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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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A Calderbank offer A Calderbank offer is a settlement proposal labelled 'without prejudice save as to costs'. Whether such an offer can be relied upon, and the significance the court will attach to it, depends on the character of the proceedings. It takes its name from the decision in Calderbank v Calderbank. Where relevant, a Calderbank offer is only shown to the court once judgment has been delivered, at the point when costs are addressed. Accordingly, if there is a prospect that the court may make a costs order (which will be governed by the type of proceedings in play), the parties should consider advancing a reasonable Calderbank offer to compromise the dispute which, if declined by the other side, will be taken into account by the court and may give the offeror a measure of protection on costs. Before 2006,...
This Practice Note This Practice Note sets out the situations in which the court may decline to issue a decree in nullity proceedings. It outlines the universal bar applicable to every matter, alongside the three bars confined to particular cases. It also addresses the issue of estoppel within nullity claims. From 6 April 2022, the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) took effect. While DDSA 2020 reformed aspects of the law governing proceedings for divorce, dissolution and judicial separation, it introduced no substantive alteration to the rules on nullity. Accordingly, the bases on which a marriage or civil partnership is void or voidable remain the same as before and unaffected by those reforms......
STOP PRESS : Please note that the President of the Family Division, Sir Andrew Mc Farlane, has released new guidance taking effect from 12 January 2026: President of the Family Division’s Guidance 2026 Non- Molestation Orders under the Family Law Act 1996 ( FLA 1996). This supersedes the Practice Guidance on non-molestation injunctions under FLA 1996 issued on 14 July 2023 and incorporates two annexes, together with: An updated template for a non-molestation order under FLA 1996, s 42 Form FL435 ( Response to a non-molestation order) In addition, the Family Justice Council has published its 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 has been revised to reflect these...
Electronic signatures This Practice Note sets out the legal position on electronic signatures—also called digital signatures, e‑signatures, E‑ Signatures, e Signatures, paperless signing or electronic document signing. It explains the categories of electronic signature and the technology used to generate digital signatures, including public key infrastructure ( PKI). It reviews key UK legislation such as the Electronic Communications Act 2000 ( ECA 2000) and the UK e IDAS Regulation, and outlines best practice for executing documents by electronic means. An electronic signature functions as the digital counterpart to a handwritten signature, connecting an individual with the contents of an electronic document. The Note focuses on the general law in England and Wales for commercial contracts in a business‑to‑business context. Readers should be aware that particular transactions may present distinct issues, for example due to laws applicable to consumers. For practical guidance on signing when one or more...
Practice Note This Practice Note outlines the court’s authority to issue a periodical payments order (maintenance provision) for a child under Schedule 1 to the Children Act 1989 ( Ch A 1989), setting out what orders can be made and eligible applicants. It also covers interim relief, jurisdiction, and the factors the court will consider in determining applications, and it explains who may apply for such relief. In matrimonial or civil partnership proceedings, the court may make child maintenance orders. It likewise has jurisdiction to order periodical payments under Ch A 1989, Sch 1. Most applications brought under this route concern parents who have neither married nor entered a civil partnership, especially where the payer holds substantial financial means. The Child Maintenance Service ( CMS) exercises near-exclusive competence over child maintenance matters. Nonetheless, in a number of specified...
This Practice Note applies to the majority of applications to the Court of Protection. However, a separate process applies when seeking to appoint a property and financial affairs deputy in such cases within the Court of Protection context. From January 2023, the upfront notification route became the default for all property and affairs deputyship applications, after a successful pilot. As outlined in Practice Direction 9H, applicants must tell the person who is the subject of the application and also three individuals who know that person, using the combined notification and acknowledgement forms, COP14PADep and COP15PADep, and obtain their replies before lodging the application. All replies, together with any records of notifications, should then be promptly filed with the court at the same time as the completed application. If applying via the online portal, no COP1 application form is then needed. If applying on paper, include all...
This Practice Note sets out the presumption of continued parental involvement under section 1(2A) of the Children Act 1989 ( Ch A 1989). It applies when the court considers contested applications for orders under Ch A 1989, s 8, and when it addresses the grant or the removal of parental responsibility. Presumption of continued parental involvement Pursuant to Ch A 1989, s 1(2A), inserted by section 11 of the Children and Families Act 2014 ( CFA 2014), where the court is considering any of the following applications, it must, in relation to each parent, presume (unless the opposite is demonstrated) that the involvement of that parent in the child’s life will promote that child’s welfare: a contested application to make, vary or discharge an order under Ch A 1989, s 8 (a section 8 order) an unmarried father’s application for parental...
