Family law: no island entire unto itself
Posted on 5th Nov 2016 in Family Law
In a series of posts on this blog, David Burrows will be discussing the impact on family law and practice of reported cases arising in other areas of law. As he explains in this introduction to the series, family law is not an isolated, self-contained jurisdiction, but forms part of the general law, with which it must conform.
Case law through a family law prism
No area of legal specialisation is an island entire unto itself. This is so as much of employment or immigration law, welfare benefits or patents, administrative law or work in the Chancery Division. And it is as much so of family law. The point was made by Lord Sumption in his speech Family law at a distance (presented to the At a Glance Conference 2016) where he said ‘Courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different.’ In so saying, he was quoting from his own judgment in Prest v Petrodel Resources Ltd  UKSC 34;  2 AC 415;  2 FLR 732.
Lord Sumption’s quotation occurs in the following context, at para 37:
If there is no justification as a matter of general legal principle for piercing the corporate veil, I find it impossible to say that a special and wider principle applies in matrimonial proceedings by virtue of section 24(1)(a) of the Matrimonial Causes Act 1973. The language of this provision is clear. It empowers the court to order one party to the marriage to transfer to the other “property to which the first-mentioned party is entitled, either in possession or reversion”…. Courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different. If a right of property exists, it exists in every division of the High Court and in every jurisdiction of the county courts. If it does not exist, it does not exist anywhere….”
Much the same point – as to family law not being isolated or quarantined form other areas of law – was made by Munby LJ (later Sir James Munby P) in Richardson v Richardson  EWCA Civ 79;  2 FLR 244, at para 53:
The Family Division is part of the High Court. It is not some legal Alsatia” — a lawless part of London just to the west of the City of London (alongside Blackfriars and Fleet Street), so named in the early seventeenth century when the Thirty Years War was raging in Alsace — “where the common law and equity do not apply. The rules of agency apply there as much as elsewhere.”
Common law and family proceedings
The common law applies as much in family cases as it does in any other court which exercises jurisdiction in the United Kingdom (ie it applies in Scotland as well): criminal, civil or administrative tribunal. So what is a brief view of the source of the common law? On occasion a judge may need to define, or re-define, an area of law which is new. This may arise where no law exists to answer a particular problem (eg release of documents used in court to enable the press to make sense of proceedings: R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening)  EWCA Civ 420;  QB 618); or where the High Court is asked to look at existing areas of definition in a new light (eg where the common law is redefined by the rules such as the ‘implied undertaking’ as to collateral use of disclosed documents under CPR r 31.22).
The series which will follow this introduction is a periodic note/blog which looks at case law not generally regarded as a priority for the family law reporters (eg Kennedy v Cordia (Services) LLP  UKSC 6;  1 WLR 597 on expert evidence; Al Rawi v The Security Service  UKSC 34;  AC 531 on closed material procedures or Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd  UKSC 46;  AC 160 on estoppel), but which have an importance – which will be discussed – in the family proceedings context.
Cases – mostly, but not exclusively, recent cases – which have not featured, or are unlikely to feature, in mainstream family law reports will be reviewed through a family law prism. Early examples of the subjects to be covered include:
- Release of court documents (eg to the press or others to help them make sense of the proceedings): R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) (above); NAB v Serco Ltd  EWHC 1225 (QB), Bean J).
- Expert evidence to assist the court: Kennedy v Cordia (Services) LLP (above) (an appeal from a Scottish court decision); CPR r 35.4 and Children and Families Act 2014, s 13(6) (‘necessary’).
- ‘Possession or control’ of documents: North Shore Ventures Ltd v Anstead Holdings Inc  EWCA Civ 11; CPR r 31.8.
- Issue estoppel reviewed: Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (above).
- Closed material procedures in the light of Justice and Security Act 2013 s 6 and CPR Part 82 (Al Rawi v The Security Service (above); and see X, Y and Z (Disclosure to the Security Service)  EWHC 2400 (Fam); (reported as Commissioner of Police of the Metropolis v A Local Authority  4 WLR 153, McDonald J).
- Review of the rules of precedent: Willers v Joyce (No 2)  UKSC 44;  3 WLR 534; (as compared with eg the views of Mostyn J and the role of a puisne judge).
- Special measures for dealing with children and other vulnerable witness evidence under Youth Justice and Criminal Evidence Act 1999, Part 2 (as explained in R (D (a minor)) v Camberwell Green Youth Court  UKHL 4,  1 WLR 393; but see Re S (Children)  EWCA Civ 83).
Human Rights Act 1998 developments
Alongside common law developments will be an awareness that one of the most vigorous of the progeny of the common law – the European Convention 1950, which many regard as the then common law writ large in many aspects – must inform much of what is said. Human rights aspects of the case law to be considered here will be born in mind and commented upon where need be. That said it must be balanced also by the words of Toulson LJ (now Lord Toulson) in R (Guardian) v Westminster Magistrates’ Court (above):
 I base my decision on the common law principle of open justice…. The development of the common law did not come to an end on the passing of the Human Rights Act. It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere.
The common law creates the rights which those in a common law jurisdiction (including United Kingdom) enjoy. No ‘Bill of Rights’ or other legislation can do that. The European Convention 1950, like other statutory developments, and its jurisprudence, can only refine or clarify those rights.
David Burrows is a solicitor advocate, trainer and writer. His book Evidence in Family Proceedings is published by Family Law this month.
He writes a blog at DB Family Law