Legal Practice Notes

Nature of trusts The trust concept Ordinarily, the settlor starts as the owner of the assets and establishes a trust by transferring them to one or more trustees, making clear an intention that they are to be held on trust for one or more beneficiaries or to achieve a specified purpose. At common law trustees take legal ownership and hold the property or rights in trust for the beneficiaries (cestuis que trust) or for that purpose. The trustees are under an equitable obligation enforceable by the beneficiaries. However, regardless of the settlor’s intention, no trust arises unless legal title passes to the trustee; this act is the constitution of the trust. Definition While the trust idea is recognisable, arriving at a concise definition is not so easy......

Specific issue orders This Practice Note sets out what specific issue orders are, when the court may make them, and the restrictions on doing so. It also outlines the breadth and scope of such orders, for example disputes about: medical treatment taking a child out of the jurisdiction altering a child’s name It identifies who may apply for a specific issue order as of right and who must first obtain the court’s permission. A specific issue order is an order directing how a particular question should be determined where it has arisen, or might arise, in relation to any element of parental responsibility for a child. A discrete question can be placed before the court so that a defined point can be settled. There is no requirement for a live dispute between the parties before the jurisdiction to make a specific issue order is engaged; the court’s power is not...

Practice Note This Practice Note sets out guidance on serving documents in family cases beyond the jurisdiction of England and Wales where the proceedings were issued before 6 April 2022. It specifies how service should be carried out in the following settings: Scotland or Northern Ireland Countries that are parties to the Hague Service Convention All other overseas jurisdictions It further clarifies the timeframe for filing an acknowledgement of service and when a translation is necessary. The Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) has been operative since 6 April 2022. Proceedings started on or after that date are governed by DDSA 2020 and by the procedural changes brought in through the amended Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955. For additional guidance, see Practice Note: Introduction to the Divorce, Dissolution and Separation Act 2020. Those...

Practice Note This Practice Note outlines who may apply as of right for an order under s 8 of the Children Act 1989 ( Ch A 1989)—namely a child arrangements order, a specific issue order or a prohibited steps order—and who must first secure the court’s permission (leave). It identifies the criteria the court must take into account when determining whether to grant permission. It also describes the process for seeking permission, including the required application form, the supporting documents and the steps for service. Under the Ch A 1989, some applicants can seek a s 8 order because they are ordinarily closely connected with the child, whereas others must obtain the court’s leave before issuing an application. Distinctions also arise depending on the particular type of s 8 order sought, and the Note explains how these differences affect entitlement to apply and the need for...

Where a party seeks to enforce an order, and the respondent plans to depart the court’s jurisdiction and thereby impede enforcement, a writ ne exeat regno, or a passport seizure order, may be pursued. In children proceedings, such an order may be made where there are concerns about abduction or to secure a child’s return; see also Practice Note: Child abduction—emergency remedies— Passport order. Mostyn J in Bhura v Bhura described the writ ne exeat regno as a ‘charming historical relic’ and ‘an anachronism given the availability of the modern form of order [the passport seizure order]’. In Re P ( Discharge of Passport Order), Cobb J characterised a passport seizure order as ‘a potent order, with significant implications, whose use it seems to me should be tightly controlled’ and therefore such orders should only be made for a finite period of...

Selling, buying and leasing property for P A deputy may undertake a broad range of property transactions on P’s behalf, according to P’s situation. This might involve selling a home that no longer meets P’s needs, purchasing a replacement property, or arranging rented accommodation for P, which is often used as an interim step while a longer-term housing solution is identified for P and their family. Standard 6 of the 2023 Deputy Standards Policy, issued by the Office of the Public Guardian ( OPG), concerns property management and makes clear that a deputy must deal with P’s property in accordance with the deputyship order and always in P’s best interests. Further detailed direction on managing property appears in the 2023 Deputy Standards: Guidance for Professional Deputies, also produced by the OPG. Standard 6 sets out best practice in relation to P’s property...

This Practice Note This Practice Note explains when a qualified legal representative ( QLR) can be appointed in family proceedings, how registration and eligibility for appointment operate, and the court process for appointing a QLR. It also outlines a QLR’s duties and responsibilities, when attendance at court is required, how cross‑examination should be conducted, what may happen if no QLR can be found, and how payment is arranged. It also covers practical points on listing, attendance, and the manner of questioning by a QLR. From 21 July 2022, section 65 of the Domestic Abuse Act 2021 ( DAA 2021) inserted Part IVB into the Matrimonial and Family Proceedings Act 1984 ( MFPA 1984), introducing a prohibition on cross‑examination in person in defined family proceedings. These measures sit under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, Part 3A, together with FPR 2010,...