This Practice Note outlines the provisions in the Family Procedure Rules 2010, PD 12B on the measures available to enforce a child arrangements order ( CAO). It explains the requirement for a warning notice to be included with CAOs. It also covers enforcement orders that may impose an unpaid work requirement, alongside financial compensation orders... General enforcement provisions A CAO is an order that governs arrangements concerning any of the following: with whom a child is to live, spend time or otherwise have contact, and when a child is to live, spend time or otherwise have contact with any person See Practice Notes: Child arrangements orders—residence and Child arrangements orders—contact. Enforcement of contact orders in particular is frequently challenging and can be lengthy, especially where there is implacable hostility. Applications for committal for breach are generally treated as a last resort, given the...
Writ or warrant of possession of land A writ of possession in the High Court, or a warrant of possession in the Family Court, is used to enforce an order granting a party possession of land or buildings, for example under a property adjustment order or an occupation order. When an order for sale is made under section 24A of the Matrimonial Causes Act 1973, the court may, under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, 9.24, require any party to deliver to the purchaser, or another person, possession of the land and/or the entitlement to receive its rents and profits. If an order for possession is not made at the same time as the sale order, a possession order must first be obtained before a writ or warrant of possession can be issued. A standard possession order form is...
Occupation order An occupation order, made under the Family Law Act 1996 ( FLA 1996), sets out, defines, limits or manages rights of occupation in the family home between the parties who are, or who have been, in certain categories of relationship. In essence, an occupation order will simply either be a declaratory order or a regulatory order in nature. Declaratory orders include: confirming the existing occupation rights in the home extending the statutory occupation rights beyond the ending of the marriage on divorce or death granting the occupation rights in the home to non-entitled applicants (an occupation rights order) Regulatory orders available include: requiring one party to vacate the family home suspending the occupation rights and/or forbidding one party from entering or re-entering the home, or part of the home obliging one party to permit the other to enter and/or remain within the...
Recognition, enforcement and co-operation under the 1996 Hague Convention This Practice Note addresses recognition, enforcement and co-operation pursuant to the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Hague Convention), which took effect in the UK on 1 November 2012. The Hague Conference on Private International Law ( HCCH) has issued a Practical Handbook on running the 1996 Child Protection Convention and an Explanatory Report on the 1996 Hague Convention (the Lagarde Report). On 31 January 2020 (exit day), the UK left the EU and ceased participating in its political institutions and governance frameworks. Nonetheless, under the transitional provisions in Part 4 of the Withdrawal Agreement, exit day triggered an 11-month implementation period (from 11 pm on exit day to 11 pm on 31 December 2020...
This Practice Note This Practice Note outlines the governing law for child abduction matters where a state is a party to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the 1980 Hague Convention). It also addresses access to public funding, explains the function of the central authority, and identifies the steps required to lodge an application for a return order. In addition, it reviews the child abduction mediation scheme and how Council Regulation ( EC) No 2201/2003 of 27 November 2003 (often referred to as Brussels II bis or Brussels IIA) applied to child abduction proceedings before 1 January 2021 and in transitional cases—see: Implications of Brexit. Guidance from the Hague Conference on Private International Law ( HCCH) has been produced on cross-border recognition and enforcement of agreements—see: General approach. The domestic statute giving effect to the 1980 Hague...
This Practice Note outlines wasted costs orders in family proceedings, setting out the test applied by the courts and the procedural steps required. It also addresses improper, unreasonable or negligent conduct and how such misconduct may influence costs, together with pertinent case law. What is a wasted costs order? The rules governing wasted costs sit in the Civil Procedure Rules 1998 ( CPR), SI 1998/3132, Pt 46 and the associated CPR PD 46. CPR Part 46 and CPR PD 46 apply to costs in family proceedings under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, 28.2. A wasted costs order is an order: requiring a legal representative to pay a sum (either fixed or to be assessed) in respect of a party’s costs; or disallowing costs for a specified amount or for particular items of work Such orders can be made at any stage of the...
Practice Note Under section 305(2) of the Insolvency Act 1986 ( IA 1986), a core duty of the trustee in bankruptcy (trustee) is to collect, realise and distribute the bankruptcy estate. Accordingly, the trustee should act promptly to identify which assets vest, locate them, secure them, and determine the means of realisation. This Practice Note examines the categories of property interests that may pass to the trustee and the rules for assessing the scope of that interest. The focus is on how those principles operate in relation to the bankrupt’s main home. That property is usually the estate’s highest‑value asset and often gives rise to complexities, particularly if the bankrupt lives or has lived there with others. In a matrimonial or family home setting, competing claims may arise from a spouse or civil partner and, in some cases, children or other...
