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This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
Most recent Practice notes
Practice Note This Practice Note explains how Brussels I and Brussels II bis apply and the breadth of their reach for jurisdiction in EU family proceedings, including deciding which Member State’s courts are competent. It further offers direction on the EU Maintenance Regulation and how it dovetails with other rules. The effects of Brexit, with a focus on transitional measures, are examined as well, in this context for practitioners considering jurisdictional issues. At 11pm ( GMT) on 31 December 2020, the UK’s transition/implementation period following departure from the EU ended. From that moment (known in UK legislation as ‘ IP completion day’), core transitional schemes ceased and wide-ranging alterations came into force across the UK’s legal framework. This affects advisers assessing which forum has authority to hear a dispute. For assistance, see Practice Note: Family proceedings with EU...
This Practice Note This note introduces judicial separation proceedings issued before 6 April 2022. It outlines the need to establish one of the five facts under section 1 of the Matrimonial Causes Act 1973—adultery, unreasonable behaviour, desertion, two years’ separation with consent, or five years’ separation. It also describes the legal consequences of a decree of judicial separation. The Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) took effect on 6 April 2022. Cases issued by the court on or after 6 April 2022 are governed by DDSA 2020 and by procedural amendments to the Family Procedure Rules 2010, SI 2010/2955. For more detail, see Practice Note: Introduction to the Divorce, Dissolution and Separation Act 2020. Applications issued by the court on or before 5 April 2022 continue under the pre‑ DDSA 2020 regime. Those matters are unaffected by the...
Practice Note This Practice Note sets out which documents were required when starting judicial separation proceedings that began before 6 April 2022. It highlights the necessary paperwork, including the notice of proceedings and the acknowledgement of service. It also outlines what action to take if the marriage certificate cannot be located. The Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) took effect on 6 April 2022. Matters issued by the court on or after 6 April 2022 are governed by DDSA 2020 and by procedural changes under the amended Family Procedure Rules 2010, SI 2010/2955. For further information, see Practice Note: Introduction to the Divorce, Dissolution and Separation Act 2020 and Commencing and filing an application for a divorce, dissolution or judicial separation order (post- DDSA 2020). Proceedings issued by the court on or before 5 April 2022 continue under the pre‑ DDSA 2020 law....
This Practice Note relates to proceedings that were commenced prior to 6 April 2022. It outlines how to begin judicial separation proceedings, and what action to take where a prior petition is already on the file. It also offers practical guidance for preparing a petition, including when to withhold the petitioner’s address, what particulars must be set out, and the approach to drafting a statement of case. The Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) took effect on 6 April 2022. Proceedings issued by the court on or after 6 April 2022 are governed by DDSA 2020 and the procedural changes introduced under the amended Family Procedure Rules 2010, SI 2010/2955. For additional detail, see Practice Notes: Introduction to the Divorce, Dissolution and Separation Act 2020 and Commencing and filing an application for a divorce, dissolution or judicial separation order (post- DDSA...
Stop Press: On 31 March 2026, Sir Andrew Mc Farlane, President of the Family Division, released consolidated guidance on allocation and gatekeeping for children proceedings in the Family Court, coming into force on 5 May 2026. It supersedes the 2014 public and private law guidance and establishes a single framework regulating allocation for all children cases. The document confirms the function of gatekeeping teams, maps allocation choices to contemporary procedural routes (including Child Focused Courts), and reiterates, in particular, the core tenets of judicial continuity, proportionality, and the efficient deployment of judicial resources; as referenced, see News Analysis: Consolidated allocation and gatekeeping guidance for children proceedings issued. This Practice Note is in the process of being revised to incorporate the President’s guidance. It provides direction on issuing private children proceedings in the Family Court. It further outlines the approach to allocation and...
From 31 January 2020 (exit day), the UK left EU membership and ceased to take part in the EU’s political bodies and governance frameworks. Nonetheless, under the transitional measures in Part 4 of the Withdrawal Agreement, exit day began an implementation period ( IP), running until 11pm on 31 December 2020 ( IP completion day). See Practice Note: Brexit—introduction to the Withdrawal Agreement. The European Union ( Withdrawal Agreement) Act 2020 ( EU( WA) A 2020) gave domestic legal effect to the Withdrawal Agreement and contains various interpretative and consequential provisions. For those assessing Brexit’s effect on family law, these terms are key: exit day—31 January 2020 implementation period ( IP)—from 11pm on 31 January 2020 until 11pm on 31 December 2020 IP completion day—11pm 31 December 2020, which for many purposes replaced exit day across EU( WA) A 2020 and...
