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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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What is a statutory Will? Where an individual is unable to make a valid Will for themselves, the Court of Protection, acting under the Mental Capacity Act 2005 ( MCA 2005), can authorise a Will to be executed on their behalf. These Wills are commonly described as statutory Wills, even though that expression does not appear in the MCA 2005. A statutory Will may include any provisions that could have been contained in a Will executed by P if they had the capacity to do so personally. The Court of Protection may only direct the execution of a statutory Will for a person who is aged 18 or over and who lacks testamentary capacity. For guidance on testamentary capacity, see Practice Note: Capacity to make or revoke a Will. The court alone has the authority to execute a Will on behalf of P....
This Practice Note outlines the provisions of the Domestic Violence Disclosure Scheme (commonly known as Clare’s Law). It explains the guidance governing the scheme. It also summarises the powers available to the police and the court under the Crime and Security Act 2010 regarding domestic violence protection notices and domestic violence protection orders, and the way these are influenced by the domestic abuse protection notices and domestic abuse protection orders created by the Domestic Abuse Act 2021 ( DAA 2021). Domestic Violence Disclosure Scheme The Domestic Violence Disclosure Scheme ( DVDS), often referred to as Clare’s Law, was implemented across all 43 police forces in England and Wales on 8 March 2014. The DVDS established processes enabling the police to share information about an individual’s previous violent or abusive offending, including emotional abuse, controlling or coercive behaviour, or economic abuse, where doing so may help...
Updated house This Practice Note sets out details on, and access to, civil restraint orders issued by the standard orders group under the authority of the President of the Family Division, encompassing limited, general and extended civil restraint orders. On 17 May 2023, Mr Justice Peel, the judge responsible for standard orders, stated that, with the President of the Family Division’s authority and after the review process and consultation period, the standard orders have been revised to mirror developments in law, practice and procedure and to secure consistency more widely. See: LNB News 17/05/2023 88......
Practice Note The Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) took effect on 6 April 2022. Any application issued by the court on or after that date is governed by DDSA 2020 and the revised procedures in the amended Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955. For background, see Practice Note: Introduction to the Divorce, Dissolution and Separation Act 2020. Applications issued on or before 5 April 2022 continue under the pre‑ DDSA 2020 regime and are unaffected by its commencement or the resulting procedural changes. This Practice Note addresses proceedings issued before 6 April 2022. Consequential legislative updates followed DDSA 2020, including amendments to FPR 2010, Pt 7. To access historic versions of FPR 2010, Pt 7, and FPR 2010, Practice Direction 7A as they applied to proceedings issued before 6 April 2022, see below. This Practice Note...
Nullity proceedings in relation to civil partnerships This Practice Note outlines nullity proceedings for civil partnerships, distinguishing between void and voidable partnerships. It also sets out when the court is unable to grant a nullity order. The Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) took effect on 6 April 2022. While DDSA 2020 reformed the law on divorce, dissolution and (judicial) separation, it left the substance of nullity law untouched. Accordingly, the grounds rendering a marriage or civil partnership void or voidable are unchanged. However, amendments to the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, have led to consequential procedural adjustments for nullity applications issued on or after 6 April 2022; matters issued by the court on or before 5 April 2022 continue under the pre- DDSA 2020 regime and are unaffected by those procedural changes. See Practice Note:...
Residual jurisdiction This Practice Note explains the foundations of the courts’ jurisdiction governing proceedings for dissolution and separation orders concerning civil partners, covering both the period prior to 1 January 2021 and from that date onwards, having regard to the effects of the UK’s withdrawal from the EU. It also addresses the position on residual jurisdiction; see: Residual jurisdiction. At precisely 11 pm ( GMT) on 31 December 2020, the Brexit transition/implementation period, entered into following the UK’s departure from the EU, came to an end. From that point (described in UK law as ‘ IP completion day’), key transitional arrangements ceased and substantial changes took effect across the UK legal regime. These developments have implications for practitioners when determining which courts possess jurisdiction in relation to dissolution and separation orders. For further guidance, see Practice Note: Family proceedings with EU...
Practice Note This Practice Note outlines the steps for applying under section 91(14) of the Children Act 1989 ( Ch A 1989) for an order that bars any application of a defined type concerning the child from being issued by any person identified in the order unless the court first grants leave (permission) (a s 91(14) order). It also describes, in outline, the procedure to be followed by a person named in a s 91(14) order who seeks the court’s leave to pursue a specified application, and it explains the test the court should apply to any request for leave. On determining any application for an order under Ch A 1989, the court may direct that no application under that Act of any specified kind shall be made in relation to the child by any person named in the order without the court’s leave. This power is...
