By Prof Judith Masson, Professor of Socio-Legal Studies (University of Bristol Law School).
One key piece of knowledge all law students are expected to grasp early on in their legal career is the difference between what a judge says – dicta or obiter dicta and what a case means – the ratio or ratio decidendi. Even when they know the difference, students and practising barristers often prefer to reach for a quotation from a case. It can be comforting to use a well-rounded phrase from Smith J or Jones LJ and it may at first glance suggest wisdom when it really is just about memory. However, reliance on dicta is a really bad habit, does not make better lawyers and can seriously undermine what the law means.
In the hands of some judges dicta are powerful ways of communicating ideas – judicial soundbites – which make the case and the judge memorable. Lord Denning was a past master at this, making it easy to remember the facts of cases, but not always the law. Indeed Lord Denning’s skill with language enabled him to make or even make up law. Of course he was largely dealing with Common Law, developing contract and tort law rather than interpreting statute.
More recently, the use of dicta has come to plague the family courts. Rather than stating that adoption without parental consent ‘must be required’ for a child’s welfare it was said in Re B  UKSC 33 that adoption was ‘a last resort’ Lord Neuberger at para 104 and ‘where nothing else will do’ Lady Hale at para 198. This lead was followed by The President of the Family Division in Re B-S  EWCA Civ 1143 to justify setting out a long list of requirements for social work evidence and the judgments in adoption cases: It was ‘time to call a halt’ to ‘sloppy practice’. The requirements were treated as if laid down in statute, and it was 15 months before The President stated that these were only matters of good practice, and that Re B-S had not changed the law. Despite not being law, the dicta in Re B and Re B-S reverberated through children’s services departments and the Family Courts; plans for children’s adoption declined substantially. It really was quite easy to change established practice through dicta which said it was wrong, even though the law, statute law had not been amended.
This focus on dicta resulted in some bad decisions – bad for children who were placed with people they had never met because they were relatives, bad for adopters because they had to go to the Court of Appeal in order to secure a legal relationship with a child they had looked after for years, and bad for birth parents who were allowed to think that they might be able to reclaim their child long after he or she had settled into their adoptive family. However, McFarlane LJ set the record straight in Re W  EWCA Civ 793 although he clearly felt the need of a soundbite in order to get the message across, ‘The phrase “nothing else will do” is not some sort of hyperlink’ to the right decision without the need for a full analysis.
Adoption cases are not the only ones to have fallen under a spell of dicta. Local authority use of the provisions relating to looking after children under the Children Act 1989, s.20 have also been distorted. In Re N  EWCA Civ 1112 the President used his judgment in a case on jurisdiction in care proceedings to make sweeping statements about the meaning and use of s.20. Not only did this result in the rush to bring proceedings to replace arrangements which had been agreed by parents, it also generated claims against local authorities by parents who claimed their rights under the European Convention on Human Rights, arts 6 and 8 had been breached because the local authority had kept their children in s.20 care without their informed consent, or for too long instead of getting a court order. One such case, LB Hackney v Williams  EWCA Civ 26 has restored order by reasserting the difference between ratio and dicta.
It is tempting to quote directly from Williams but that would undermine my message that ratio(nes) are for the rule of law and dicta are for dictators. The Court of Appeal noted that claims for breach of rights must be founded on rights, and could not be based on the failure of a local authority to follow what could be no more than a judicial view of good practice. The law on provision of accommodation was set out in Children Act 1989, s.20, and the statute did not require informed consent (or any consent in specific circumstances); parents could only reclaim their children where they were ‘able and willing to care’ for them as the plain words of the provision state. The Court of Appeal appeared to allow judges a free hand to issue good practice guidelines (which are not law). Judges probably cannot be stopped from doing this. However, in an interdisciplinary area like family justice, good practice requires a degree of consensus that dicta and edicts will not achieve.