header-logo header-logo

Where does law shade into discretion?

26 January 2018 / David Burrows
Issue: 7778 / Categories: Features , Family
printer mail-detail
nlj_7778_burrows

Breaking (new) law: David Burrows reports on the challenges of Re M (Children)

  • What are the Court of Appeal limits on review of a judge’s discretion in cases of paramountcy of a child’s welfare is in issue?
  • How far is a child’s view material to a case?
  • What duty does the court have `positively to promote contact`?

The recent Re M (Children) [2017] EWCA Civ 2164, [2018] All ER (D) 16 (Jan) raises questions about the extent to which an appellate court is by law permitted to impose its own views where statute has given discretion to a judge to decide a particular issue. The law on this point arises in all judicial decision-making, notably—under review here—in child arrangements order cases; and has been considered authoritatively by the Supreme Court/House of Lords over the past 30 years (four of many examples appear below).

In the Re M case the appeal judges sent back for reconsideration the contact application of a transgender father. She was seeking contact with her five children:

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

Freeths—Ruth Clare

Freeths—Ruth Clare

National real estate team bolstered by partner hire in Manchester

Farrer & Co—Claire Gordon

Farrer & Co—Claire Gordon

Partner appointed head of family team

mfg Solicitors—Neil Harrison

mfg Solicitors—Neil Harrison

Firm strengthens agriculture and rural affairs team with partner return

NEWS
The Crown Prosecution Service (CPS) has launched a recruitment drive for talented early career and more senior barristers and solicitors
Regulators differed in the clarity and consistency of their post-Mazur advice and guidance, according to an interim report by the Legal Services Board (LSB)
The Solicitors Act 1974 may still underpin legal regulation, but its age is increasingly showing. Writing in NLJ this week, Victoria Morrison-Hughes of the Association of Costs Lawyers argues that the Act is ‘out of step with modern consumer law’ and actively deters fairness
A Competition Appeal Tribunal (CAT) ruling has reopened debate on the availability of ‘user damages’ in competition claims. Writing in NLJ this week, Edward Nyman of Hausfeld explains how the CAT allowed Dr Liza Lovdahl Gormsen’s alternative damages case against Meta to proceed, rejecting arguments that such damages are barred in competition law
The next generation is inheriting more than assets—it is inheriting complexity. Writing in NLJ this week, experts from Penningtons Manches Cooper chart how global mobility, blended families and evolving values are reshaping private wealth advice
back-to-top-scroll