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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:
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Introduction The strand of domestic law that originally arose from EU obligations and was captured by the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) as retained EU law ( REUL) is, from 2024, referred to as ‘assimilated law’. This change follows the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023). The new label signals notable shifts in the domestic standing and handling of assimilated law. Its objective is to advance the process of bringing former EU rules into the UK’s legal system and to support their reform... Reminder: what was retained EU law ( REUL)? To understand the move from REUL to assimilated law, it is useful to revisit REUL, which was established by EU( W) A 2018. For background on EU( W) A 2018, see Practice Note: Brexit—key legislation explained. After the Brexit...
This Practice Note explains the process and methodology for securing a disclosure or inspection order against a person who is not a party to family proceedings under the Family Procedure Rules 2010 ( FPR 2010), including illustrative examples from case law. It also outlines other avenues by which a disclosure order can be obtained, together with the implications where public interest immunity is claimed. For practical assistance on the exchange of information between criminal and family agencies and jurisdictions, see the Practice Note: The disclosure of information between family and criminal agencies and jurisdictions. Background The FPR 2010 contain no mechanism for inspection (previously called production) appointments, which existed under the Family Proceedings Rules 1991 ( FPR 1991). Under that earlier regime, the respondent to the application was required to attend before the court and bring the documents identified in the order. In...
The Presumption of Death Act 2013 ( PDA 2013) The PDA 2013 came into force on 1 October 2014 and applies solely to England and Wales. Before its commencement, a common law rebuttable evidential presumption treated a person as dead after a seven-year absence, alongside a patchwork of statutory measures (eg section 19 of the Matrimonial Causes Act 1973 ( MCA 1973) and section 37 of the Civil Partnership Act 2004 ( CPA 2004)) setting out specific procedures for different aspects of a missing person’s property and affairs, under which a missing person might be presumed deceased. PDA 2013 created a single mechanism to obtain from the High Court ( Family Division or Chancery Division) a declaration that a missing person is deemed to have died, effective for all purposes. The court must grant the declaration if satisfied that the missing person has died, or has not...
This Practice Note outlines the functions of the Secretary of State, operating via the Child Maintenance Service ( CMS), in assessing and recovering child support maintenance, together with the respective scope of both CMS jurisdiction and that of the court. It also reviews particular scenarios where bespoke jurisdictional rules apply, including for consent orders, existing orders, maintenance agreements, and provision from a deceased parent’s estate, as appropriate. See also the Practice Notes: Statutory child support scheme; the Child maintenance and financial provision—spouses and civil partners; and the Maintenance provision for children under Schedule 1 to the Children Act 1989. In relation to the courts’ general power to make orders in financial order proceedings on divorce or dissolution, see Practice Note: Financial proceedings—orders that can be made by the court. Role of the Secretary of State acting through the Child Maintenance Service ( CMS)...
Determining a person’s ability to marry, cohabit, consent to sexual relations, and agree to contraception involves matters that are highly sensitive and intensely personal, engaging individuals’ Article 8 rights to a personal and family life. This Practice Note first sets out the overall legal framework for capacity assessment under the Mental Capacity Act 2005 ( MCA 2005), and then considers the tailored tests developed by the courts for each issue, reflecting the careful balance between protecting vulnerable people and promoting self-determination. With a view to enabling vulnerable adults with learning disabilities and other cognitive difficulties to enjoy the advantages of married life and/or a sexual relationship, the applicable capacity tests have intentionally been pitched at a low threshold and are widely thought to require a lesser level of capacity than, for example, the standard for making a...
This Practice Note This Practice Note outlines the principal legal aspects of the UK’s exit from the European Union, setting out how jurisdiction, enforcement, recognition and procedure operate across the main categories of family cases. It signposts when key EU measures still apply in: matrimonial, civil partnership and financial remedy proceedings children proceedings applications for protection from domestic abuse requests made under the Taking of Evidence Regulation It addresses recognition, enforcement and jurisdiction throughout the period, and related procedure too. It also explains the material procedural shifts on either side of implementation period ( IP) completion day (11pm on 31 December 2020). On 31 January 2020 the UK ceased to be an EU Member State and withdrew from its political institutions and governance structures. Under Part 4 of the Withdrawal Agreement, exit day triggered an 11-month...
