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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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This Practice Note sets out which applications are to be brought under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, Pt 18, and indicates when that mechanism does not apply. The Pt 18 route can be used when an application is issued during extant proceedings; to commence proceedings save where the rules stipulate another course; and in relation to proceedings that have already concluded. The general provisions of FPR 2010, SI 2010/2955, provide guidance on the procedures, processes and forms for specified categories of proceedings including, inter alia, applications for matrimonial and civil partnership orders, applications for financial remedies, applications for occupation orders and non-molestation orders, applications for a forced marriage protection order, and applications concerning children; for other applications made within family proceedings, guidance is contained in Parts 18 and 19. FPR 2010, SI 2010/2955, Pt 18, together with FPR 2010, PD 18A,...
This Practice Note applies solely to occupational pension schemes and is intended for trustees; accordingly, it does not cover compensation sharing orders for schemes within the Pension Protection Fund. From 5 December 2005, following the Civil Partnership Act 2004, pension attachment and pension sharing orders were broadened to include the dissolution of civil partnerships for same-sex couples. Cohabiting partners are outside the scope of both orders, as cohabitation does not confer a right to obtain either. Throughout this Practice Note, any reference to an ex-spouse should therefore be read as including an ex-civil partner... Court orders which trustees may have to implement A married member’s pension entitlement may constitute the sole, or principal, asset built up during the marriage. When the marriage breaks down, the court may, as a result, redistribute between the parties the benefits arising from pension resources in situations where...
This Practice Note summarises the procedure for bringing contempt proceedings under Part 37 of the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955 (also referred to as committal proceedings). It outlines the mandatory formalities, specifies the contents required for a contempt application, and explains the rules on service. It identifies the procedural steps that must be satisfied, the information that an application must contain, and the obligations relating to service. All such points are covered in detail. For assistance with the initial steps for an application for contempt under FPR 2010, SI 2010/2955 Pt 37 — including the pre-issue formalities — see Practice Note: Family contempt proceedings—preliminary steps; for guidance on the hearing of contempt proceedings, including the standard of proof in a contempt application and the court’s available powers, see Practice Note: Family contempt...
Testators have freedom to dispose of their estates as they wish, subject to the formal requirements for making a Will, the requirements of testamentary capacity and statute. A person may opt not to leave a Will, in which event their estate passes under the intestacy regime. Since 1938, statute has imposed artificial limits on testamentary freedom. Today, those constraints sit in the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975), as amended. Its effect is that a testator—along with the Will drafter and personal representatives—must recognise that dependants may bring claims against the estate, which can sharply limit the testator’s freedom. Nor is it enough to rely on intestacy rules, as they too are open to statutory intervention under I( PFD) A 1975. Accordingly, from 1 April 1976, where someone dies domiciled in England and Wales and is...
This Practice Note reviews recent judgments in which the courts have examined whether a parent may authorise their child’s confinement which, in the absence of valid consent, would otherwise amount to a deprivation of liberty. What is deprivation of liberty? Article 5 of the European Convention on Human Rights ( ECHR) safeguards the right to personal liberty and provides that no person should be deprived of that liberty in an arbitrary manner. The protection under Article 5 of the ECHR applies to people of every age. Article 5(1)(e) permits, among others, the lawful detention of 'persons of unsound mind' and minors for the purpose of educational supervision, in accordance with a procedure laid down by law. Article 5 also requires specified safeguards for anyone deprived of their liberty, including the right of access to speedy judicial proceedings to challenge the lawfulness of the...
Practice Note This Practice Note outlines the actions required once a pension order is made in family proceedings, mapping the principal phases and obligations: identifying the valuation date, the transfer day and the valuation day, and the rules on the implementation window under the Welfare Reform and Pensions Act 1999 ( WRPA 1999). It also addresses what happens where implementation occurs after the prescribed four-month period and highlights difficulties that may arise, such as pensions already in payment and the ‘moving target syndrome’. In contrast to pension sharing orders, pension attachment orders do not involve a complicated implementation regime; see: Pensions—financial remedy procedure— Implementation of a pension attachment order. The emphasis here is on the specific, step-by-step requirements for putting a pension sharing order into effect. Matters concerning state pensions are covered in the Practice Note: Pensions—the state pension. A clear grasp of the...
This Practice Note This Practice Note explains the criteria for enforcing an order made in family proceedings via a charging order, as authorised by the Charging Orders Act 1979 ( COA 1979). It covers: Which debts may be enforced Which assets may be made subject to a charge Enforcement by sale It also outlines the procedural steps to follow under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, Pt 40, together with FPR 2010, PD 40A. A charging order is a direction that secures payment of a judgment debt by placing a charge over specified categories of the debtor’s capital assets. Its function is to provide security for the liability, rather than to execute it. A creditor is the person to whom payment of a sum is owed under a judgment or order, or a person entitled to enforce that judgment or order; this includes a court officer...
