Mani Basi, Barrister at 4PB, has recently released his book: A Practical Guide to Exercising the Inherent Jurisdiction in Family Law Proceedings. We recently asked him to delve deeper into why he decided to write the book.
This is your second book of 2023, tell us more about why you decided to write another book?
That is correct, my first book was released in May 2023 and is titled ‘A Practical Guide to Stranded Spouses in Family Law Proceedings’. Following on from this book, I was quite surprised with the amount of interest in the topic I wrote about and I had the opportunity to speak at various events in relation to it. In particular, the issue of stranded spouses and abandonment raised interesting questions about the scope and power of the High Court in these very emotive cases. The powers lie in the inherent jurisdiction of the High Court and I touched upon the inherent jurisdiction and the use of wardship in this book. As a result of this, I thought it would be a good idea to write on the inherent jurisdiction to enable people to understand what it is, its limitations and the full force of its power. In November 2023, I was fortunate enough to publish my second book titled ‘A Practical Guide to Exercising the Inherent Jurisdiction in Family Law Proceedings’. This book focuses on the use of inherent jurisdiction but is much more wide-ranging than my previous book, because it considers its power across all areas of family law relating to children.
What is the inherent jurisdiction?
The issue of what the inherent jurisdiction is and how it can be exercised is one that has been considered throughout many years within the High Court. Sir James Munby, the former President of the Family Division once described it as in the context of the High Courts powers:
“The High Court, of which the Family Division is part, is a superior court of record. It has unlimited jurisdiction. The family court, in contrast, is a creature of statute, with its jurisdiction defined by statute. The jurisdiction of the family court, although very extensive, is not unlimited”[1]
Upon the inherent jurisdiction being exercised, a responsibility arises on the High Court to ensure that a child who is the subject of proceedings is protected and properly taken care of. This responsibility is can be found and set out in the Family Procedure Rules [PD12D, para 1.1].
Why is the inherent jurisdiction so important?
The inherent jurisdiction can offer children subject to proceedings immediate relief in many different circumstances. It is a form of protection that parents or other organisations can seek to exercise, in the interests of the subject children. For example, Lord Donaldson of Lymington MR said in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, p 13 (in a passage approved by the House of Lords on appeal, as it was then) stated:
“the common law is the great safety net which lies behind all statute law and is capable of filling gaps left by that law, if and in so far as those gaps have to be filled in the interests of society as a whole. This process of using the common law to fill gaps is one of the most important duties of the judges.”
In short, the inherent jurisdiction is a relief to be utilised in circumstances where a power to do something is not contained within a statutory power. Case law is therefore essential in considering in what circumstances has the inherent jurisdiction been utilised. The inherent jurisdiction provides wide-ranging powers which can utilised in many different areas of family law, ranging from child abduction cases, public law proceedings, issues relating to medical intervention of children and the placement of children. The Supreme Court once said in Re T (A Child) [2021] UKSC 35 at paragraph 67:
‘the inherent jurisdiction has had to rise to the challenge of some of the most extreme human and moral dilemmas imaginable…’.
What are the most common cases the inherent jurisdiction is used for?
Typically, the most well-known areas where the inherent jurisdiction is known for relates to that of child abduction, particularly in cases where the 1980 Hague Convention is not in existence. For example, when children are abducted to a non-hague state or where children come to England from a non-hague state and a left behind parent seeks their return back to that state. The inherent jurisdiction in this context is a useful tool, particularly in preventing abduction and / or returning children back. There are a number of powerful tools at the courts disposal to utilise in these circumstances, namely Tipstaff orders. Notwithstanding this, the inherent jurisdiction is commonly also used in public law proceedings as well, for example, where there is state intervention.
Where can we find out more about the inherent jurisdiction?
Case law is the best source of information. Over the years so many interesting and fascinating cases have reached the arenas of the High Court where the court has outlined their ability to exercise the inherent jurisdiction in particular circumstances. I would however, say my book is a good go to guide as well!
Tell us more about your book?
My book is divided into different chapters and in each of them I set out the procedure and process for exercising the inherent jurisdiction, as well as to pin point and outline difficulties that practitioners in this field may be faced with and how, if possible, is best to overcome them. Therefore, I consider issues such as: child abduction, public law proceedings (local authority involvement, including deprivation of liberty, injunctive powers), private law disputes and other injunctive provisions that are in existence. I focus from the perspective of all possible parties, applicants, respondents, children and other interested parties to proceedings and organisations.
In the book I focus on the nature of the evidence, how to commence proceedings, the pitfalls in certain approaches and in contrast, the advantages of different approaches. I go through the history and current case law on many topical areas. For example, I set out the recent case law in respect of the inherent jurisdiction for non state returns / abductions, deprivation of liberty orders, disputes relating to medical intervention, treatment (for example vaccinations), orders that can be made pursuant to the inherent jurisdiction (tipstaff orders, other injunctive orders, disclosure orders). I also focus on issues relating to enforcement in inherent jurisdiction proceedings such as committal hearings. Furthermore, throughout the book I deal with issues relating to vulnerability, domestic abuse and the approach to welfare and fact-finding hearings across different areas of family law.
Mani Singh Basi
His books are available on Amazon Next Day delivery here and his Chambers profile can be accessed here.
