Legal Practice Notes

Duties The obligations of court-appointed deputies are defined by the Mental Capacity Act 2005 ( MCA 2005) and its Code of Practice ( MCA 2005 Code of Practice). In addition, the Office of the Public Guardian ( OPG)’s deputy standards outline what is required of lay, Public Authority and professional court-appointed deputies. Further obligations appear in the deputy’s declaration on Form COP4. General duties arising under the law of agency also apply. The deputyship order A deputy must operate strictly within the specific parameters of the authority granted by the court, as described in the order of appointment. Where a deputy considers that the powers in the appointment order are not sufficient to carry out their responsibilities effectively, they must apply to the court (using Form COP1 and a witness statement on Form COP24) to either: ask the court to make the decision in...

Practice Note This Practice Note explains when the court may postpone the making of a final order in divorce or dissolution cases started on or after 6 April 2022, following commencement of the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020). It also considers applications aimed at blocking the pronouncement of a final order in matters involving religious marriages, and circumstances in which the court, exercising its inherent jurisdiction, may pause the step from conditional order to final order. Although much of the authorities concern the Matrimonial Causes Act 1973 ( MCA 1973), comparable delay provisions exist in sections 39, 40 and 48 of the Civil Partnership Act 2004 ( CPA 2004), save that there is no parallel rule for religious marriages within civil partnership law. The Note covers the applicable law and procedure for applications lodged on or after 6 April 2022, being the date...

Court fees and disbursements On issuing a fresh application to the court, every applicant must pay the relevant court fees and disbursements. Further, charges are due to the supervisory authority, the Office of the Public Guardian ( OPG). If a professional is named as deputy, they may levy fees for work undertaken for the protected person ( P). Both professional and lay deputies can claim back reasonable out-of-pocket expenses. Where the case relates to P’s property and financial affairs, the default position is that the costs of the proceedings, or the part dealing with property and affairs, are borne by P or debited to P’s estate. If the case addresses P’s personal welfare, the usual approach is that no order as to costs is made for the proceedings, or for the welfare element of them. If both property and affairs and personal welfare are in...

This Practice Note This Practice Note examines the circumstances in which contempt proceedings can be pursued under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, Pt 37, where a person has made a false statement in an affidavit, affirmation or other document verified by a statement of truth, or within a disclosure statement. It outlines the procedure to be followed when issuing such proceedings, including when permission is needed to pursue the application, and the test for granting permission. Applications and proceedings concerning contempt of court within family cases are regulated by FPR 2010, SI 2010/2955, Pt 37, together with its accompanying practice direction, the FPR 2010, PD 37A. FPR 2010, SI 2010/2955, Pt 37 applies to family proceedings in which the order to be enforced by committal was made under the provisions of the FPR 2010. It does not extend to other civil...

This Practice Note outlines the process for applying to change a child’s name under sections 8 or 13 of the Children Act 1989 ( Ch A 1989). It identifies who may apply, whose consent is needed to effect the change, when the court’s permission must be obtained, and the steps to be followed. The Note clarifies when the court’s permission is necessary. It also lists the considerations the court must have regard to under the Ch A 1989, together with relevant case law. In addition, it provides guidance on changing a name by deed poll. Children's surnames at registration A child’s birth must be registered within 42 days of the birth. The child’s mother and father are responsible for completing the registration. The surname recorded in the register is the name intended for the child at the date of...

An attachment of earnings order ( AEO) An AEO is a mechanism for enforcing maintenance obligations imposed by a court order made in the Family Court or the High Court, regardless of whether any arrears have accrued, by taking specified sums directly from the debtor’s wages. The order is addressed to the debtor’s employer, not the debtor. Once made, the employer must promptly remit prescribed amounts from the debtor’s pay to the court’s designated collecting officer, who then passes them on to the creditor. The Family Procedure ( Amendment) Rules 2016, SI 2016/355 amended the Family Procedure Rules 2010, SI 2010/2955 ( FPR 2010), and, among other things, created a new Part 39 provision governing applications for an attachment of earnings order to secure payments due under a maintenance order. These provisions took legal effect on 6 April 2016. Under FPR 2010, SI...

