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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 the principal features and scope of the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (the 2007 Hague Convention). The 2007 Hague Convention aims to deliver a straightforward, swift and effective framework for the mutual enforcement of family maintenance obligations across contracting states. After IP completion day, Council Regulation ( EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and co‑operation in matters concerning maintenance obligations (the EU Maintenance Regulation) ceased to apply in the UK (except in transitional cases) and the 2007 Hague Convention has taken on greater importance and relevance when addressing the cross-border recovery of child support and other family maintenance within the EU. 2007 Hague Convention and Brexit From 31 January 2020 (exit day), the UK was no longer an EU Member State and did not...
This Practice Note provides overarching guidance on how tax affects contributions to, and benefits paid from, pension schemes, together with the varieties of pension orders that can be made within financial order proceedings. Specialist advice should be obtained where necessary. Tax concessions Tax incentives on pension contributions encourage individuals and employers to build up future retirement savings......
THIS PRACTICE NOTE APPLIES TO OCCUPATIONAL PENSION SCHEMES This Practice Note considers pension entitlements within occupational pension schemes for opposite-sex and same-sex spouses and civil partners, assessing the effect of Walker v Innospec and Goodwin v Secretary of State for Education on a member’s death benefits, alongside the extension of civil partnership law to opposite-sex couples. For analysis of the position of partners who are neither married nor in a civil partnership (i.e. cohabitants), see Practice Note: Pension rights of unmarried cohabitants on members’ death. The Note also cites case law from the Court of Justice of the European Union ( CJEU). For guidance on whether EU judgments are binding on UK courts, see Practice Note: Assimilated law — Assimilated case law. In October 2020, the Pensions Minister confirmed expressly that the Supreme Court decision in Walker v...
A surrogacy arrangement describes a situation in which a woman carries a baby for another person, with the expectation that, at birth, the child will be passed to the commissioning couple or party and then brought up as their own. The principal provisions governing these arrangements are set out in the: Surrogacy Arrangements Act 1985 ( SAA 1985) Human Fertilisation and Embryology Act 2008 ( HFEA 2008) Human Fertilisation and Embryology ( Parental Orders) Regulations 2010, SI 2010/985 ( SI 2010/985), revoked by the Human Fertilisation and Embryology ( Parental Orders) Regulations 2018, SI 2018/1412 ( SI 2018/1412) Human Fertilisation and Embryology Act 2008 ( Remedial) Order 2018, SI 2018/1413 ( SI 2018/1413) It is an offence to carry out commercial surrogacy arrangements in the UK, see: The meaning of a surrogacy...
This Practice Note sets out the ‘staying put’ provisions in section 23CZA of the Children Act 1989 ( Ch A 1989). Purpose of the arrangement Eligibility requirements How arrangements should be formalised Duties of the local authority Implications of ongoing care for the foster carer What is the purpose of a staying put arrangement? The ‘staying put’ scheme in Ch A 1989, s 23CZA provides a statutory route for a young person to continue living with their foster family for up to three years after their 18th birthday. Its purpose is to ensure care leavers have the same type of security and support as their peers. Although an 18-year-old is an adult in law, many young people do not yet have the financial independence or emotional maturity to move out on their 18th birthday and establish an independent life. Many young adults still need emotional, practical and financial support from their...
This Practice Note outlines the jurisdiction and criteria for securing child maintenance under the statutory regime run by the Secretary of State for Work and Pensions, operating through the Child Maintenance Service ( CMS), a division of the Department for Work and Pensions ( DWP). It further explains the process for obtaining a maintenance calculation, the applicable eligibility criteria, and the relevant formulae used by the CMS. For consistency, the expression non-resident parent ( NRP) refers to the paying (or potentially paying) parent, while person with care ( PWC) refers to the individual (not always a parent) who receives (or may receive) child support maintenance under the statutory scheme. Introduction The Child Maintenance and Other Payments Act 2008 ( CMOPA 2008) amended the Child Support Act 1991 ( CSA 1991), creating the third child support scheme, which was rolled out to all new...
This Practice Note sets out procedural guidance for managing applications to the Child Maintenance Service ( CMS) for child maintenance under the statutory child support scheme, covering how such applications are handled, what information must be supplied, and the associated enforcement powers available. Child support—basics Since the Child Support Agency closed in 2018, every application for child support maintenance under the Child Support Act 1991 ( CSA 1991) is now administered by the Secretary of State (for Work and Pensions) acting through the CMS. The relevant legislation uses the terminology person with care ( PWC) and non-resident parent ( NRP). In its public-facing material, the CMS refers to the NRP as the paying parent and the PWC as the receiving parent respectively......