This Practice Note This Practice Note outlines the principal substantive and procedural rules regarding evidence-taking in the EU for family proceedings where the pertinent request was received before the implementation period ( IP) completion day (11pm on 31 December 2020). It also explains the law and process for obtaining evidence under the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the Hague Evidence Convention), which applies between contracting states, covering most, though not all, EU Member States. In addition, it signposts resources for scenarios where the Hague Evidence Convention is not engaged. During proceedings, evidence may need to be gathered from parties or witnesses located overseas. Council Regulation ( EC) No 1206/2001 of 28 May 2001 on cooperation between courts of the Member States in the taking of evidence in civil or commercial matters (the Taking of...
Practice Note This Practice Note outlines the extent of the court’s jurisdiction to set aside a financial remedy order and distils the bases on which such an application can be pursued. It additionally addresses, in depth, the rescission of a financial remedy order made without a party present or without notice, together with applications to set aside due to lack of capacity. It analyses the powers concerning executory orders (ie orders yet to be implemented) and undertakings, and includes key procedural information. For detailed practical guidance on subsequent unforeseen and unforeseeable developments ( Barder events), see Practice Note: — Barder events. For detailed practical guidance regarding fraud, material non-disclosure or mistake, see Practice Note: —fraud, material non-disclosure and mistake. The Family Procedure Rules 2010 ( FPR 2010) furnish a procedural pathway for applications to set aside a financial remedy order where no error by the court is...
This Practice Note This Practice Note explains what is needed for England and Wales to recognise a foreign marriage or civil partnership, addressing questions of validity and polygamous unions. Unlike the rules for acknowledging an overseas divorce or dissolution of a civil partnership, whether an overseas marriage or civil partnership is recognised has always been, and remains, a matter for the domestic law of England and Wales—both before and after 31 December 2020 (the end of the implementation period ( IP))—and is thus largely untouched by the UK’s exit from the EU ( Brexit). For practical assistance on recognising an overseas divorce or dissolution, see the Practice Notes: Recognition of overseas divorce or dissolution of civil partnership and Recognition of divorce and legal separation under the 1970 Hague Convention. For material on Brexit-related implications, consult the Practice Note: Family proceedings with EU...
This Practice Note This Practice Note explains how the welfare principle in the Children Act 1989 ( Ch A 1989) applies within public children proceedings. It sets out the court’s discretion and the influence of the welfare principle alongside the welfare checklist. It also gives practical guidance on the paramountcy principle, the need to avoid delay, concurrent and twin-track planning, and early permanence (previously termed ‘fostering to adopt’). Ch A 1989 establishes a two-stage process, which may occur in the same hearing or over multiple hearings, before the court may exercise its discretion to make a care or supervision order: first, the court must consider the threshold criteria in Ch A 1989, s 31(2) second, the court considers the welfare principle This Practice Note focuses on the second, welfare, stage. The local authority must establish the threshold criteria before the court can reach the...
Historically, some applications to the Court of Protection (the court) required applicants to secure permission before initiating proceedings. That step functioned as a filter to deter weak claims and spare others unnecessary cost and inconvenience. Under the Court of Protection Rules 2017 ( COPR 2017), a wider range of matters can now be brought without first seeking permission. Where permission remains necessary, the request must be included within the main application. No permission is needed for applications concerning: property and financial affairs a lasting power of attorney created under the Mental Capacity Act 2005 ( MCA 2005) an enduring power of attorney Applications about the personal welfare of the person who lacks capacity ( P) may require permission, but not if the issue concerns deprivation of P’s liberty. The detailed thresholds appear in MCA 2005, s 50, and COPR 2017, Pt 8, and this...
FPR 2010, PD 12J ( Child Arrangements and Contact Orders: Domestic Abuse and Harm) A revised Practice Direction 12J within the Family Procedure Rules 2010 came into force on 2 October 2017. PD 12J now subsumes and replaces the President’s Guidance in Relation to Split Hearings ( May 2010) insofar as it pertains to proceedings for CAOs. The fresh iteration followed a report by a Working Group chaired by Cobb J, commissioned by the President of the Family Division, Sir James Munby, after the All- Party Parliamentary Group on Domestic Violence ( APPG) drew attention to the significance of PD 12J in its 2016 Parliamentary Briefing: Domestic Abuse, Child Contact and the Family Courts. The President invited Cobb J to review FPR 2010, PD 12J to assess whether additional amendments were necessary. The ensuing document— Review of Practice Direction 12J FPR 2010 – Child...
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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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