This Practice Note reviews the amended 2012 Criminal Injuries Compensation Scheme, which took effect on 13 June 2019. It sets out the tariff-based approach to valuing injuries, together with provisions on loss of earnings, care-related expenses, fatal accident claims, and the scheme’s maximum award available. See also Practice Note: Claims for compensation to the Criminal Injuries Compensation Scheme. The tariff system—the injury award A fixed schedule of awards is available to victims of criminal injury, from £1,000 up to £250,000. The schedule covers all categories of harm, including physical injury, psychological trauma, child loss, sexual abuse or assault, and contraction of life‑threatening diseases. Annex E ( Part A) addresses physical and mental health injury, while Part B deals with sexual and physical abuse and other payments. Under this tariff framework, the Criminal Injuries Compensation Authority ( CICA) sets compensation based on medical evidence. The...
Section 25(2)(a) of the Matrimonial Causes Act 1973 ( MCA 1973) Provides that a court must take into account the income, earning potential, property and any other financial resources that each spouse has, or can reasonably be expected to have, in the near future; and, as regards earning capacity, any enhancement it would be reasonable, in the court’s view, to expect a party to take steps to obtain. Parallel wording appears in the Civil Partnership Act 2004 ( CPA 2004) at CPA 2004, Sch 5 Pt 5, para 21(2)(a). The welfare, while under 18, of any child of the family attracts first consideration, though it is not the overriding factor. Courts frequently assess “property and other financial resources” apart from income and earning capacity, although the two topics can overlap—see Practice Note: Income and earning capacity of the parties. For practical direction on every factor the...
While the Court of Protection (the court) is able to issue a single, discrete order for a person who lacks capacity, that will not invariably be the most appropriate course. Where it is not, the court may instead direct that a deputy be appointed to handle the specific matter or to act on a continuing basis, particularly where the incapacity is expected to endure into the future. The court’s authority to appoint a deputy sits in section 16 of the Mental Capacity Act 2005 ( MCA 2005). From January 2023, the route for appointing a property and affairs deputy was altered. Before then, applications were paper-based, begun by lodging a COP1 form with supporting documents; the court would then issue the application, after which the relevant parties were served/notified. A new upfront notification model was trialled in 2021, under which the person to whom the...
At a Glance At a Glance provides benchmark data and statistics for financial remedy negotiations. Supported by the Family Law Bar Association ( FLBA), it is relied upon across every level of the courts and in negotiation settings. Lexis+® UK users can access financial charts, guidance and information, including Duxbury calculations, Galbraith tables, cost-of-living figures and an array of additional tables. Notes: All tables and materials have been comprehensively updated. Table 3B appears for the first time in this edition to mirror the express financial remedy procedure pilot scheme......
This Practice Note This Practice Note outlines the overarching principles of compensation, sharing and equality, alongside needs, and explains how the court applies them when exercising discretion in financial order proceedings. It reviews the leading authorities of White v White, Miller v Miller; Mc Farlane v Mc Farlane, later decisions, and Standish v Standish. In White v White, the House of Lords charted the course for the principles governing financial orders. Prior to White, outcomes in high‑net‑worth cases were capped by the financially weaker party’s ‘reasonable requirements’; once those needs were satisfied, the wealthier spouse often retained a markedly larger portion of the resources. White repositioned fairness as the guiding aim in financial cases, assessed by what the House of Lords termed ‘the yardstick of equality’. After White, a move away from equality requires sound justification. The judicial discretion is exercised with fairness as the...
Case law recognises multiple definitions of cohabitation. In relation to remedies open to cohabitants, the initial step is to demonstrate that the relationship is adequate to justify a particular remedy. The issue of whether cohabitation occurred may likewise arise on the breakdown of a marriage or civil partnership, eg when evaluating the relevance of pre-marital or pre-civil partnership cohabitation within financial proceedings as appropriate......
STOP PRESS Note that the President of the Family Division, Sir Andrew Mc Farlane, has released new guidance taking effect on 12 January 2026: President of the Family Division’s Guidance 2026 Non- Molestation Orders under the Family Law Act 1996 ( FLA 1996). It supersedes the Practice Guidance on non-molestation injunctions under FLA 1996 dated 14 July 2023 and features two annexes, a revised template for a non-molestation order under FLA 1996, s 42, and Form FL435 ( Response to a non-molestation order). In addition, the Family Justice Council has published Family Justice Council Best Practice Guidance for Practitioners on Making an application for a Protective Injunction under the Family Law Act 1996, which contains a Model Witness Statement with guidance notes at Annex 1. This Practice Note is in the process of being updated to take account of these...
