President’s citation practice guidance

On 24 February 2025 the President of the Family Division published Practice Guidance (Citation of Authorities: Judgments of Circuit Judges) [2025] 1 WLR 1063 (the 2025 Guidance). This guidance deals with two potentially irreconcilable issues. The President wishes to promote publicity for lesser judges’ judgments (ie judgments of circuit judges and district judges). In the same guidance he seeks to restrict the number of judgments which can be cited in family courts at different levels.

The 2025 Guidance includes in one document three different elements:

1. What in law is a precedent?
2. What is anyone permitted to cite to a court (see Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 (“the 2001 PD”)?
3. And how many judgments should junior family courts judges (ie below High Court level) seek to publish?

Though the 2025 Guidance is issued by the President of the Family Division, most of the points which follow are not restricted to family law cases; and especially to the extent that this post looks at what is meant by precedents and the limits of citation. What follows here is mostly directed to (3).

Open justice: “at the heart of our system of justice and vital to the rule of law”

So why report case law at all? Most important, surely, is that our record of the common law can be defined and construed. A secondary purpose is to enable us all to see what judges are up to in our name. As Toulson LJ explained in an oft-quoted passage from the opening paragraph of his judgment in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618:

“[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept, but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes – who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well-known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 477: ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial’.”

It is the reported cases which define the common law. What they say can only be overridden by statute or in those rare cases – as explained in the first post of this series, Can the Supreme Court depart from its previous decisions? – where the Supreme Court overrides an earlier decision.

The common law will rarely include junior judges’ reports. This must raise the obvious question: why publish or read such reports? If, as I suspect, they are not read, their publication does nothing practical to invigilate the activities of judges. Perhaps it tempts some advocates further to burden their skeleton arguments and other written material. And does publication of meagre seams of superficial precedent material encourage AI miners to embellish their stock?

The 2001 Practice Direction on citation of authorities

What any party (if unrepresented) and any advocate in a case must be clear on is to distinguish what is regarded by courts as citable, and then what is precedent. Precedent means what forms a part of the common law. Because Lord Woolf CJ in the 2001 PD says a case may be cited does not mean it is a precedent: that depends on whether it has “moved the law along”.

Para 4 of the 2025 Guidance mentions the 2001 PD as follows:

“[4] It has been noted that the [the 2001 PD] has not always been followed. It provides that a judgment below High Court level may not be cited (paragraph 6.2) ‘in order to demonstrate current authority at that level on an issue in respect of which no decision at a higher level of authority is available’ unless (paragraph 6.1) ‘it clearly indicates that it purports to establish a new principle or to extend the present law … that indication must take the form of an express statement to that effect’.”

A recent example of what may be cited is provided by Hayden J in Re F (A Child) (Permission to Appeal) [2025] EWHC 638 (Fam) (17 March 2025). The judge – a High Court or puisne judge – issued the equivalent to a para 6.2 direction when he refused permission to appeal to a father and on the papers:

“[36] This judgment concerns an application for permission to appeal which has been determined on consideration of the papers. As these decisions do not involve hearing of oral argument, they are relatively rarely reported. Here however, the procedural issues relating to appeal are of wider relevance and require to be placed in the public domain.” (Emphasis added)

The central question: what is precedent, and what is citable?

What then is “law”? It is not just what a puisne judge, or higher, has said in disposal of a case. The legal principle on which a decision is based is the precedent, ie the ratio decidendi.

To extract the principle of the case the reader must:

1. Decide whether the case in question is eliminated by the 2001 PD.
2. Work out to what extent the decision is merely an exercise of judicial discretion (as with many money and children family cases). But bear in mind that an exercise of discretion may contain developments of law to support it, so there may be precedent within the conclusion to the case (the “law proviso”).
3. Exclude findings which only determine contested facts. (Occasionally the law proviso might apply to fact-specific cases. Anonymity applications are a case in point).
4. Define any precedent elements which survive these exclusions. Then, finally:
5. Asses to what extent do those elements “move the law along”.

If the answer to (5) points to a new principle, that  is a precedent. Such a case is – at least arguably – a citable authority.

As to (3) above, a judge may expressly point out that “what I have decided is fact-specific”. An example is A Local Authority v X (Attendance of Experts) [2025] EWFC 137 (3 June 2025), where MacDonald J case managed a children case and directed which experts in the case must attend for cross-examination. He concluded his judgment (judge’s evidence):

“[68] I wish to emphasise that this case management decision turns on the facts of this case. It does not presage a change of approach to the application of FPR 2010 r 25.9(2) from that taken by the courts since the relaunch of the Public Law Outline in Part 12 of the FPR. Nor does it set any precedent with respect to the attendance of experts in cases of alleged serious or fatal non-accidental head injury. It is simply a product of applying the test articulated in FPR 2010 r 25.9(2) to the facts of this case.”

