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.