A Note on Citation

In accordance with the Practice Guidance – Transparency in the Family Courts – Publication of Judgments issued by Sir Andew McFarlane P on 19 June 2024 there has been a significant increase in published judgments (particularly at Circuit Judge/Recorder and District Judge/Deputy District Judge level) in recent years.

However, most of these judgments are not citable. The rules that apply to the certification of judgments as citable are as set out below.

The Practice Note (Citation of Cases: Restrictions and Rules) [2001] 2 All ER 510, [2001] 1 WLR 1001 promulgated by Lord Woolf MR on 8 April 2021 states:

‘6.1. A judgment falling into one of the categories referred to in para 6.2 below may not in future be cited before any court unless it clearly indicates that it purports to establish a new principle or to extend the present law. In respect of judgments delivered after the date of this Direction, that indication must take the form of an express statement to that effect. In respect of judgments delivered before the date of this Direction that indication must be present in or clearly deducible from the language used in the judgment.

6.2. Paragraph 6.1 applies to the following categories of judgment: applications attended by one party only; applications for permission to appeal; decisions on applications that only decide that the application is arguable; county court cases, unless (a) cited in order to illustrate the conventional measure of damages in a personal injury case, or (b) cited in a county court in order to demonstrate current authority at that level on an issue in respect of which no decision at a higher level of authority is available.

6.3. These categories will be kept under review, such review to include consideration of adding to the categories.’

FPR 2010 PD 27A para 4.3A.2 states:

‘Attention is drawn to paragraph 6 of Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 and to Practice Direction (Citation of Authorities) [2012] 1 WLR 780 (both set out in The Family Court Practice) which must be complied with. The reference to “county court cases” in para 6.1 of the first practice direction should be read as including family court cases decided by a judge other than a judge of High Court judge level. Therefore, a judgment on an application attended by one party only, or on an application for permission to appeal, or that only decides that the application is arguable, or by the county court, or in the family court of a judge other than a judge of High Court judge level, may not be cited or included in the bundle of authorities unless either (i) the judgment clearly indicates that it purports to establish a new principle or to extend the present law or (ii) the court for good reason has specifically directed otherwise.’

Further guidance was given by the President of the Family Division in Citation of Authorities: Judgments of Circuit Judges and District Judges issued on 24 February 2025. After noting (at paragraph 4) that the Practice Direction on the Citation of Authorities [2001] WLR 1001 ‘has not always been followed’ the President set out the following ‘new principles’:

‘5. It follows that judgments at Circuit and District Judge level should not be cited unless they contain an express statement that the judge intends that the judgment should be citable (i.e. relied upon in the future in respect of that legal issue). Judgments that do not contain such an express statement will not be citable. These judgments can and should be published in the usual way to promote transparency but will not be capable of being referred to as primary authority.

6. It is not expected that the practice of including a statement as described above will become common. It will not apply to judgments where the judge has applied existing law and/or which provide examples of how the law operates in practice. An express statement that a judgment is intended to be citable should be reserved only for (probably very rare) cases where new ground is being broken. A judge who is considering including such a statement within a published judgment should only do so with the approval of the appropriate leadership judge (identified below).’

In relation to past FRC judgments which contain no such statement but were intended to address novel points of law, with the approval of Peel J a number of cases below High Court level have been retrospectively certified as suitable for citation pursuant to this guidance. A list of these cases – and the individual citation statements – can be found at https://financialremediesjournal.com/citation-guidance/

With immediate effect summaries on the Financial Remedies Journal of (i) family court cases decided by a judge below High Court judge level (i.e. ones which include a (B) as part of the neutral citation); (ii) applications attended by one party only (at all levels); and (iii) applications for permission to appeal (at all levels) will include a sentence at the end of the summary stating:

‘This judgment [has] [has not] been certified as citable pursuant to the Practice Note (Citation of Cases: Restrictions and Rules) [2001] 1 WLR 1001’.

19 August 2025