‘Case law’ is a term that you might hear quite often if you find yourself in family proceedings. This is a term that arises because of the particular nature of how the law works in England and Wales.

The first thing to note is what we’ve said above, about the law in England and Wales. This is because in the UK, there are three jurisdictions. A jurisdiction is a specific area that defines the reach that a court has. In many countries there is only one jurisdiction, for example in France the law is the same wherever you go as there is only one jurisdiction. In the USA by contrast, each state has its own jurisdiction. This means that the law in New York is different to the law in California. In the UK we have three different jurisdictions: England and Wales, Scotland, and Northern Ireland. The law is different in the three jurisdictions to a greater or lesser degree. So when we talk about ‘our’ law, we are talking about the law of England and Wales.

Our law is of two main types. The first type is made by Parliament and given Royal Assent by the King, and is usually called an ‘Act’ of Parliament or a ‘statute’. In family proceedings for example, two acts that we use often are called the Matrimonial Causes Act 1973 and the Children Act 1989. Some other acts that you might have heard of are the Magna Carta 1297, the Human Rights Act 1998, or the European Union (Withdrawal) Act 2018. The oldest act of Parliament still in force is the Statue of Marlborough 1267.  Acts are often designed to provide a full structure for how the law is to work in a specific area, sometimes changing the previous law completely.  They are debated, rewritten and argued over. They often follow long consultations. Even once they are agreed, it can take some time for them to gain Royal Assent and come into force. Because of their nature, an act of Parliament usually takes a long time to debate and come into force.  

The other main type of law in England and Wales is judge-made law, called ‘case law’. This is usually much more specific and is about the interpretation of acts or statutes.  Each case takes some part of the law (usually in an act) and then applies it to the specific facts of the person’s case before the court. This means that case law often deals with much more detailed questions, and the judge’s role is to apply the law to those specific questions, which puts meat onto the bones of the acts.  For example, in the Children Act 1989, section 1 provides that when a court is determining any question regarding the upbringing of a child, the child’s welfare is the paramount consideration. Section 1(3) then sets out a list of factors that are relevant to welfare, such as the child’s ascertainable wishes and feelings (considered in the light of their age and understanding), their physical, emotional and educational needs, any harm they have suffered or are at risk of suffering, and the ability of their parents to meet their needs. It is the case law that has followed the Children Act 1989 however that answers the smaller questions, like what ‘ascertainable’ wishes and feelings means, and how we consider them in the light of a child’s age and understanding? How do we judge what ‘harm’ a child might be at risk of suffering, and how we define ‘harm’ in the first place?  What needs does a parent have to be able to meet, and how do we judge their ability? These are all questions where the answers are developed in case law.

Judges cannot make case law that is contradictory to the original acts; they can only interpret the acts based on the situations before them. We also have the rule of ‘precedent’, which means that a lower court has to follow any case law made by a higher court (like the Court of Appeal or the Supreme Court). The Court of Appeal can overturn its previous decisions in a new case if it now believes they are wrong. Decisions of the Supreme Court can only be overturned by the Supreme Court itself or by Parliament making a new act. However decisions of the lower courts are still important; they show us how the courts are interpreting the law every day and they often herald when an area of the law starts to be problematic before it gets up to the higher courts.

The big benefit of case law is how quickly it moves. Judges give decisions every day on cases that are before them. This means that an act made in 1973 or 1989 (or even earlier!) can still be relevant today, because the judges have interpreted these acts to new situations and the case law has developed to deal with them. This is why the law can still address points arising from modern concepts, such as assisted reproduction and genetic testing issues, cryptocurrency, online child exploitation, cyberstalking, designer drug abuse, and gender identity issues, even though they were not even thought of at the time the underlying acts of Parliament were passed.  This means that the law can keep up with how quickly society moves, which is of course to huge benefit of everyone who finds themselves needing to rely on it.

If you would like to talk to us about your family situation and want some advice, please do not hesitate to contact Kamal, Callie or Alison.