This Practice Note sets out what an activity direction under the Children Act 1989 is, when such a direction may be made, and the sorts of requirements it may contain. It also describes what activity conditions are, indicating the circumstances in which they can be imposed and upon whom. In addition, it considers the court’s ability to ask the Children and Family Court Advisory and Support Service ( Cafcass) to monitor compliance with any activity direction, condition, or order... Child arrangements orders A child arrangements order is an order concerning: 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 Standard orders exist for private law children proceedings, including for directions and final orders. Their use is not compulsory, but it is strongly...
Notices A notice can offer modest protection for an asset consisting of land or property that is registered, where enforcement of an order or judgment is sought. Such protection is limited in scope and applies to registered estates only. It relates solely to entries on the register. The statutory provisions are found in the Land Registration Act 2002 ( LRA 2002). A notice is the device used to safeguard a third-party right. It is entered in the charges register of the affected title, alerting any prospective buyer to the creditor’s stake in the land. A notice binds anyone later acquiring the land and supplanted the caution against dealings available under the Land Registration Act 1925 (now repealed by LRA 2002). However, a notice does not stop the legal owner disposing of, or otherwise transacting with, the property. That outcome can only be achieved by...
This Practice Note explains the actions required when seeking a domestic abuse protection order ( DAPO) under the pilot operated via FPR 2010, PD 36ZG— Part 3 of the Domestic Abuse Act 2021: Provision during piloted commencement, in the courts named for the pilot, through to the point an order is made. It identifies the geographical areas in scope of the pilot, the process for applications issued on notice and without notice to the respondent, the rules on service, and the types of conditions a DAPO may contain. It also outlines the availability of legal aid for these applications. For guidance on the measures to follow once a DAPO has been made, including service of the order, informing the police of the order, and information about any electronic monitoring requirement, see Practice Note: Domestic abuse protection orders in the Family...
This Family consultation tracker tool sets out the status and latest developments on significant consultations, calls for evidence and inquiries (collectively, 'consultations') carried out by the judiciary, the UK government and other organisations that shape family law. The Law Commission provides a roster of current projects it has initiated and completed matters where a final report has been issued. Its recommendations are then considered by government before being taken forward to Parliament. The tracker is organised by areas of family law and features details of key consultations concerning: Practice and procedure consultations Relationship breakdown consultations Emergency procedures consultations Financial provision consultations Private children consultations Public children consultations Practice and procedure consultations This section of the Family consultation tracker presents all notable consultations, calls for evidence and inquiries relating to family law practice and procedure. The table is ordered in reverse...
This Practice Note This Practice Note sets out guidance on the arrangements under the Family Procedure Rules 2010 ( FPR 2010) for conducting online public law children, adoption and placement proceedings. It covers FPR 2010, PD 41D ( Proceedings by electronic means: public law proceedings and emergency proceedings relating to children) (from 1 November 2022), FPR 2010, PD 41E ( Procedure for using an online system to complete and file certain applications for an adoption order) (from 18 May 2023), and FPR 2010, PD 41F ( Proceedings by electronic means: placement proceedings) (from 1 April 2024). It also addresses the transitional measure in FPR 2010, PD 36P ( Pilot scheme: placement proceedings: procedure for specified steps to be taken via the online system), which applies to specified proceedings issued before 1 April 2024, together with the pilot in FPR 2010, PD 36ZF ( Pilot...
Practice Note This Practice Note describes how to obtain the final order of divorce (formerly decree absolute) or a dissolution order in proceedings run on paper or through the His Majesty’s Courts and Tribunals Service ( HMCTS) online system for applications on or after 6 April 2022, following commencement of the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020). It sets out how to accelerate the final order and how to seek a final order where more than 12 months have elapsed since the conditional order. It addresses the respondent’s entitlement to apply, the consequences of a final divorce or dissolution order, applications to set aside, and circumstances in which the court may postpone making the final order. It also explains how to search the central index of decree absolutes. DDSA 2020 took effect on 6 April 2022. Proceedings issued on or after that date are...