Practice Note This Practice Note sets out how to start proceedings for an order of divorce, dissolution, judicial separation or separation on or after 6 April 2022, following the commencement of the Divorce, Dissolution and Separation Act 2020 ( DDSA 2020). It also outlines how to begin proceedings on paper and by electronic means using the His Majesty’s Courts and Tribunals Service ( HMCTS) online system, whether making a joint or sole application. It identifies the parties, considers jurisdiction, specifies which documents should accompany the application, and explains what to do if the marriage certificate is not available. It does not address applications for nullity. DDSA 2020 came into force on 6 April 2022. Proceedings issued by the court on or after that date are governed by the provisions of DDSA 2020 and the procedural changes under the amended Family Procedure Rules 2010 ( FPR 2010), SI...
This Practice Note This Practice Note offers details on, and links to, parental order standard orders produced by the standard orders group under the authority of the President of the Family Division. It includes an order and associated directions concerning applications for a parental order under the Human Fertilisation and Embryology Act 2008 ( HFEA 2008). On 17 May 2023, Mr Justice Peel, the judge responsible for standard orders, confirmed that, authorised by the President of the Family Division and following a review and consultation, the standard orders were revised to mirror developments in law, practice and procedure and to promote overall consistency. See LNB News 17/05/2023 88 for reference. Updated house rules were similarly issued as well......
This Practice Note outlines the principal features of the Solicitors Regulation Authority ( SRA) regulatory framework. Within the SRA Standards and Regulations sit, among other things, the SRA Principles, the SRA Code of Conduct for Solicitors, registered European lawyers ( RELs), registered foreign lawyers ( RFLs) and registered Swiss lawyers ( RSLs), the SRA Code of Conduct for Firms, and the SRA Accounts Rules. It provides signposts to the relevant elements of the SRA scheme and clarifies the central concepts. Links to relevant sections appear. The SRA Standards and Regulations took effect on 25 November 2019, supplanting the SRA Handbook and the 2011 Code of Conduct. Family practitioners must understand their professional duties under the SRA Principles, the SRA Code of Conduct for Solicitors, RELs, RFLs and RSLs, and the Code of Conduct for Firms within the Standards and...
This Practice Note This Practice Note outlines the statutory checklist the court applies when addressing periodical payments for a spouse or civil partner, together with the types of orders available and the way quantum is assessed. It explains when the court may take account of a party’s special requirements, such as a physical or mental disability. It reviews term orders—both extendable and non-extendable—section 28(1A) bars, and clean break arrangements. It also describes the court’s approach to nominal orders and to the variation of those orders. The jurisdiction to direct periodical payments is found in section 23(1)(a) of the Matrimonial Causes Act 1973 ( MCA 1973) and in Schedule 5, Part 1, para 2(1)(a) to the Civil Partnership Act 2004 ( CPA 2004), enabling an order that either party to a marriage or civil partnership shall pay to the other such periodical payments...
This Practice Note It outlines local authorities’ duties to deliver support to special guardians. It describes the approach to assessing requirements for special guardianship support services, including any financial assistance. It further identifies the matters a local authority must consider when completing assessments for financial support under the Special Guardianship Regulations 2005. Under the Children Act 1989 ( Ch A 1989), local authorities are required to arrange the provision of support for special guardians. Such support may consist of counselling, advice and information, or other prescribed services, which can include financial support as set out in regulation......
This Practice Note outlines the process for applying for a special guardianship order ( SGO), setting out the application forms, identifying the respondents, and noting any other person who must be served with notice. It explains the notice that must be provided to the local authority so it can prepare a report, together with the matters that report must address. It also considers potentially relevant directions and the circumstances in which an application may be withdrawn. An SGO is an order under the Children Act 1989 ( Ch A 1989) appointing one or more individuals as a child’s special guardian, or special guardians. An applicant for an SGO must be aged 18 or over and must not be the child’s parent. For further information, see Practice Notes: Special guardianship orders and The effects of special guardianship...
