This chapter looks at what happens in issues of child protection when compulsory intervention in the form of care or supervision applications is needed. It considers the legal tests, the processes, and the practicalities involved in proceedings and decisions about what should happen after intervention. For intervention to take place, the local authority must satisfy the court that the child in question is suffering or likely to suffer significant harm attributable to their care or to them being beyond parental control. As far as the court is concerned, the best interests of the child are paramount. The court has to consider all realistic options for the child's future.
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12. Child Protection: Care, Supervision, and Adoption
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10. Constitutional conventions
After the legal sources of the UK constitution considered in previous chapters, this chapter turns its attention to an important non-legal source of the UK constitution: its constitutional conventions. It will be shown that constitutional conventions relate to practical and significant political matters which allow the UK constitution to function. They also represent a means by which the executive branch can be made accountable for its actions. The discussion explores the nature of constitutional conventions, gives examples of constitutional conventions, such as ministerial responsibility, enforcing conventions, the Cabinet Manual, and investigates the courts and conventions. Codification of conventions and the importance of conventions in relation to devolution is also discussed.
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12. The royal prerogative
This chapter begins by discussing the origins and meaning of the term ‘royal prerogative’. It identifies some examples of prerogative powers and considers how certain personal or reserve powers of the monarch might be exercised in practice. The chapter also explores the relationship between prerogative power and statutes and focuses on how the courts have dealt with the prerogative. The chapter also discusses the adaptation of prerogative powers, the relationship between the prerogative and the courts, and the courts’ recent willingness to review the exercise of certain prerogative powers. The chapter concludes by looking at several ways in which the prerogative could be reformed.
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11. Executive Power and Accountability
Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter examines the nature and extent of the power that the executive uses to run the country and begins by defining executive power, and by explaining where it is derived and who may exercise it. It then discusses the mechanisms by which an executive can be called to account for its exercise of power; the extent to which Parliament may hold the government accountable; and the extent that courts may hold the government accountable.
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17. Boundaries of Judicial Review
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter discusses the scope of judicial review. Judicial review is a procedure for obtaining the remedies specified in the Senior Courts Act 1981, namely the quashing order, the prohibiting order and the mandatory order, and declaration and injunction. The scope of judicial review, therefore, is the same as the scope of these remedies. Their boundaries, as set out already, are fairly clear, but in the non-statutory area they are uncertain.
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13. The Rule Against Bias
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter begins with a discussion of judicial and administrative impartiality, including cases when a judge is disqualified because they may be or fairly suspected to be biased, a history of the test bias, and application of the ‘fair-minded and well-informed observer’ test. It then describes the causes and effects of prejudice.
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19. Remedies
Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the remedies granted by the court. If a claimant successfully establishes that the public authority has acted in contravention of one of the grounds of review, then the court may grant a remedy. The purpose of a remedy is to tell the public authority what it has to do to comply with the judgment and to ensure, as far as possible, that it obeys the courts’ decision. There are two main types of remedies available in judicial review cases: ordinary remedies (injunction, declaration, and damages) and prerogative remedies (quashing order, prohibiting order, and mandatory order). The chapter also discusses situations that may cause the court to refuse a remedy and the courts’ powers to grant a remedy under the Human Rights Act 1998 (HRA 1998), including a declaration of incompatibility in accordance with section 4 HRA 1998.
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4. Dispute Resolution for Businesses
This chapter identifies courts and tribunals as the place where the laws discussed in the previous chapters are interpreted and utilized in the legal system. The jurisdiction of the courts and the personnel within them are described and a comparison is drawn between these forums for the administration of justice. It is important for those in business to be aware of the work of at least one tribunal—the Employment Tribunal, as many employment-related disputes ultimately end up here. Also, the courts in the English legal system, and the increasing use of alternative dispute resolution mechanisms, are relevant to businesses as they are used either to settle disputes or to avoid them altogether. Because the term ‘court’ is difficult to define in any practical sense, the chapter uses a description of what a court does.
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10. Private Law Decisions about Children
Parents and caregivers are constantly making decisions about the upbringing of children in their care. This chapter looks at how courts go about doing what is best for the child or children in question in any given case. It considers examples of case work and common types of application that come before the court. In particular, it looks at applications about where a child should live and when they should spend time with a non-resident parent. The chapter ends by looking at cases involving relocation across jurisdictions and child abduction.
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4. Financial Provision on Divorce
One of the main issues that the parties need to consider when a marriage or civil partnership ends is the financial consequences of the divorce, dissolution, or judicial separation. Amongst other things, they need to consider where they are going to live and what money they need to live on in the future. Their current assets will need to be evaluated and divided accordingly. The parties do not always agree on how to do this. Whatever they decide, the court has to approve of the decision. The chapter looks at the courts' powers, the legal principles they apply, the practical implications, and the problems that may arise in financial remedy practice. A number of different scenarios are used to help with this analysis.
