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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 explains the effects for an unmarried father of obtaining parental responsibility for his child Where an unmarried father is granted parental responsibility, the key consequences are: He is recognised as a ‘parent’ for adoption legislation and may therefore refuse consent to an adoption ( Sections 21, 47(2) and 52(6) of the Adoption and Children Act 2002; See Practice Note: Adoption—placement orders). He gains the right to remove his child (under 16) from local authority accommodation and, if willing and able to provide or arrange accommodation, can object to the child being accommodated at all ( Sections 20(7)–20(8) of the Children Act 1989 ( Ch A 1989)). He is automatically included as a party to care proceedings ( Family Procedure Rules 2010, SI 2010/2955, 12.3; See Practice Note: Public law children procedure— Public Law Outline). He has the power to...
This Practice Note sets out the criminal offences under the Child Abduction Act 1984 ( CAA 1984), and also considers electronic tagging and the Law Commission’s recommendations for amending the offences under the CAA 1984... Criminal law The CAA 1984 created the child abduction offences. Subject to the specified exceptions, a person connected with a child under 16 commits an offence by taking or sending that child out of the UK without the requisite consent......
Under the family Immigration Rules Partners granted leave to remain as a partner are typically placed on a five- or ten-year pathway to settlement in the UK. Nevertheless, a partner may seek an early grant of settlement where the relationship has ended because of domestic abuse. From 31 January 2024, Appendix Victim of Domestic Abuse to the Immigration Rules sets out applications for settlement after a relationship has broken down owing to domestic abuse during the probationary phase of their leave. This new Appendix uses a simplified format and additionally provides for applications made from abroad by victims of domestic abuse who have been abandoned outside the UK. Importantly, review the relationship eligibility rules closely, as the domestic abuse criteria do not align exactly with, or mirror, Appendix FM partner routes; for example, they exclude those with leave to enter or remain as a...
Where a respondent (debtor) cannot be located, enforcing an order becomes problematic. If nothing useful is known and no redirection address exists, information may be sought from government departments. This Practice Note explains when departmental data may be obtained to identify a debtor/respondent’s address, the steps for making an application, the relevant Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955—most notably FPR 2010, PD 6C and FPR 2010, SI 2010/2955, Pt 18—and summarises the details government departments require. It covers applications issued on or after 6 April 2022; for the Practice Direction that applied to applications issued before 6 April 2022, see the earlier version referenced there... Application On an applicant’s request, the court may ask government departments to disclose the address of a debtor who cannot be traced. The governing provisions sit within FPR 2010. From 18 January 2023, FPR 2010, PD 6C was...
Introduction to separation orders for civil partnerships where proceedings were issued before 6 April 2022 This Practice Note outlines separation orders for civil partnerships where proceedings were started before 6 April 2022. It details the requirement to demonstrate one of the four facts under the Civil Partnership Act 2004 ( CPA 2004), and also refers to making an application for dissolution after a separation order has been made. Unreasonable behaviour Desertion Separation for two years with consent Separation for five years The Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) came into force on 6 April 2022. Proceedings issued by the court on or after that date are governed by DDSA 2020 and the procedural changes within the amended Family Procedure Rules 2010 ( FPR 2020), SI 2010/2955. For further guidance, see Practice Note: Introduction to the Divorce,...
Practice Note This Practice Note explains which categories of High Court maintenance orders can be entered on the Family Court register for enforcement, when such entry is suitable, and the steps required to achieve it. It also outlines a party’s enforcement choices, including seeking a change to the method of payment and applying to cancel the registration of the order. The unified Family Court, which commenced on 22 April 2014, replaced the earlier three‑tier family jurisdiction (family proceedings court, County Court and High Court), although the High Court keeps exclusive authority for a limited class of matters (the reserved jurisdiction). As a result, since the creation of the single Family Court, it is no longer possible to register a County Court order in a magistrates’ court for enforcement. Certain periodical payments orders issued by the High Court may instead be registered in the Family Court so they can be...
This Practice Note explains how the court may alter periodical payments (maintenance) orders, outlining its treatment of variation applications and the considerations it will take into account. The Note surveys both the court’s methodology on variation requests and the relevant considerations guiding its evaluation. Guidance is given on timing and on circumstances permitting recovery of payments already made. It also addresses the timing of a variation request and identifies situations permitting a claim for repayment of maintenance, such as the payee’s remarriage or entry into a later civil partnership, or the payer’s death. Authority to alter financial orders arises under section 31 of the Matrimonial Causes Act 1973 ( MCA 1973) and Schedule 5 to the Civil Partnership Act 2004 ( CPA 2004), in particular CPA 2004, Sch 5 Pt 11. When a variation is sought, the court need not revisit the case de novo...