Service after the issue of a financial application This Practice Note sets out how service should be handled once a financial application engaging the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, has been issued, covering applications for financial orders and financial remedy claims. It reviews the service provisions within FPR 2010, highlights best practice for effecting service, and explains the service of proceedings—whether undertaken by the court or by the applicant—on the respondent and on third parties. It addresses the service requirements for interim financial applications, proceedings under the Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA 1996), and claims brought under the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975)......
Proceedings by electronic means: procedure for an application for a consent order for a financial remedy in connection with matrimonial or civil partnership proceedings This Practice Note explains the effect of the Family Procedure Rules 2010, PD 41B, which prescribes the process by which an application for a consent order for a financial remedy, arising from proceedings for a matrimonial or civil partnership order, can be dealt with by electronic means. A separate digital route exists for issuing and progressing contested applications; see Practice Note: Online applications for financial remedies. Any reference in FPR 2010, PD 41B to ‘the online system’ is to the HM Courts and Tribunals Service ( HMCTS) platform known as the online financial remedy consent order service. That service forms part of My HMCTS, for which an organisation must register. Once registration is completed, cases can be handled online through...
What is a no contest clause A no contest clause, sometimes called a forfeiture clause, is a term in a Will that strips a beneficiary of their entitlement if they dispute the Will’s terms. Such clauses can also feature in trusts. As applications under the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975) have risen, interest in adding a no contest clause to a testator’s Will has similarly grown, as a way to deter or head off such claims. Can Family provision claims be excluded As a matter of public policy, it is widely accepted that the court’s jurisdiction cannot be excluded. Therefore, any Will provision purporting to bar a beneficiary from bringing an I( PFD) A 1975 claim would probably be ineffective and treated as void by the court. I( PFD) A 1975, ss 15 and 15A permit the court, on...
Judgment summons This Practice Note explains the criteria and process for deploying a judgment summons to enforce an order arising from family proceedings, with specific reference to human rights issues. Where a debtor is able to satisfy the liability yet refuses or fails to do so, the court may contemplate making a committal order. A judgment summons is issued under the Debtors Act 1869 ( DA 1869), and it requires the debtor to attend before the court. Provided the debtor has, or has previously had, the means to pay and nevertheless refuses or neglects to make payment, the court may direct imprisonment for a period not exceeding six weeks. The mandated procedural steps must be observed strictly and in full. In Prest v Prest, the Court of Appeal determined that the standard of proof is the criminal standard, and that the debtor cannot be...
The availability of legal aid (formerly public funding) in relation to family proceedings From 1 April 2013, the scope of legal aid for family matters was markedly curtailed when the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ( LASPOA 2012) came into force. This Practice Note outlines the key initial points to consider when advising a client who may qualify for legal aid. See also Practice Note: Implications of legal aid, which provides guidance for practitioners acting in proceedings where the opposing party is legally aided. In NJDB v United Kingdom ( App. No. 76760/12), the European Court of Human Rights held that the right of access to a court is not absolute; accordingly, it can be permissible to attach conditions to the award of legal aid based, inter alia, on a litigant’s financial position or their prospects of success in the...
This Practice Note sets out what a civil restraint order ( CRO) is and when the court may make one under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, 4.8 and FPR 2010, PD 4B. It focuses on general civil restraint orders ( GCROs), covering who may apply, their effect and how long they last (including how they can be extended or continued). It also addresses matters relevant to a party bound by a GCRO, such as seeking permission to amend or discharge the order and the consequences of breaching it... Civil restraint orders in family proceedings A CRO is not intended to bar access to the courts; rather, it safeguards the integrity of the court’s process by filtering applications made by litigants who are subject to a CRO. In short, applications that fall within the scope of an existing CRO must be...
Mesher or Martin orders A court might consider it suitable for one party to continue occupying a property, while the other preserves an interest in that property that can be realised at a later time and is protected by a charge. This type of order defers the sale of the property, with the proceeds from that sale to be divided between the parties at a future date. The arrangements frequently made of this kind are typically described as Mesher or Martin orders......
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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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