This Practice Note outlines what a special guardianship order ( SGO) is under the Children Act 1989 ( Ch A 1989), and the court’s power to make an SGO either following an application or on its own initiative. It also sets out how an SGO grants parental responsibility for a child and identifies the criteria relevant to making such an order. What is a special guardianship order? A special guardianship order ( SGO) appoints one or more individuals to act as a child’s special guardian. It is often characterised as a ‘half-way house’ between residence orders (now known as child arrangements orders) and adoption orders. The notion of special guardianship concerns the exercise of parental responsibility rather than legal parenthood. Although it is a private law order, it is available in both private and public law proceedings, and will be considered as one of the...
This Practice Note outlines the consequences of obtaining a special guardianship order ( SGO), including the route by which a special guardian gains and uses parental responsibility for a child. It details the impact and consequences of an SGO on the appointment of a child’s guardian, succession, and care orders. It also addresses how an SGO interacts with orders made under section 8 of the Children Act 1989 ( Ch A 1989), where relevant. Special guardianship orders An SGO confers on non-parents a steadier, longer-term legal standing than if they were identified in a child arrangements order ( CAO) as the person with whom the child is to reside; however, unlike an adoption order, it does not sever the child’s legal ties with their birth parents, in essence. See Practice Note: Special guardianship orders. Parental...
This Practice Note explains the narrow scenarios in which, in financial family proceedings, the court may acknowledge a party’s special or stellar contribution to a marriage or civil partnership, warranting a move away from equal division. It traces the development of the special or stellar contribution argument, indicates when such a case should be raised (typically in very high or ultra high net worth matters), and highlights practical points to consider. Background The court must consider a range of factors when making final orders in financial remedy proceedings. This assessment is carried out in light of White v White and Miller v Miller; Mc Farlane v Mc Farlane, which place fairness at the centre of the process. In most cases, the analysis will begin and end with an evaluation of each party’s needs. When assessing the parties’ respective contributions to the marriage or civil...
This Practice Note delivers a high-level overview of the varied forms of social media services and sites, setting out principal ways organisations may deploy them in practice today, while also recognising several business risks that accompany social media use at a glance... Key social media types Social media sites such as Facebook, Tik Tok, Twitter (now known as X), You Tube, Linked In and Instagram commonly sit at the heart of campaigns and community-building efforts. This is in part due to the strong control they give over targeting and reaching specific audiences... A business’s approach to social media will typically be shaped by the nature of its industry, the audience segment in view (for example, Instagram and Tik Tok are popular with 16–24-year-olds), the online spaces and communities its customers and target market frequent, and the likely effectiveness of each site in supporting the...
Practice Note This Practice Note outlines the overarching principles concerning child arrangements orders ( CAOs) that permit a child to live with two or more people who reside separately. It reviews the leading authorities on shared residence orders. The Note also addresses decisions about CAOs specifying with whom a child is to live, together with matters involving same-sex partners. A child arrangements order is an order that sets out arrangements about the person(s) with whom a child is to live, spend time or otherwise have contact, and/or the times when a child is to live, spend time or otherwise have contact with any other person. For additional detail on CAOs that determine living arrangements, and the considerations the court applies when making such orders, see Practice Note: Child arrangements orders—residence......
This Practice Note examines how a claim under the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975) could be settled so as to: optimise access to welfare benefits or tax credits for a claimant prevent a claimant from forfeiting eligibility for other state funding, including community or residential care secure equivalent outcomes for estate beneficiaries who are not I( PFD) A 1975 claimants The powers available under the Inheritance ( Provision for Family and Dependants) Act 1975 Under I( PFD) A 1975, s 2, the court may order periodical payments from the net estate, award lump sums, direct the transfer of specified property, and vary, to the applicant’s advantage, the trusts by which the deceased’s estate is held. Consequently, there is a broad spectrum of ways in which the court may provide for a...
The tax position of an estate is frequently central when resolving claims under the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975)... The taxation of estates Inheritance tax ( IHT) applies to a notional transfer of assets on death. Up to the nil rate band ( NRB) of £325,000 the rate is 0%; thereafter, assets are taxed at 40% (subject to available exemptions and reliefs). Any unused NRB can be transferred to a spouse, and a residence nil rate band ( RNRB) has also been introduced. Transfers to (domiciled) spouses and to charities are exempt from IHT, and certain categories of property—agricultural property and business property—may fall outside the charge. Settlements are governed by a separate taxation regime. For more information, see: Estates—inheritance tax—overview. Capital gains tax ( CGT) is charged on the uplift in value of assets from...
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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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