This Practice Note outlines the nature of a pension attachment order made in family proceedings (formerly known as an earmarking order) and identifies which pension benefit rights are capable of attachment and which are not. It also covers the core features of a pension attachment order, the risks and ways to reduce them, variation matters and tax effects. Key features of pension attachment A pension attachment order directs the person responsible for a pension arrangement (the PRPA) to pay a percentage of the following to the person without pension benefit rights (the non-member party), rather than to the person with pension benefit rights under the arrangement (the member-party): pension income, and/or pension commencement lump sum, and/or lump sum payable in respect of the member-party’s death A pension arrangement means an occupational pension scheme, a personal pension scheme, a retirement annuity contract, and...
This Practice Note explores the legal definition of marriage, including marriages between same-sex couples. It also reviews case law on capacity to marry and the procedural requirements for marriage. The principal statutory provisions are found in the Marriage Act 1949 ( MA 1949) and the Marriage Act 1994 ( MA 1994). This Note addresses both the formal steps required for a valid marriage and the ability to marry. The Marriage and Civil Partnership ( Minimum Age) Act 2022 ( MCP( MA) A 2022), in force from 27 February 2023, amends MA 1949 by raising the minimum age for marriage from 16 to 18, ending provisions that allowed 16–17-year-olds to marry with parental or judicial consent (see: LNB News 10/08/2022 22)... General principles General principles have been examined in cases concerning capacity to marry within the courts. In Re SK (vulnerable adult capacity), Wood J...
This Practice Note summarises the court’s powers when making a special guardianship order ( SGO), including decisions about a child’s surname and any removal from the jurisdiction. It also sets out what becomes of existing orders once an SGO is made and the need to consider whether to make a child arrangements order with contact provisions. Existing orders Making an SGO does not, by itself, end any order made under section 8 of the Children Act 1989 ( Ch A 1989) (an s 8 order). Before granting an SGO, the court must specifically consider whether any existing s 8 order should be varied or discharged. The governing test is whether it is in the child’s best interests for an existing order to remain operative. If a CAO with contact provisions stays in force and there is an...
This Practice Note outlines key legal effects of marriage. It details the spouses’ financial duties to one another and rights of occupation in relation to the family home. It considers how spouses are treated for tax purposes. It also addresses the impact of marriage on a father’s parental responsibility for his children, and sets out the position of spouses on death... A marriage can only be ended by a decree of divorce or nullity Under the law of England and Wales, a marriage may only be brought to an end by a decree of divorce/final order or by nullity. A decree of judicial separation does not end the marriage. See Practice Note: Void and voidable marriages. The Divorce, Dissolution and Separation Act 2020, in force from 6 April 2022, removed the requirement to prove one of the five facts in section 1(2) of the...
Stop Press: On 31 March 2026, Sir Andrew Mc Farlane, President of the Family Division, unveiled consolidated guidance on allocation and gatekeeping for children proceedings in the Family Court, taking effect on 5 May 2026. This supersedes the 2014 public and private law guidance and establishes a single allocation framework for all children matters. It formalises the function of gatekeeping teams, aligns allocation with modern procedural pathways (including Child Focused Courts), and reaffirms key principles 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 updated to reflect the President’s guidance. This Practice Note also clarifies the distinction between financial orders and financial remedies under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955. It outlines the financial orders the court may make within: ...
This Practice Note This Practice Note outlines how the family courts address questions of capacity and the methods for assessing it, including the use of expert opinion. Within family proceedings, capacity is pertinent both to a person's ability to litigate and to settle proceedings, such as by agreeing a consent order. The focus is chiefly on an adult's capacity, or on cases where a 16–17 year old is involved in the proceedings and is expected to lack the necessary decision-making capacity on reaching 18. For matters concerning children's representation, see also Practice Note: Children as parties to public law proceedings. Broader issues about capacity in the context of family relationships are addressed in Practice Note: Capacity to marry, cohabit and have sexual relations. In Richardson- Ruhan v Ruhan, Mostyn J observed that a person's capacity to run proceedings is not contingent on...
