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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 reviews the court’s jurisdiction to rescind a financial remedy order where a ‘ Barder’ event has occurred. It surveys authorities on both successful and failed bids to set aside, and the intersection with alternative bases on which such an order might be displaced. The Family Procedure Rules 2010 ( FPR 2010) offer a procedural mechanism for applications to set aside a financial remedy order in cases where no judicial error is alleged, via FPR 2010, SI 2010/2955, 9.9A. There is a powerful public interest in the finality of orders. Yet, on rare occasions, that principle must yield to a subsequent event that was not foreseen and could not reasonably have been foreseen, and which undermines the foundation upon which the original order rested. This kind of supervening development is commonly described as a Barder event, taking its name from the House of...
The general position of the bankruptcy and family courts The interaction between bankruptcy and divorce has been examined in numerous judgments across both the bankruptcy and family courts. Regrettably, it is not unusual for a bankruptcy to be underway while divorce proceedings continue, and parallel actions can give rise to disputes over the distribution of assets. The point at which a bankruptcy petition is presented, when contrasted with the time the family court issues a property adjustment order, is pivotal in determining how bankruptcy proceedings will affect the family case. For further reading on bankruptcy and divorce proceedings, see: Bankruptcy and family financial remedy proceedings—overview Practice Note: The impact of bankruptcy on divorce proceedings Practice Note: Can the court annul a bankruptcy order obtained in order to defeat the divorce proceedings?......
Practice Note This Practice Note sets out how to serve a divorce petition (an application for a matrimonial order) or an application to dissolve a civil partnership within the jurisdiction. It details the papers to be served and the available modes of service, including the requirements for personal service. It also deals with tracing the respondent, alternative service, deemed service, and when the court may dispense with service. The rules for serving on a child and on a protected party are explained. The Divorce, Dissolution and Separation Act 2020 ( DDSA 2020) came into force on 6 April 2022. Proceedings issued by the court on or after 6 April 2022 are governed by DDSA 2020 together with the procedural changes made to the Family Procedure Rules 2010 ( FPR 2010). For further detail, see Practice Note: Introduction to the Divorce,...
Medical treatment of those without capacity to consent As a general rule, it is a patient’s ( P’s) consent that renders invasive medical intervention lawful. Where P cannot provide consent, treatment that is necessary and in P’s best interests may lawfully be given. Section 5 of the Mental Capacity Act 2005 ( MCA 2005) supplies a general defence for acts undertaken in connection with a person’s care or treatment, provided the actor has first taken reasonable steps to assess whether the individual lacks capacity in relation to the decision and reasonably believes both that capacity is absent and that the act is in that person’s best interests. In 2018, the Supreme Court in NHS Trust v Y confirmed that, if the MCA 2005 is complied with, relevant professional guidance is observed and the Code of Practice guidance followed, including the conduct of the...
Sequestration is the process by which a creditor asks the court for sequestrators to take possession of a debtor’s property. In family proceedings, it can arise in two distinct settings. First, it functions as a way of dealing with contempt of court that might otherwise lead to committal; the property is kept until the contempt is treated as purged, ie the order has been obeyed. In this setting, sequestration is called ‘confiscation of assets’ and is provided for by the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, Pt 37, together with FPR 2010, PD 37A. See Practice Note: Sequestration (confiscation of assets) within contempt proceedings. Secondly, and separately, it acts as a method of execution to enforce an outstanding financial order without any contempt, pursuant to FPR 2010, SI 2010/2955, 33.1(2) and the Civil Procedure Rules 1998 ( CPR), SI...
Spouses or civil partners cannot exclude the court’s authority to make financial orders on divorce or dissolution. Nonetheless, the presence of a post-nuptial, maintenance or separation agreement may carry persuasive, and at times decisive, weight on either party’s bid for a financial remedy, subject to the particular circumstances in which the agreement was made. In Radmacher (formerly Granatino) v Granatino, the Supreme Court rejected the idea that there is necessarily any material distinction between a pre-nuptial and a separation agreement, confirming that in either scenario the court may override (or uphold) the agreement. See also Practice Note: Implications of pre-nuptial agreements within proceedings for financial provision. An agreement can be taken into account either as part of the totality of the case’s circumstances, or as conduct that it would be inequitable to disregard. The court must consider whether the...
