In this paper, we interrogate the legitimate bounds of the judicial development of family law in England and Wales. Reflecting the nature of much of family law, our focus is on judicial engagement with statutes, within which a major concentration of the work of the family law judges is guiding and supervising statutorily conferred discretion. Drawing, by way of illustration, on judicial engagement with two core codifying family law statutes, the Matrimonial Causes Act 1973 and the Children Act 1989, we highlight various ways in which family law judges ‘operationalise’ family law statutes, including, and beyond, their conventional role in interpreting the words of a statute. In particular, we explore the legitimate scope of judicial power to offer general guideline judgments ‘controlling’ the exercise of discretion …
Gillian Douglas and Stephen Gilmore, The (Il)legitimacy of Guideline Judgments in Family Law: The Case for Foundational Principles, King’s Law Journal. Published online: 20 Mar 2020. https://doi-org.ucc.idm.oclc.org/10.1080/09615768.2020.1741155.