Practice Note This Practice Note addresses the circumstances in which a claim for child support is made and paternity or parentage is contested. It sets out when the Child Maintenance Service ( CMS) may proceed on an assumption of parentage, the steps to follow where paternity or parentage is denied, and the resulting effect on liability. Section 26 of the Child Support Act 1991 ( CSA 1991) states that, where a person alleged to be a parent of a child for whom a maintenance calculation has been made denies being one of that child’s parents, the CMS must not make a maintenance calculation on the basis that the alleged parent is a parent, unless the matter falls within one of the categories listed in CSA 1991, s 26(2), see: Assumption of parentage. The CSA 1991 also contains provisions dealing with a denial of...
Stop Press: On 31 March 2026, Sir Andrew Mc Farlane, President of the Family Division, published consolidated guidance on allocation and gatekeeping in children proceedings before the Family Court, to take effect on 5 May 2026. This supplants the 2014 public and private law guidance, creating a single scheme for allocation across all children cases. It codifies the function of gatekeeping teams, maps allocation choices to contemporary procedural routes (including Child Focused Courts), and reaffirms the fundamentals of judicial continuity, proportionality, and the efficient deployment of judicial resources; see News Analysis: Consolidated allocation and gatekeeping guidance for children proceedings issued. This Practice Note is being revised to incorporate the President’s guidance. It sets out how to seek an order under section 8 of the Children Act 1989 ( Ch A 1989)—namely a child arrangements order ( CAO), a specific issue order, or a...
Child arrangements orders—regulating living arrangements From 22 April 2014, when section 12 of the Children and Families Act 2014 ( CFA 2014) took effect, the labels ‘residence order’ and ‘contact order’ fell out of use in private law children proceedings. In their place, a single mechanism—the child arrangements order ( CAO)—was introduced. A CAO determines: the person or people with whom a child is to live, spend time or otherwise have contact the occasions on which a child is to live, spend time or otherwise have contact with any person Questions arising from the exercise of parental responsibility that are not about where a child lives or with whom they spend time can be resolved through specific issue orders or prohibited steps orders. See Practice Notes: Specific issue orders and Prohibited steps orders. Where a CAO specifies with whom a child should spend time or have...
This Practice Note sets out immediate measures available in child abduction matters, including location orders, passport orders, port alerts, collection orders, and directions for enforcement by the court Tipstaff. Measures covered include location orders, passport orders, port alerts, collection orders, and orders requiring action by the court Tipstaff. It also summarises the procedural obligations under the Family Procedure Rules 2010, PD 12E ( FPR 2010), and the President of the Family Division’s guidance issued in March 2018 and revised in March 2023. Together, these materials explain the emergency steps and procedural requirements to be followed. For further practical guidance on practice and procedure in child abduction cases, see: Practice Notes Child abduction—overview and commencing proceedings (1980 Hague Convention) Child abduction—procedure and evidence ( Hague Convention) Child abduction—orders to find and recover a child within the UK In some cases,...
This Practice Note examines how family law services are priced and funded, addressing contractual terms, regulatory obligations under the Solicitors Regulation Authority ( SRA) regime, and guidance from the Law Society and the Legal Ombudsman. It also considers charging models, including fixed fees, hourly rates, blended rates, and approaches such as ‘unbundling’... Contractual relationship The service contract between solicitor and client is central to the professional relationship. Managed effectively, it can enhance standing; mishandled, it may strain the relationship and expose the firm to financial loss and reputational harm. This Practice Note outlines the core principles and practical management of fees and funding in family cases... Cash flow underpins every practice. For family lawyers, the key questions are what to charge and the mechanism for doing so. A practice must remain profitable, as sustained unprofitability can jeopardise the firm. When reviewing charging,...
The issue of sham Claims of sham most commonly arise from the settlor’s creditors or an ex‑spouse in matrimonial litigation, asserting that property placed with the trustees in truth remains the settlor’s, and is therefore reachable to satisfy a court order. Where a trust is declared a sham, it will typically be void and the trust fund will revert to the settlor. A sham is a pretence: the settlor and, potentially, the trustees do not possess the requisite intention to establish a genuine trust. Instead, they aim to project to outsiders and to the court that a valid trust exists by ostensibly conveying legal title to the trustees and the equitable interest to beneficiaries, whilst in fact the settlor keeps ownership, aided—knowingly or not—by the trustees acting as principal and agent or nominee under a bare trust for the settlor. The decisive element is the...