Security for Costs Under the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, 20.6, a respondent to any application may seek security for the costs of the proceedings if one or more of the gateway conditions in FPR 2010, SI 2010/2955, 20.7 is met. On the same basis, and pursuant to FPR 2010, SI 2010/2955, 20.8, the court can also order security for costs against an appellant, or against a respondent who pursues an appeal. While these powers can be helpful in particular circumstances, their scope is often limited in family proceedings because there is no general rule that costs should follow the event. In MG v AR ( Security for Costs), Mostyn J noted that, unlike the civil case law, in family cases the merits of the application and the strength of the defence must be scrutinised carefully; only by...
Secure accommodation This Practice Note explains what is meant by secure accommodation and indicates which children a local authority may lawfully place there. It further considers human rights issues, placement outside the jurisdiction, unregulated provision, and the ‘mirror procedure’ employed under the High Court’s inherent jurisdiction, which has developed in response to the shortage of secure accommodation places. For practical, procedural guidance on secure accommodation orders, see Practice Note: Secure accommodation—procedure, particularly regarding: Use of secure accommodation without a court order Applying to the court The statutory criteria applied The effect of a secure accommodation order See also Practice Notes: Children, deprivation of liberty and the inherent jurisdiction; Children, consent and deprivation of liberty; Deprivation of liberty court procedure; and The deprivation of liberty safeguards. In Re JR ( Deprivation of Liberty: Care Order: Principles of Care), Lieven J...
Practice Note This Practice Note offers local authorities best practice guidance for accommodating children by voluntary agreement under section 20 of the Children Act 1989 ( Ch A 1989). It sets out the essentials of a section 20 arrangement and underscores the particular need to prevent drift and delay when making decisions about a child’s long‑term care. It further examines whether claims for damages under the Human Rights Act 1998 ( HRA 1998), founded on an alleged breach of Article 8 of the European Convention on Human Rights ( ECHR), are capable of being sustained. The information provided in this Practice Note concerns the current law in England. The Welsh framework in this field is contained in the Social Services and Well‑being ( Wales) Act 2014 and related statutory instruments. For further detailed reading on the Welsh position, see Practice Note: Local...
This Practice Note provides guidance on the arrangement whereby a party to family proceedings assigns part of a prospective entitlement to their solicitors to cover legal fees, and outlines the courts’ guidance on when such agreements are suitable and the need for independent legal advice. The Family Procedure Rules 2010, SI 2010/2955, 1.1 set out the overriding objective, which includes ensuring parties are on an equal footing when a case is dealt with justly. A Sears Tooth agreement can enable a spouse or civil partner who lacks the means to fund legal fees to obtain proper advice and representation in family proceedings. For alternative funding routes, see also Practice Notes: Funding—legal services orders and costs allowances and Eligibility for family legal aid. The Sears Tooth case Assignment of potential rights In Sears Tooth v Payne Hicks Beach, the court considered whether a deed of...
This Practice Note supplies a toolkit with details and links to key Scottish family law commentary, legislation, case law sources, procedural rules, forms, and Scottish family law organisations. Commentary Butterworths Scottish Family Law Service serves as a single point of reference for all aspects of Scots law in Scotland directly affecting married and unmarried partners and their children, including: Married couples and civil partners: Butterworths Scottish Family Law Service [ A1]–[ A1612] Cohabiting couples: Butterworths Scottish Family Law Service [ B1]–[ B247]–[ B280] ......
Practice Note This Practice Note sets out guidance on the court’s authority to order periodical payments and/or lump sums covering school fees and other educational or training outgoings. It outlines the steps to be taken in matters involving parents who are or have been married or in a civil partnership, as well as in situations where the parents have never been married or in a civil partnership, and prescribes the process to follow. Significant limits apply to the court’s ability to make periodical payment orders for a child where the Child Maintenance Service ( CMS) has, or would have, competence to carry out a maintenance calculation. Even so, the court still has power to direct that a parent, or any person who has treated the relevant child as a child of the family, must pay or contribute towards the expense of a child...