This Practice Note explains the actions to take after an initial interview or client meeting, such as drafting a file note and the first client care letter with terms of business. It also outlines good practice for handling documents obtained by ‘self-help’ in accordance with the Imerman decision, and addresses non-court dispute resolution together with property-related steps. File note A file note (often called an attendance note) should be produced immediately after the first interview and after each subsequent meeting or telephone conversation with the client. This contemporaneous record must be placed on the client’s file or uploaded to the electronic case management system in strict chronological order, so it can be relied upon in any future dispute or by fee-earners unfamiliar with the matter. The note created after the first meeting should capture all key background details and the client’s...

This Practice Note explains the court’s jurisdiction for applications seeking a financial order and identifies who can apply, including in respect of a child of the family. It details the types of orders the court may grant. It also addresses the court’s remit where there has been a foreign or overseas divorce or dissolution, clarifying how jurisdiction is engaged in such circumstances. Powers of the court Although the High Court still holds exclusive jurisdiction over a limited category of cases, section 31E of the Matrimonial and Family Proceedings Act 1984 ( MFPA 1984) provides, among other things, that in Family Court proceedings the court may make any order that the High Court could have made if the case were before it. The breadth of these powers has been emphasised by the courts, notably by Mostyn J in CH v WH, where he observed at para [9] that the...

Conduct Under section 25(2)(g) of the Matrimonial Causes Act 1973 ( MCA 1973) and Schedule 5, Part 5 of the Civil Partnership Act 2004 ( CPA 2004) — specifically CPA 2004, Sch 5 Pt 5, para 21(2)(g) — conduct is a distinct consideration where, in the court’s opinion, it would be inequitable to disregard it. The legislation therefore expressly invites the court to assess the parties’ behaviour when determining a financial award. This, in turn, can encourage parties to set out extensive allegations of each other’s poor behaviour; Form E even asks for such details, but with the caveat that misconduct will only be taken into account ‘in very exceptional circumstances’. Clients are often keen to pursue conduct-based arguments. However, within financial order proceedings, conduct is rarely of real relevance, and firm, early advice should be provided...

This Practice Note sets out the court’s authority to strike out a statement of case. It outlines the bases on which a strike out can be ordered and the steps on an application. It considers the court’s discretion, directions that may follow a strike out order and civil restraint orders. It also addresses challenges to strike out orders and the court’s ability to act of its own initiative, alongside the Supreme Court ruling in Wyatt v Vince... Strike out Exercising its case management powers, the court may strike out all or part of a statement of case. A strike out is an order requiring written material to be removed so it cannot be relied upon. For these purposes, a statement of case means the whole or part of an application form or an answer......

Child of the deceased Definition A child of the deceased is an eligible applicant under section 1(1)(c) of the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975) for these purposes. For the avoidance of doubt, I( PFD) A 1975, s 25(1) states that a child includes an illegitimate child and a child en ventre sa mere (ie in the womb) at the date of the deceased’s death. The meaning of child extends to an adult and/or married child as well. A child of the deceased? Questions can arise as to whether the individual is the deceased’s child in particular circumstances in law too. Under the Human Fertilisation and Embryology Act 2008, ( HFEA 2008), the general rule is that where a woman carries a child as a result of placing an embryo in her, or sperm and eggs, or...

This Practice Note outlines the process for making a without notice application for a child arrangements order or a prohibited steps order where urgent action is needed to safeguard a child. It covers out of hours application procedures and the appropriate form of order. It also highlights duties on the applicant and their legal representatives, together with the undertakings the court may require... Child arrangements orders A child arrangements order concerns: 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 Refer to Practice Notes: Child arrangements orders—residence and Child arrangements orders—contact. A prohibited steps order is an order preventing any person from taking a step that a parent could take in exercising parental responsibility for a child, where that step is specified in the order, unless the...

Duration of special guardianship orders A special guardianship order ( SGO) remains in force until the child reaches 18, unless a court brings it to an end earlier. Unlike a child arrangements order ( CAO), an SGO cannot be imposed for a fixed term; it may, nevertheless, include particular provisions intended to operate for a defined period. Variation and discharge of special guardianship orders An SGO can be altered or discharged before the child turns 18, either on application by those permitted categories of applicant or on the court’s own initiative. Certain applicants must first obtain the court’s permission to apply. In some instances, the judge may act without an application being filed at all......