This Practice Note It sets out the court’s authority to impose periodical payments orders for the benefit of a child with special needs (including cases where a personal independence payment/disability living allowance is received by or on behalf of a child, or where a child is disabled) to meet costs attributable to the child’s disability. That authority can be exercised irrespective of the court’s limited remit to make maintenance orders for children in general. This Practice Note examines the court’s construction of the expression, ‘expenses attributable to the child’s disability’, together with the procedure for bringing an application. The court has jurisdiction to make maintenance orders in relation to a child with special needs, notwithstanding the general restrictions on making periodical payments for the benefit of a child who falls within the jurisdiction of the Child Maintenance Service ( CMS), whether or not an...

This Practice Note sets out the routes by which a step-parent can obtain parental responsibility for a child under section 4A(1) of the Children Act 1989 ( Ch A 1989). It summarises parental responsibility agreements and orders, including how long they last in practice for those involved. It also outlines ways non-parents and non-step-parents can secure parental responsibility, for example through appointment as a child’s guardian or special guardian, by obtaining a child arrangements order ( CAO), or by securing an emergency protection order. Step-parents A step-parent who is married to, or the civil partner of, a parent who already holds parental responsibility may either apply to the court for a parental responsibility order, as appropriate, or enter into a parental responsibility agreement, if preferred. Explanatory notes to the Adoption and Children Act 2002 ( ACA 2002), which introduced Ch A 1989, s 4A(1),...

Notice to show cause application If one party believes an agreement has been concluded (usually about the parties’ financial arrangements), or accepts an agreement existed but the other now seeks to resile from it, the party relying on that agreement may apply for the other to show cause why an order should not be made reflecting its terms. a pre-nuptial agreement—see Practice Note: Implications of pre-nuptial agreements within proceedings for financial provision a post-nuptial, separation or maintenance agreement—see Practice Note: Implications of maintenance, separation and post-nuptial agreements within proceedings for financial provision an agreement reached following arbitration—see Practice Notes: Family arbitration—introduction and Family arbitration—the role of the courts a negotiated agreement, whether within or outside financial remedy proceedings—see Practice Note: Action on reaching agreement prior to final...

How to use this index This Practice Note offers an index with links to the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955—the main procedural rules that apply to family proceedings—together with all supporting Practice Directions. Use the ' Table of Contents' tab on the left-hand side of the screen; it will expand to reveal every Part of FPR 2010 and the associated Practice Directions for each individual Part. To open material within FPR 2010, select the margin note to the right of the text for the specific Part or Practice Direction you wish to consult. When you are inside a Part of FPR 2010, click the ' Table of Contents' tab on the left to then expand that Part, display all rules contained in it, and allow you to navigate to the relevant provision you are interested in or...

In certain welfare matters before the Court of Protection, a fact-finding hearing is needed to settle disputed points of fact arising in the case and to enable the proceedings to move forward fairly. When is a fact-finding hearing required? Most welfare applications in the Court of Protection ordinarily generally indeed conclude without any separate, formal fact-finding exercise. Typically, although parties may differ over the future plan said to ultimately serve the vulnerable person ( P)’s best interests, they nonetheless usually accept the key, material background facts the court must take into account. Only in a small fraction of cases exceptionally does the court actually exercise case management powers to order a fact-finding hearing to decide contested facts. The court, in practice, most often commonly directs such hearings (either standalone or folded into the final hearing) in so-called ‘safeguarding cases’ brought by local...

Practice Note This Practice Note outlines how to enforce a debt in family proceedings against a debtor’s goods and chattels where a judgment or an order for payment of money has been obtained by a writ or warrant of control (formerly the writ of fieri facias or a warrant of execution). It details the procedure for execution against goods and provides guidance on permission requirements, exempt goods, and fees. Section 62 of the Tribunals, Courts and Enforcement Act 2007 ( TCEA 2007) sets out the process—specified in TCEA 2007, Schedule 12—used when a court issues a writ or warrant enabling an enforcement agent to take control of goods to recover sums due under a judgment or order. These provisions commenced on 6 April 2014. The writ of fieri facias ( High Court) was retitled the writ of control, and the warrant of...

This Practice Note This Practice Note sets out guidance on enforcing an undertaking to pay money, as well as undertakings to perform, or refrain from, actions other than payment. It also examines the requirements for contempt proceedings where an undertaking has been breached. The principal provisions governing the enforcement of undertakings appear in the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, Pts 33 and 37, together with FPR 2010, PD 33A and FPR 2010, PD 37A. With effect from 1 October 2020, FPR 2010, SI 2010/2955, Pt 37, along with FPR 2010, PD 37A, were substituted. From the same date, amendments were made to FPR 2010, PD 33A to reflect the changes to FPR 2010, SI 2010/2955, Pt 37 and to FPR 2010, PD 37A. The substituted Part 37 does not change the scope or extent of the...