This Practice Note examines the considerations the court should weigh in disputes about internal relocation, where one parent proposes moving with their child to a different part of the UK and the other opposes. It surveys the case law and guidance, including the ruling in Re C ( Internal Relocation), and sets out the procedure to be followed. Internal relocation An internal relocation matter arises when a parent seeks to move with their child to another area of the UK and the other parent objects. For applications concerning permission to remove a child from the jurisdiction (external relocation), see Practice Note: Leave to remove-external relocation. A person named in a child arrangements order ( CAO) as the individual with whom the child is to live does not need permission to relocate within the UK in the way they would if intending to take the child to live...
This Practice Note sets out the process for obtaining an interim remedy under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, Pt 20, covering jurisdictional questions, evidential requirements, applications made without notice, and undertakings. It also notes requirements as to evidence and addresses without notice applications. For the range of interim orders the court may make, see Practice Note: Interim orders under FPR 2010, Pt 20. Various forms of interim relief beyond those expressly mentioned in FPR 2010, SI 2010/2955, Pt 20 can be pursued within family proceedings. The omission of a particular remedy from FPR 2010, SI 2010/2955, Pt 20 does not limit the court’s existing authority to grant it. For further guidance on other common interim remedies, consult the following Practice Notes: Procedure for maintenance pending suit Funding—legal services orders and costs allowances Procedure for an...
Practice Note This Practice Note explains the requirements governing interim orders in public law children court cases, setting out the tests and character of such orders, together with their length, impact and discharge. It further offers direction on assessments and medical or other examinations within interim stages. Interim orders comprise interim care orders ( ICOs) and interim supervision orders ( ISOs)......
The effect of the anti-avoidance provisions contained within sections 10–13 of the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975) Under the anti-avoidance measures in I( PFD) A 1975, ss 10–13, a person (including a trustee) who, during the deceased’s lifetime, received money, property or other assets can be required to pay sums or supply property to a claimant seeking reasonable financial provision under I( PFD) A 1975. These provisions operate against the donee and their estate, rather than against the particular money, assets or property transferred by the deceased. The remedy in I( PFD) A 1975, ss 10–13 is not a tracing remedy. When a claim for reasonable financial provision is issued, the claimant may couple it with an application effectively to claw back assets disposed of with the purpose of placing them outside the deceased’s net estate. This also...
When is it necessary to instruct a psychiatrist? Psychiatrists are often invited to evaluate the decision‑making capacity of protected persons ( Ps) who are the subject of proceedings before the Court of Protection. They are, on occasion, asked as well to offer a view on P’s best interests. For further guidance on mental capacity, see Practice Notes: Mental capacity—an introduction and Mental capacity—assessments and tests. It should be clearly recognised from the outset that instructing a psychiatrist is not invariably required in order to assess capacity. Capacity evaluations may properly and safely be undertaken by a broad range of professionals, including psychologists, general practitioners ( GPs), social workers, and speech and language therapists. In some matters, particularly where P’s capacity is borderline or fluctuating, instructing a psychiatrist to assess capacity can prevent significant delay and wholly unnecessary cost. This is especially true where the...
Neither section 25 of the Matrimonial Causes Act 1973 ( MCA 1973) nor Schedule 5, Part 5 of the Civil Partnership Act 2004 ( CPA 2004) expressly directs the court to deal with inherited assets, or with the parties’ inheritance prospects, as a discrete issue. Even so, questions linked to inheritance are taken into account within the broader headings of the parties’ financial resources, their contributions to the welfare of the family, and ‘all the circumstances of the case’. See also Practice Note: Contributions of the parties. In White v White, Lord Nicholls elaborated the distinction between matrimonial and non‑matrimonial property, but observed that ‘in the ordinary course, [inherited assets] can be expected to carry little weight, if any, in a case where the claimant's financial needs cannot be met without recourse to this property’. Accordingly, in practical application, whether an asset is...
Procedural table grant of representation and of every Applicants Spouse or civil partner of the deceased Spouse or civil partner of the deceased — I( PFD) A 1975, s 1(1)(a). Former spouse or former civil partner who has not entered into a later marriage or civil partnership — I( PFD) A 1975, s 1(1)(b). Cohabitant who, for the entire two years immediately before death, lived in the same household as the deceased as if a spouse or civil partner — I( PFD) A 1975, ss 1(1)(ba), 1(1A). Child of the deceased — I( PFD) A 1975, s 1(1)(c). Anyone whom the deceased regarded as a child of the family — I( PFD) A 1975, s 1(d). Any other individual who, immediately before the deceased’s death, was being maintained by the deceased — I( PFD) A 1975, s...
