carriage where I will not be able to see it. Reasoning with him (albeit in a slightly tetchy tone) does not elicit any flexibility. Because “there is a sign” and “I’ve announced it” so “it’s a legal requirement”. Observing wearily that it did not seem to be a legal requirement on the way down does not produce results. Explaining that I cannot leave my bag unaccompanied produces only “it’s a legal requirement, I refer you to the notice.”. Oh yes. The one I can read because it ISN’T obstructed by a wheelchair. “What if” he says triumphantly “A wheelchair user got on? Then you’d slow down the train.” But there isn’t! And OF COURSE I’D BLOODY MOVE MY SUITCASE FOR A WHEELCHAIR USER!! And…did I mention that there ISN’T A WHEELCHAIR USER??

And I – realising that my stack is about to blow, irritated by legal stuff thrown at me which is probably rot but which I am unfamiliar with – refrain from explaining in full that I cannot leave my suitcase at the other end of the carriage because I am a barrister and it is full of not only the detritus of a week away, but also of files and files of papers about the parents’ mental health and criminal history, and details of several very vulnerable children. That I *cannot* lose (for both the sake of the client and her family and for reasons of self-preservation). That this is information that the Information Commissioner will fine me tens of thousands of pounds for if I were to lose it by being so careless as to comply with something so flimsy as a “legal requirement” from a train conductor. I resist explaining all this partly so as to avoid becoming that self important twonk whose presence is obligatory in every train carriage. And partly because this is not a battle that can be won by “my law is ‘arder than your law”. And partly because, whilst conducting this rather unsatisfactory “debate” I have in fact been attempting unsuccessfully to fit my suitcase in the undersized, inefficiently stacked luggage compartment next to my seat – preferring to be righteously cooperative than brazenly non-compliant. I am finding the multi-tasking tricky.

Just as I reach the point where one corner of my mahusive suitcase is teetering on the top of the suitcase mountain with its full weight on one shoulder, and just as it is threatening to slide back off and pin me to the floor of the carriage the train conductor turns tail and leaves me to it, mid teeter. I have to be rescued by a suitcase samaritan (thank you). We realise this mountain must be re-stacked to get my suitcase in. I am then told off loudly, in sequence, by three separate women for variously touching or moving their bags. First lady…Yes, I’m trying not to crush your bag by putting my suitcase on top of it. I’m just putting it here whilst I make room for mine. You want to be able to SEE your bag from your seat? OK, well have you considered putting it in the overhead shelf RIGHT ABOVE YOU? The ENTIRELY EMPTY ONE? Second lady…. Yes, as I said before I’m trying not to crush your bag either so I need to move it to re-stack. Lady number three is my neighbour with the legs. “Can you not touch my bag please?” After I observed loudly that she seemed to be quite happy for me to be sitting on her handbag on account of her not moving it off my seat she shut up and me and my samaritan finished re-stacking the suitcases and I sat down. The handbag was gone.

Deep breath. What just happened??? I think I need a peach schnapps.

I regularly have my suitcase moved less than delicately or blocked in by other passengers on the train. It’s annoying but I don’t do more than humph on discovering it as I’m trying to make my exit. I’ve never encountered this sort of vocal bag preciousness before. I think that my insistence on needing to be with my suitcase prompted a sort of crowd-think reaction – “my bag’s as important as yours”. Just as well I didn’t do the whole “I have sensitive data in my bag” thing… God knows what might have kicked off!

But the point to this rant is this:

Sometimes we have to travel by train to get to clients. Sometimes it’s too far or we’re just to dog tired to safely drive. Whether it’s car or train or bus we take great care with our papers – damn it I even take them in the station toilet cubicle with me – but this will cut no ice in the unfortunate event of a loss or theft. The Information Commissioner has been absolutely clear – any data loss is basically our loss and it will cost us. More than we can hope to sustain. Career ending amounts of money. So busy trains are a nightmare. Sometimes it is impossible to keep the luggage rack in line of sight, sometimes you nod off on the journey. Sometimes you spend the whole journey anxiously craning your neck to watch the rack every time the train “platforms” (whilst resisting the urge to shout “Platform is not a verb!”). Sometimes you come up against a “legal requirement”.

In trying not to be a conspicuous legal-twonk I did not attempt mid-carriage, mid-argument to look up the railway byelaws. I’m a lawyer to the core but I’m not the sort who loves a confrontation for the heck of it. However twitter did look it up for me (h/t @unity_mot). I am now armed with the knowledge that Rule 12 of the Railway Byelaws provides as follows :

12. Safety instructions

  1. An Operator may issue reasonable instructions relating to safety on any part of the railway by means of a notice on or near that part of the railway. No person shall, without good cause, disobey such notice.
  2. An authorised person may, in an emergency or in other circumstances in which he believes he should act in the interests of safety, issue instructions to any person on the railway. No person shall, without good cause, disobey such instructions.
  3. No offence is committed under these Byelaws where a person acts in accordance with the notices or instructions given under Byelaw 12(1) or 12(2).

A further rummage in the byelaws produces this, which I think is what my conductor was referring to:

19. Classes of accommodation, reserved seats and sleeping berths

Except with permission from an authorised person, no person shall remain in any seat, berth or any part of a train where a notice indicates that it is reserved for a specified ticket holder or holders of tickets of a specific class, except the holder of a valid ticket entitling him to be in that particular place.

Except of course 19 isn’t applicable because there was no person in the designated area, only a suitcase. So I’d say the question is rather whether it was a reasonable instruction and whether I had good cause to disobey. I’d say “No” and “Yes” respectively (but then I’m a child lawyer not a transport lawyer).

I plan to print out and tape these regulations to the inside of my trolley to be wheeled out next time I am confronted by a legal requirement that is incompatible with my fear of the Information Commissioner.

I shall do so in the almost certain knowledge that although I am now equipped to argue the toss I will probably simply grumble and then capitulate in a desperate attempt to avoid looking like the cleverdick fatcat lawyer who thinks the rules don’t apply to her. And to avoid getting kicked off the train…