This Practice Note This Practice Note reviews the Courts and Tribunals Judiciary’s General guidance on electronic court bundles dated 29 November 2021 (the general guidance), together with the President of the Family Division’s Message: Guidance on e-bundles issued on 21 December 2021 (the supplementary guidance), and relevant provisions of the Family Procedure Rules 2010 ( FPR 2010), in particular PD 27A as it stood prior to 2 March 2026, concerning electronic bundles (e-bundles). It also addresses what is required for bundles on appeal. From 2 March 2026, FPR 2010, PD 27A was replaced wholesale by a revised version; see FPR 2010, PD 27A. The supplementary guidance of 21 December 2021 was superseded by the President’s Preparing Court Bundles for Family Proceedings: Guide for Litigants in Person dated 2 March 2026, and the general guidance of 29 November 2021 no longer applies to family...

This Practice Note offers practical guidance on the frequently debated question of which local authority should be designated for section 31 of the Children Act 1989 ( Ch A 1989). Specifically, it examines and clarifies: the distinct statutory criteria governing designation for both care orders and supervision orders in such cases for care orders, whether and to what extent A v A ( Children: Habitual Residence) ( Reunite International Child Abduction Centre) influences the understanding of ‘ordinary residence’ in particular the operation of the ‘stop clock’ in Ch A 1989, s 105(6), and the effect of amendments to Ch A 1989, s 22 introduced by the Children and Young Persons Act 2008 on the definition of a looked after child in this context General principles The Family Court may not issue a care order or a supervision order in the abstract. Any such order must identify the local...

Practice Note This Practice Note outlines the core principles for applying for a declaration of parentage under the Family Law Act 1986. It addresses the court’s jurisdiction and the need for an applicant to show a sufficient personal interest. It also examines who the parties are, declarations relating to adopted children, and declarations of parentage for the purposes of the Child Support Act 1991 and the Child Support Act 1995. Declarations of legitimacy are likewise considered... In Re G (children) (residence: same-sex partner), Baroness Hale identified three routes by which a person may become a parent, namely: genetic parenthood — the supplying of gametes that create the child gestational parenthood — the conceiving and carrying of the child social and psychological parenthood — the relationship formed as the child seeks care and the parent meets the child’s needs The court cannot issue a...

Orders issued by the Court of Protection do not invariably need enforcing—for instance, a declaration about P’s capacity, or lack of capacity, or a ruling that a specific course of conduct is lawful or unlawful. Nevertheless, there are many situations in which enforcement of the court’s orders becomes necessary, such as where P’s property and financial affairs have suffered financial abuse, or where personal contact with P has to be regulated, as appropriate in the circumstances. The Court of Protection ( Co P) holds wide-ranging powers to enforce its orders, by the court when required, under the Mental Capacity Act 2005 ( MCA 2005) and the Court of Protection Rules 2017 ( COPR 2017), SI 2017/1035. Under s 47(1) MCA 2005, the Co P is given enforcement powers equivalent to those of the High Court. In the same way as the Civil...

Constituting the trust As a rule, no trust comes into being, whatever the settlor intends, unless legal title is actually placed in the trustees. This step is called constituting the trust. The trustees must control the property. Where the transfer attracts formalities—for instance with land or shares—those requirements must be met. A trust becomes fully constituted by the settlor either: making an effective transfer of specified property to the trustees and stating the trusts on which they are to hold it; or declaring that property already vested in them is, from now on, to be held by them on trust. The effect of constitution of the trust Once constituted, a trust is: irrevocable by the settlor despite its voluntary nature, like a completed gift that binds the donor and cannot be undone (save where the terms of the trust expressly confer a power of...

This Practice Note explains when the court may issue a lump sum, property adjustment or pension sharing order by treating maintenance as a capital sum on an application to vary a periodical payments order in favour of a spouse or civil partner. Such relief cannot be granted in nullity or judicial separation proceedings. It outlines the types of orders available to the court and the court’s overall approach. The Note addresses variation applications in which maintenance is converted into capital. General principles Under sections 31(7A)–(7F) of the Matrimonial Causes Act 1973 ( MCA 1973) and the equivalent provisions of the Civil Partnership Act 2004 ( CPA 2004), the court is empowered, in specified circumstances, to make, as appropriate, a lump sum order, property adjustment order(s) or pension sharing order(s) (unless the relevant pension was shared at the time of the original...