This Practice Note offers a practical guide to completing Form E (financial statement) for a financial order under the Matrimonial Causes Act 1973 ( MCA 1973) or Civil Partnership Act 2004 ( CPA 2004), and for financial relief following an overseas divorce under Part III of the Matrimonial and Family Proceedings Act 1984 or CPA 2004, Sch 7. It outlines the supporting information and documents required and signposts the relevant provisions of the Family Procedure Rules 2010, SI 2010/2955 ( FPR 2010). It assumes a basic familiarity with the background and process of financial remedy proceedings and is designed to help with preparing Form E. Read alongside: Practice Note— Preparation of Form E. See also: Procedural guide—applications for a financial remedy: application to first appointment (standard procedure) and Financial disclosure and Form E—client guide. What is a financial statement in Form E? Once an...
Financial provision for children over the age of 18 This Practice Note sets out the considerations affecting financial support for young people aged over 18, looking both ahead and at those who have already reached that age. It addresses matters common to applications regardless of whether the parents were ever married or in a civil partnership. These include the requirement that the parents are separated before the court has jurisdiction to order provision for an adult applicant; the relationship between maintenance orders and calculations made by the Child Maintenance Service ( CMS); interruption or cessation of education; the position of apprenticeships; and how the court’s powers engage with undergraduate student finance. See Forms and procedure for a table summarising the procedural and legislative frameworks available to individuals seeking financial provision for a child over 18. The issue of financial provision for a child over 18 whose...
Duty of the court to consider a clean break Although a financial clean break is not presumed on divorce, the court remains obliged to assess whether using its powers to end the parties’ mutual financial responsibilities is appropriate. When deploying those powers, the court must also examine how and when each party’s obligations to the other should cease, and aim for termination as soon after the final order or decree as it judges fair and reasonable, consistent with what it regards as just and reasonable. In doing so, it evaluates both the practical method and the timing of that cessation. Section 25A of the Matrimonial Causes Act 1973 ( MCA 1973) – mirrored in the Civil Partnership Act 2004 ( CPA 2004) – does not specify when a clean break order may be appropriate, offering no guidance on the...
Court’s powers Under section 23(1)(c) of the Matrimonial Causes Act 1973 ( MCA 1973) and the parallel provisions of the Civil Partnership Act 2004 ( CPA 2004), the court has authority to require one spouse or civil partner to pay to the other ‘such lump sum or sums’ as are specified. Its jurisdiction is not confined to a single lump sum; it may direct the payment of a number of lump sums. There is, however, only one opportunity to apply for a lump sum, so the statutory power is constrained to awarding one or more lump sums within the scope of a single application. This limit does not extend to lump sums ordered for, or on behalf of, a child of the family, where the court’s power can be exercised ‘from time to time’. The court may alternatively provide that one lump sum is...
This Practice Note reviews the range of insurance arrangements that parties involved in financial remedy cases might hold, such as life insurance/assurance, medical insurance and endowment plans. It also explains when it might be appropriate to implement a fresh policy, sets out the circumstances in which this should be put into effect within the proceedings, and notes drafting considerations when dealing with such policies. Individuals going through divorce or dissolution should audit the insurance products they own, whether in sole or joint names, including policies without a surrender value. The Practice Note concentrates on two areas that often raise more intricate issues: medical insurance and life insurance/assurance. Medical insurance In the UK, private medical treatment is available via private insurance, typically supplementing NHS provision. Employers may include such cover within their pay and benefits as part of a remuneration package, and schemes...
Practice Note This Practice Note sets out guidance on implementing and enforcing financial orders arising from family proceedings when one party has died. It examines the impact of a death on applications, and on secured and unsecured periodical payments, lump sum orders, property adjustment orders and pensions orders. Where a party dies before divorce or dissolution proceedings have begun, the parties remain married or in a civil partnership, and the deceased’s estate passes in line with their will or, if none, the intestacy rules. A claim for a financial order is personal to the spouses or civil partners and does not survive death. If either party dies before an application under the Matrimonial Causes Act 1973 ( MCA 1973) or Civil Partnership Act 2004 ( CPA 2004) for financial provision or property adjustment is made, the court has no...
This Practice Note outlines guidance on making an application to transfer a tenancy under the Family Law Act 1996 ( FLA 1996), covering pre-action considerations and the issuing and commencement of proceedings, case management, the involvement and role of the landlord, disposal of the application, and costs. It further addresses measures available where one party seeks to stop the other from determining (bringing to an end) a tenancy. See also: Procedural guide—transfer of tenancy. The detailed procedure for such applications appears in the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, 8.29–8.34. Applications proceed using the Part 19 procedure; see Practice Note: FPR 2010, Part 19—alternative procedure for applications. Where a tenancy is to be transferred within matrimonial or civil partnership proceedings via a property adjustment order, see Practice Note: Issuing financial proceedings in Form A (standard procedure) for...
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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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