The need to pursue enforcement to effect a child's return from a non- Hague Convention state can emerge after an unanticipated, unheralded removal, or subsequent to consent or a court-authorised short-term removal. Refer to Practice Note: Child abduction—wardship and inherent jurisdiction (non- Hague Convention) for the governing principles and procedural matters in such non- Hague cases. That Practice Note addresses enforcement in child abduction matters outside the Hague regime, including wardship, and sets out relevant practice and procedure. In March 2022, the President of the Family Division released revised guidance on coordination between courts in England and Wales and British Embassies and High Commissions overseas, detailing the steps to follow when judicial consular help is sought. These procedures were settled jointly by the President and the Foreign, Commonwealth and Development Office ( FCDO). See: The Foreign, Commonwealth and Development Office. It explains...

Sequestration Sequestration provides a means of responding to contempt of court that might otherwise lead to committal, acting as a measure that allows the respondent’s assets to be taken and kept until the relevant order is complied with. Attention should be paid to the amendments made to the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, taking effect on 1 October 2020, which significantly altered the position regarding sequestration under the FPR 2010 as it then stood. Corresponding revisions were also implemented in the Civil Procedure Rules 1998 ( CPR), SI 1998/3132; see: Background and News Analysis: Changes to contempt of court in family proceedings. Sequestration arises in two distinct settings. This Practice Note focuses solely on the confiscation of assets (encompassed by the term sequestration) in proceedings for contempt under the substituted FPR 2010, SI 2010/2955, Pt 37, effective from 1 October 2020, and is...

This Practice Note It assesses the range of privileges that can arise in financial remedy proceedings, notably legal professional privilege and litigation privilege. It also outlines when privilege might be waived, issues around disclosure to third parties, the treatment of without prejudice exchanges, and related procedural matters. In financial proceedings there is an ongoing and continuing obligation to give full, frank and transparent disclosure. That disclosure must cover all material facts, documents and papers and other information bearing directly on the issues in the case, together with any significant developments following the initial provision of disclosure. Solicitors are under a duty to explain this obligation to their clients in clear terms, and to warn of the potential consequences if it is breached, which can include criminal penalties under the Fraud Act 2006. Where a party seeks to withhold disclosure by asserting privilege, the burden lies on that...

This Practice Note outlines the principle, for certain private law applications under the Children Act 1989 ( Ch A 1989), that a child’s welfare must be the court’s paramount consideration. It explains when the paramountcy principle is to be applied, and also identifies the kinds of applications to which it does not apply. The paramountcy principle When any court decides any question regarding: the upbringing of the child, or the administration of the child’s property or the application of any income arising from it In such cases, the child’s welfare is the court’s paramount consideration, unless statute expressly or by implication excludes it. The court must treat the child’s welfare as its paramount consideration, not its ‘first and paramount consideration’, as under the previous provisions; however, no alteration of practice was intended......

Immediately after the trustee in bankruptcy (trustee) is appointed, the bankrupt’s estate passes to them, and the bankrupt’s assets—often led by their home—typically represent the most significant part of the estate. On taking office, the trustee’s overriding objective is to protect and realise the value of the bankrupt’s share in any property so that bankruptcy creditors receive the proceeds in the bankruptcy estate......

Application to vary a periodical payments (maintenance) order This Practice Note outlines how to pursue a variation of a periodical payments (maintenance) order. It covers the court’s discretion to capitalise maintenance on a variation application, the fast-track (shortened) financial remedy route under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, and the obligation to attend a mediation information and assessment meeting ( MIAM). It also sets out how to seek a direction that the standard financial remedy procedure should replace the fast-track (shortened) route. The fast-track (shortened) route is confined to applications varying a periodical payments order only. Any other type of variation application proceeds under the standard procedure. Where, on a variation of periodical payments, the applicant asks for the order to be dismissed (immediately or later) and replaced with one or more orders capitalising maintenance, the standard procedure...

Variation—pension sharing orders This Practice Note sets out guidance on changing pension sharing orders and pension attachment orders arising in family cases, alongside appeals. It also outlines the procedural elements for both variation and appeals, and addresses applications for capitalisation. Variation before final order/decree absolute Where no final order/decree absolute of divorce, dissolution or nullity has been made—and the pension sharing order has therefore not taken effect—the court may vary or discharge that order. An application to vary may only be issued before the final order/decree absolute is granted. Once a marriage or civil partnership has been dissolved, or a final nullity order pronounced, no application can be brought to vary a pension sharing order, even if it is yet to take effect. Filing an application to vary stops the pension sharing order from taking effect while the application is determined. Such...