This Practice Note explains what a care plan is, when it must be created and when it should be created. It outlines what constitutes a care plan, the points at which it is required and when it ought to be prepared. It offers practical guidance on who should compile the plan, who needs to be consulted, and the matters it should cover. The information in this Practice Note concerns the law currently in force in England. The position in Wales is addressed by the Social Services and Well-being ( Wales) Act 2014 and related statutory instruments, such as the Care Planning, Placement and Case Review ( Wales) Regulations 2015, SI 2015/1818. Note that regulations 4 and 5 of the Care Planning, Placement and Case Review ( Wales) Regulations 2015, SI 2015/1818, mirror the wording of the Care Planning, Placement and Case Review (...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note explains the consequences for family law arising from the UK’s departure from the EU (commonly referred to as Brexit) and signposts resources covering both Brexit generally and family law in particular. Outlines statutory instruments affecting family proceedings Provides guidance on retained EU law, termed ‘assimilated law’ from 1 January 2024 From 31 January 2020, the UK ceased to be an EU Member State and no longer took part in the EU’s political institutions or governance structures. Nevertheless, in line with the transitional provisions in Part 4 of the Withdrawal Agreement, exit day initiated an 11‑month implementation period during which, for many purposes, the EU continued to treat the UK as a Member State. See also Practice Notes: Brexit—introduction to the Withdrawal Agreement and What does IP completion day mean for family law? [...
ARCHIVED: This Practice Note is archived and no longer updated. It outlines modifications to the Civil Procedure Rules arising from the Civil Procedure Rules 1998 ( Amendment) ( EU Exit) Regulations 2019 ( SI 2019/521), and the Civil, Criminal and Family Justice ( Amendment) ( EU Exit) Regulations 2020 ( SI 2020/1493), together with related revisions to relevant practice directions recorded in the Making documents for the 107th, 122nd and 126th practice direction updates. The 126th practice direction update also introduced several minor amendments to the 107th practice direction. These adjustments either ensured, or flowed from, changes to existing EU Exit instruments so as to secure alignment with the Withdrawal Agreement between the EU and the UK. CPR Parts subject to change include: Part 5 Part 6 Part 8 Part 12 Part 13 Part 25 Part 30 Part 31 ...
ARCHIVED: This Practice Note is archived and no longer maintained. It outlines the legal consequences for Scotland arising from the UK’s departure from the EU. Notably, these implications stem from the United Kingdom’s devolution arrangements, which allocate legislative and executive authority to the Scottish Parliament and the Scottish Government under the Scotland Act 1998 ( SA 1998), subsequently and progressively expanded—principally to increase legislative and taxation powers—by the Scotland Act 2012 ( SA 2012) and the Scotland Act 2016 ( SA 2016) (collectively, the Scotland Acts). For additional guidance on Brexit, see: Scotland collection. Scotland's constitutional arrangements The starting point remains that Scotland’s status within what is now the United Kingdom of Great Britain and Northern Ireland finds its constitutional basis in the Act of Union between Scotland and England. Although devolution has re-ordered aspects of internal governance, the UK’s character as a single and...
The Family Procedure Rules 2010 and Court of Protection Rules 2017 ( Amendment) ( EU Exit) Regulations 2019, SI 2019/517 SI 2019/517 brought in revisions that stripped out provisions in the Family Procedure Rules 2010 ( FPR 2010) (and the Court of Protection Rules 2017) concerning powers, procedures and orders derived from EU instruments, or international agreements that had ceased to apply or be available where those measures or agreements were revoked by the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018), or by statutory instruments made under EU( W) A 2018. Knock‑on amendments were also made to the Practice Directions underpinning FPR 2010; see LNB News 07/01/2021 76 and How FPR 2010 is amended. This Practice Note sets out the objective of SI 2019/517 and the relevant EU law, alongside the transitional and saving regimes, including in relation to...
ARCHIVED: This Practice Note is archived and is no longer maintained. It charted the progress of UK primary legislation introduced as part of the legislative preparations for the UK’s exit from the EU during the 2017–19 Parliament. Following the prorogation of the 2017–19 Parliament on 8 October 2019, the Brexit Bills moving through Parliament that had not yet secured Royal Assent fell, namely: Agriculture Bill Financial Services ( Implementation of Legislation) Bill [ HL] Fisheries Bill Immigration and Social Security Co-ordination ( EU Withdrawal) Bill Trade Bill For further reading, see: Brexit Bulletin—key Bills fall away on prorogation of Parliament, LNB News 09/10/2019 64......
ARCHIVED: This tracker is archived and no longer updated. For an overview of Court of Protection cases from 2025 onwards, see: Court of Protection—table of cases. P, Re ( Property & Affairs Deputyship: Jurisdiction) [2024] EWCOP 77 ( T2) Court of Protection determines it has jurisdiction to consider whether P’s mother should continue as property and affairs deputy The proceedings related to P, an adult who sustained a brain injury in an accident and had a substantial personal injury claim. His mother had been appointed by the Court of Protection as his property and affairs deputy, and the present decision addressed an application seeking to revoke that appointment. The litigation had been protracted. Earlier, the court permitted ‘closed material’ to be withheld from P’s parents to facilitate capacity assessments; for a summary of that ruling, see here. Despite that step, neither the Official...
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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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