What do advisers need to know about access by non- British or Irish citizens to marriage and civil partnership in England and Wales? This Practice Note looks at: the steps and potential barriers for a marriage or civil partnership involving a non- British or Irish citizen following commencement of the relevant provisions of the Immigration Act 2014 ( IA 2014) which parts of the new framework may particularly interest or concern immigration practitioners Note that Lexis+® UK does not cover areas of law in Scotland and Northern Ireland that are unique to those jurisdictions. Family law is one such field. However, schemes for referral and investigation akin to the England and Wales regime discussed in this Practice Note have been in force in those jurisdictions from 2 March 2015. See in particular: Referral and Investigation of Proposed Marriages and Civil...
Practice Note This Practice Note sets out the paperwork that must be filed when commencing proceedings for a decree of nullity (that is, an application for a matrimonial order). It applies to relevant applications issued before 6 April 202. It also explains steps where the marriage certificate is unavailable. It highlights the core documents, including the notice of proceeding and the acknowledgement of service. From 6 April 2022, the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) came into force. Although DDSA 2020 does not alter the substantive law on nullity proceedings, it brings consequential procedural changes under the amended Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, affecting both applications for nullity and nullity of marriage orders issued on or after 6 April 2022. The amendments chiefly concern terminology, refreshed forms, and provisions relating to service. These updates apply to...
Cross-border issues emerge whenever an individual holds assets in more than one jurisdiction, faces capacity difficulties while living in or visiting another jurisdiction, or has a nationality, habitual residence, or domicile that connects them to a different jurisdiction. In an ever more globalised world, such challenges are increasingly frequent. In any case with an international element, it will be necessary to determine: Which court has jurisdiction over the person Which state’s laws will be applied Whether orders made in one state will be recognised by the authorities of another state Whether any private mandate intended to operate on incapacity exists and if it will be effective elsewhere Hague Convention XXXV on the International Protection of Vulnerable Adults The Hague Convention XXXV on the International Protection of Vulnerable Adults was formally concluded at The Hague on 13 January 2000, aiming to bring...
Vulnerable persons—participation and evidence in family proceedings The Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, Pt 3A, read alongside FPR 2010, PD 3AA, set out how vulnerable persons take part in family proceedings and how such individuals give evidence in those proceedings. The framework permits the court to issue ‘participation directions’ governing the engagement of a vulnerable person, protected party or child in family proceedings, and also confers a discretion to appoint an intermediary where necessary by the court. FPR 2010, SI 2010/2955, 3A.1 defines an intermediary as a person whose function is to: relay to a witness or party the questions asked of them relay to any questioner the replies provided by the witness or party, and clarify questions or answers so far as is necessary so that they are understood by the witness or party, or by the person...
This Practice Note This Practice Note explains why independent legal advice matters for marital and civil partnership agreements. It reviews the guidance in Radmacher (formerly Granatino) v Granatino, the courts’ treatment of so‑called ‘bad advice’, and pragmatic issues, including how advice is recorded and the role of professional indemnity insurance. It also addresses practical points around documenting advice and professional indemnity cover. The strand of authority stemming from Radmacher requires a rounded assessment of whether each party appreciated the consequences of entering the agreement. That enquiry is holistic, not driven by any single element. Whether independent legal advice was obtained feeds into the analysis but, on its own, is not conclusive. Radmacher further confirmed that having the chance to obtain independent legal advice on the terms of a proposed agreement will be a factor when assessing whether an agreement is ‘fair’......
Spouse and civil partner Those eligible to bring a claim include: the deceased’s spouse or civil partner a former spouse or former civil partner of the deceased, but not someone who has entered a further marriage or civil partnership In practice, a spouse or civil partner is a commonly seen category of claimant. A spouse or civil partner can apply under I( PFD) A 1975 against the estate of their deceased spouse or civil partner where the distribution effected by the Will, the intestacy regime, or a mix of both, fails to make reasonable financial provision. For help on the standard of reasonable financial provision for a spouse or civil partner, see Practice Note: Family provision claims—reasonable financial provision. Marriage The claimant must demonstrate they were the deceased’s spouse or civil partner at the date of death. The marriage needs to be recognised under English law. In most...
Disputed divorce, dissolution and separation proceedings (post- DDSA 2020) This Practice Note outlines how to challenge an application for a matrimonial or civil partnership order (excluding nullity) where the court issued proceedings on or after 6 April 2022. It details the deadlines for lodging an acknowledgement of service and an answer, and describes the methods for doing so, including via the online service. It also clarifies what is required when seeking further information, and guides you through case management hearings and the steps leading to a final hearing. Costs in contested divorce or dissolution are also addressed. For guidance on nullity, see Practice Note: Disputed nullity proceedings (post- DDSA 2020). The Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) commenced on 6 April 2022, introducing major amendments to the rules governing divorce and the dissolution of civil partnerships within the...
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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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