Time limits An action under the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975) should ordinarily be begun within six months of the date of a grant to the estate. Any application after that period may only proceed with the court’s permission. For guidance on time limits, see Practice Note: Family provision claims—preliminary issues— Time limits. Pre-action conduct There is no specific pre-action protocol for I( PFD) A 1975 claims, but both parties should have regard to the Practice Direction Pre- Action Conduct and Protocols. The court will expect the parties—bearing in mind the aims of placing them on an equal footing, saving expense, and proportionality—to observe that Practice Direction where appropriate and behave reasonably in exchanging information and documents relevant to the claim, and generally in attempting to avoid the need to issue proceedings. Conduct under the Practice...
The 2024 protocol A new framework on the Disclosure of Information between Family and Criminal Agencies and Jurisdictions (the 2024 protocol) has superseded the 2013 Protocol and Good Practice Model: Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings ( October 2013). With effect from 1 March 2024, the 2024 protocol governs the sharing of information and material between family and criminal agencies and jurisdictions. It covers all private and public family law proceedings, including contemplated public law cases, as well as all material held by the police. It has been characterised as ‘an essential starting point’. A working group, featuring the judiciary, local authorities, the police and the Crown Prosecution Service ( CPS), will review it in 2025. See also Practice Note: Public...
Please note, this Practice Note is confined to English law alone. Since devolution, a range of divergences has emerged between England and Wales concerning numerous elements of the legal rules governing the appointment of independent mental capacity advocates. IMCAs were established under the Mental Capacity Act 2005 ( MCA 2005). Their role is to support local authorities and the National Health Service ( NHS) in relation to people aged over 16 who lack mental capacity, where a choice is needed that will substantially affect their health and wellbeing, or their long-term care and accommodation. The independent mental capacity advocate service The service delivered by an IMCA is intended solely for situations in which the individual has nobody else available to assist them or to articulate their preferences, entitlements and requirements on their behalf......
All family practitioners ought to approach their work with a commercially minded approach to practice. Partners must ensure the firm as a whole turns a healthy profit, heads of department must deliver a profitable team, and each individual must be profitable to safeguard their business, their team or their role. Although making major changes to systems can be culturally or personally difficult, smaller, incremental actions that lift profit margins are usually far more attainable for virtually any practice. This Practice Note sets out practical suggestions designed to strengthen performance at both personal and firm-wide scale. Professional obligations The SRA Standards and Regulations apply. The key requirements set out within the SRA Standards and Regulations comprise the following: Principles Code of Conduct for Solicitors, registered European lawyers ( RELs), registered foreign lawyers ( RFLs) and registered Swiss lawyers ( RSLs) Code of Conduct for...
The matters to be decided within the welfare remit of the Court of Protection are frequently highly intimate, and commonly entail either the court endorsing the use of state authority, or exercising that authority itself, over an individual—such as by imposing limits on contact between the protected person ( P) and their relatives. It is therefore no surprise that human rights run through every facet of the court’s decision-making... The Human Rights Act 1998 and the European Convention on Human Rights The European Convention on Human Rights ( ECHR) was brought into domestic law by the Human Rights Act 1998 ( HRA 1998), which renders it unlawful for any public authority to act in a way that violates a person’s human rights. This binds all local authorities and National Health Service ( NHS) bodies, as well as the courts themselves. The Court of...
Applications to the Court of Protection Proceedings in the Court of Protection (the court) are regulated by the Court of Protection Rules 2017 ( COPR 2017) with the Court of Protection Practice Directions, rather than the Civil Procedure Rules 1998 and accompanying practice directions. When issuing an application to the court, locate the relevant provisions in COPR 2017 and the applicable practice direction(s). Applications should be lodged on the correct Court of Protection forms, as outlined in detail below. This Practice Note covers most applications to the Court of Protection. Identify any relevant practice directions before proceeding, and ensure the correct forms are used throughout as necessary. That said, a separate route applies where the request is to appoint a deputy for property and financial affairs. From January 2023, an upfront notification pathway became the standard approach for all property and affairs...
FORTHCOMING CHANGE: Following the Government’s reply to the Ministry of Justice and the Office of the Public Guardian ( OPG) consultation, Modernising Lasting Powers of Attorney, the Powers of Attorney Bill secured Royal Assent on 18 September 2023, becoming the Powers of Attorney Act 2023 ( PAA 2023). Once commenced, PAA 2023 will introduce amendments to the Mental Capacity Act 2005 ( MCA 2005) to deliver a more up-to-date lasting power of attorney ( LPA) service. The updates will include: Setting regulations so that those creating an LPA can choose to sign the document digitally or with a paper signature; Ending attorneys’ ability to register an LPA, meaning only the donor will be allowed to complete registration; Introducing regulations that set out identity verification requirements for registration applications; Establishing a single pathway for objections to...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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