Having recalled the essence of precedent rules devised by the English and Welsh common law, the 2025 Guidance goes on to consider what is and is not citable (emphasis added):

“[5] It follows that judgments at circuit and district judge level should not be cited unless they contain an express statement that the judge intends that the judgment should be citable (ie relied upon in the future in respect of that legal issue). Judgments that do not contain such an express statement will not be citable. These judgments can and should be published in the usual way to promote transparency but will not be capable of being referred to as primary authority.”

By contrast, decisions of the Supreme Court are binding on all courts (including, mostly, the Supreme Court itself). Binding too are many judgments of the Court of Appeal and of High Court judges, as Lord Neuberger explains in Willers v Joyce (No 2) [2016] UKSC 44, [2018] AC 843 at [4].

Has a higher court’s decision “moved the law along”?

In his 2006 lecture on The rule of law Lord Bingham defined as his first rule: that law must be accessible and so far as possible intelligible, clear and predictable. “Judicial development of the law” he said, was one thing; clarity and predictability should “preclude excessive innovation and adventurism by the judges. It is one thing to alter the law’s direction of travel by a few degrees, quite another to set it off in a different direction.”

In his later (2010) book of the same title, Bingham said at p 45: “it is one thing to move the law a little further along a line on which it is already moving…; it is quite another to recast the law in a radically innovative or adventurous way” for then it becomes uncertain and unpredictable. And, he continued, it is “very tough on the loser who has lost because the goal-posts have been moved” by a High Court judge in the course of their case.

Thus the principle of the case in Scott v Scott [1913] UKHL 2, [1913] AC 417 is helpfully defined by the ICLR law report as:

“The [Family Division] has no power, either with or without the consent of the parties, to hear a nullity suit or other matrimonial suit in camera in the interest of public decency.”

And that is all. It has moved the law along to that extent. The rest is obiter. That is, the variously commented different judicial contexts is aside from the issue or issues before the court in that individual case. Of course, what the House of Lords (and Supreme Court) says obiter is often very helpful; but it does not alter the narrow spectrum of common law.

Precedent law from April 2025

In April 2025 BAILII published (by my calculation), 26 family law cases at Family Division High Court judge and higher level (including two in the Supreme Court). Any one of these 26 cases might – or even should? – be of interest to a family lawyer. How many of them can be cited as precedent in that they can reliably be said to have created new law?

An essential feature of precedent law is to explain existing statute law.

• For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16, [2025] WLR(D) 211 unquestionably did that, by asserting what Equality Act 2010 means in relation to gender recognition.
• Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] UKSC 15; [2025] 2 WLR 815; [2025] WLR(D) 220, SC(E) developed the scope of the High Court’s parens patriae jurisdiction, mostly in terms of reporting restrictions orders and hospital staff in end of children’s life cases.
• In Re E (A child) [2025] EWCA Civ 470 the Court of Appeal clarified the meaning of Children Act 1989 s 37: it could not be used to refer to “any” child known to the court in the course of children proceedings in respect of other children.
• In Re M (A Child: Intermediaries) [2025] EWCA Civ 440 the Court of Appeal set out full guidance as to when appointment of an intermediary might be approved in family proceedings.

Three further cases remind parties and practitioners as to what is the existing law. They do not move the law along. They bear repeating, nevertheless.

• In R (Glaister) v Assistant Coroner for North Wales [2025] EWHC 1018 (Admin), Fordham J restated the perennial reminder of the meaning of “embargo” on a judgment means as between the parties (who may see a court embargoed draft judgment) and not anyone else (eg journalists).
• R (HJK) v Director of Legal Aid Casework [2025] EWHC 774 (Admin), Calver J recalled that the criterion for legal aid exceptional case funding was: were the claimants able to present their cases without obvious unfairness (Calver J thought not in this case) as defined by R (Gudanaviciene) v Director of Legal Aid Casework [2014] EWCA Civ 1622, [2015] 1 WLR 2247: ‘the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that Art 6(1) will require the provision of legal services’.
• And in Dervis v Deniz [2025] EWHC 902 (Ch) a basic pleading point: Edwin Johnson J, on an appeal, refused to admit fresh email evidence between couples where emails had not been pleaded below.

If I am right in the above April cases, the first four (two from the Supreme Court and two from the Court of Appeal) may be said to have moved the law along.

Citation only of what adds to the common law

If an analysis of cases was done as I have attempted above, the volume of cases which could reasonably be cited would be tested by their precedent value (those first four in the above list for April for family proceedings). On that basis, the length of skeleton arguments prepared by advocates should drop substantially over-night.

Indeed the 2001 PD requires advocates to justify each and every citation of authority thus:

“8.1 Advocates will in future be required to state, in respect of each authority that they wish to cite, the proposition of law that the authority demonstrates, and the parts of the judgment that support that proposition. If it is sought to cite more than one authority in support of a given proposition, advocates must state the reason for taking that course.”

Meanwhile, with all due respect to recent Presidents of the Family Division, the publication of minor judges’ judgments should no longer be encouraged. Though they may add to transparency, they cannot add to the common law.