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23. Interim Applications
An order is a formal decision by the court granting a remedy or relief to a party, usually in the stages before the final determination of a case. Interim orders are sometimes made after the substantive hearing of a claim, and sometimes the relief granted at trial includes various types of orders. This chapter discusses pre-action interim remedies; obligation to apply early; applications with and without notice; interim hearings; summary determination of interim costs; and varying or revoking interim orders.
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3. Domestic Sources of Law: Case Law
This chapter continues the discussion of sources of domestic law, focusing on material produced by the courts through cases. It covers the reporting of cases, the hierarchy of courts, legal principles, and the operation of precedent. The courts operate a system of precedent known as stare decisis (‘let the decision stand’). The type of precedent set depends on the court sitting, with the most complicated rules occurring in the Court of Appeal. As a general rule of thumb, the court setting the precedent will bind every court below it but the real question is under what circumstances that court is bound by itself.
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13. Pre-Trial Matters
This chapter on the criminal justice system focuses on preliminary issues, i.e. some of the issues that take place before trial begins. A prosecution begins at the earliest stage through a defendant being charged by the police but under the authority of the Crown Prosecution Service (CPS). The CPS must then review the decision to prosecute, which requires the CPS to have reference to two prosecution tests (evidential and public interest tests). The CPS has the ability to issue out-of-court disposals in appropriate cases as alternatives to prosecution. If a prosecution does take place, it is necessary to identify in which court the proceedings will be heard. Crimes are divided into three categories: summary, indictable-only, and either-way. Criminal matters are heard in the magistrates’ court and the Crown Court and the categorization of offences has an impact on where the matter should be heard.
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23. Interim Applications
An order is a formal decision by the court granting a remedy or relief to a party, usually in the stages before the final determination of a case. Interim orders are sometimes made after the substantive hearing of a claim, and sometimes the relief granted at trial includes various types of orders. This chapter discusses pre-action interim remedies; obligation to apply early; applications with and without notice; interim hearings; summary determination of interim costs; and varying or revoking interim orders.
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13. The nature of judicial review
Judicial review is a procedure whereby the courts determine the lawfulness of the exercise of executive power. It is concerned with the legality of the decision-making process as opposed to the merits of the actual decision. Thus it is supervisory rather than appellate. Emphasis is also placed on the fact that the jurisdiction exists to control the exercise of power by public bodies. This chapter discusses the supervisory jurisdiction of the courts, procedural reform, the rule in O’Reilly v Mackman, the public law/private law distinction, collateral challenge, and exclusion of judicial review. The procedure for making a claim for judicial review under the Civil Procedural Rules (CPR) Pt 54 is outlined, and the prospect of further reform is noted.
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9. Errors of law and control of fact finding
Administrative authorities deciding someone’s legal position must determine what the law is, and find the facts, and apply the law to the facts. This chapter asks how the courts control the exercise of power involved in each of those three elements of the application of the law. The chapter explains the famous decision of the House of Lords in the Anisminic case, and explains why that decision does not support the doctrine of ‘review for error of law’, which is commonly thought to have been established in Anisminic. The chapter explains why a power to apply the law is a discretionary power and concludes with a discussion of the fundamental union (downplayed and sometimes denied by the judges) between judicial review for error of law and other forms of control of discretionary power.
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3. The judicial function in the law of evidence
This chapter discusses the different functions in a court and how the court is composed of a tribunal of law and a tribunal of fact. In a jury trial, the judge decides matters of law and is the tribunal of law, while the jury is the ‘fact-finder’, the tribunal of fact. In a non-jury trial, the judge or magistrates perform both functions. This chapter discusses the functions of the judge in legal issues concerning evidence and, in particular, when a case is withdrawn from the jury because there is ‘no case’; judicial discretion; and admissibility of evidence illegally or unfairly obtained.
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7. The Approach of the Courts to ADR
This chapter focuses on the approach of the courts to alternative dispute resolution (ADR). Parties are required to consider ADR before proceedings are issued by the protocols and Practice Direction—Pre-action Conduct. If ADR is not undertaken before issue, then it should be considered at the track allocation stage (when all the statements of case have been filed), and again after exchange of documents, and also when witness statements and expert evidence have been exchanged. The court will actively consider whether attempts have been made to settle the dispute by ADR at any case management conference, and may direct the parties to attempt ADR. If the parties reject ADR, before issue or at any stage of the litigation, they should have reasonable and cogent reasons for doing so and may be required to explain these reasons to the court. Moreover, the courts will seek to uphold and enforce ADR clauses in contracts.
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10. Retention of Discretion
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter examines the rules which govern discretionary power. It focuses on the rules which ensure that discretionary power should be wielded only by those to whom it is given and that they should retain it unhampered by improper constraints or restrictions. Topics discussed include delegation; surrender, abdication, dictation; over-rigid policies; restriction by contract or grant; and estoppel.
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9. Problems of Invalidity
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter begins with a discussion of collateral proceedings, identifying the situations in which the court will and will not allow the issue of invalidity to be raised. It then explains the rules on partial invalidity, standard and burden of proof, and invalid and void administrative acts.
