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  1. Discretion. It is a word embedded in the family lawyer’s mental lexicon. What does it
    mean? The instinctive response of many, perhaps most, is that it means that a judge has a virtually limitless freedom to do what he or she subjectively thinks is fair. Consider the famous words of Lord Justice Ormrod in Martin v Martin [1978] Fam 12:

    “It is the essence of such a discretionary situation that the court should preserve, so far as it
    can, the utmost elasticity to deal with each case on its own facts. Therefore, it is a matter of trial and error and imagination on the part of those advising clients. It equally means that decisions of this court can never be better than guidelines. They are not precedents in the strict sense of the word. There is bound to be an element of uncertainty in the use of the wide discretionary powers given to the court under the Act of 1973, and no doubt there always will be, because as social circumstances change so the court will have to adapt the ways in which it exercises discretion.” 

  2. Over the ages words to similar effect have been incanted like a mantra. For example, Chief Justice Gibbs in Mallet v Mallet (1984) 156 CLR 605 at 609, said that the courts "cannot put fetters on the discretionary power which the Parliament has left largely unfettered.". To like effect Lord Justice Moylan recently in Work v Gray [2017] EWCA Civ 270 at [81] spoke of section 25 of the Act of 1973 giving the court an “unfettered discretion”. I could cite countless other examples. 
  3. In my address to you I will argue that this is to worship a false god. I will argue that most so-called discretionary powers are in fact nothing of the sort but are in fact commands to render a qualitative or value judgment. I will further argue that where a true discretion exists the freedom of manoeuvre, the margin of appreciation if you like, is much more limited than is generally supposed. 
  4. Many so-called discretionary rights are in fact non-existent. Consider the ubiquitous “discretionary charge” added to your bill by every bar and restaurant. Apart from Larry David in Curb Your Enthusiasm can you think of anyone who would ever refuse to pay that charge?

Read the full speech here.

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