This Practice Note outlines how the courts may exercise their powers to make capital orders under Schedule 1 to the Children Act 1989 ( Ch A 1989). It explains who is eligible to apply, the types of orders available (such as lump sums and the transfer or settlement of property) and the considerations the court will address and the factors guiding judicial discretion. It also summarises key authorities and illustrates the range of orders previously granted by the courts, with practical examples of orders. Introduction Beyond periodical payments orders, the court is empowered to make capital orders under Ch A 1989, Sch 1. These orders most often concern the children of cohabitants or former cohabitants. Spouses, former spouses, civil partners and former civil partners have broader remedies under the Matrimonial Causes Act 1973 ( MCA 1973) or the Civil Partnership Act 2004 ( CPA 2004)....
STOP PRESS: On 19 June 2025 the Data ( Use and Access) Bill secured Royal Assent, was enacted as the Data ( Use and Access) Act 2025 ( DUAA 2025), and took partial effect immediately. Provisions dealing with, among other things, handling data subject access requests and granting powers to make further regulations commenced on 19 June 2025. Measures relating to Information Commissioner notices and elements of law enforcement processing started on 19 August 2025, two months after Royal Assent. Most of the Act still awaits commencement via additional statutory instruments. Parts 5 and 6 update elements of UK data protection and e Privacy law, touching the United Kingdom General Data Protection Regulation, Assimilated Regulation ( EU) 2016/679 ( UK GDPR), the Data Protection Act 2018, and the Privacy and Electronic Communications ( EC Directive) Regulations 2003, SI 2003/2426. Most Part 5 measures are...
Safeguarding concerns often underpin or arise during welfare proceedings in the Court of Protection, and this Practice Note explains how such matters should be approached. What is safeguarding? In its widest sense, ‘safeguarding’ covers every facet of a person’s welfare. This understanding of safeguarding guides local authorities’ approach to providing adult services within their functions and commissioning responsibilities too. In proceedings before the Court of Protection, however, ‘safeguarding’ is usually shorthand for what is more precisely described legally as ‘adult protection’ within practice. That term relates to inquiries and interventions by a public authority where there is concern that someone has been, is at present, or could in future be, the victim of abuse. The statutory basis of safeguarding applications Under the Care Act 2014 ( CA 2014), local authorities in England have defined safeguarding duties. In Wales, comparable obligations arise under the Social Services and...
This Practice Note sets out an overview of the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) and the background to its enactment. Explains the shift from retained EU law to assimilated law and the related changes. Identifies impacted legislation of relevance to family practitioners. Retained EU Law ( Revocation and Reform) Act 2023—overview Retained EU law ( REUL) is a construct created by the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018) to preserve continuity in the law after the UK withdrew from the EU and its political and legal bodies. It consists of EU-derived provisions in force immediately before 11pm on 31 December 2020, the implementation period ( IP) completion day. Under EU( W) A 2018, REUL continued in effect beyond IP completion day. Retained EU Law ( Revocation and Reform)...
This Practice Note This Practice Note outlines the narrow exceptions that can be advanced in response to an application pursuant to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the 1980 Hague Convention), encompassing a child’s settlement in a new jurisdiction, consent, acquiescence or failure to exercise rights of custody by the left-behind parent, a serious risk of physical or psychological harm if return is ordered, and the child’s objection to return. It also addresses the courts’ overall stance in child abduction matters regarding the exercise of discretion and immigration considerations. A taking parent will frequently rely on more than one of the available arguments. Strictly speaking, although widely used, the label ‘defences’ is a misnomer; instead, there are narrowly drawn ‘exceptions’ to the ordinary consequences of a wrongful removal, rather than true ‘defences’ that...
This Practice Note This Practice Note outlines the core principles governing an application for a reporting restriction order, referring to the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, Pt 27, alongside FPR 2010, PD 12I ( Applications for reporting restriction orders) and FPR 2010, PD 27B ( Attendance of media representatives or duly authorised lawyers at hearings in family proceedings), and the Practice Note ( Official Solicitor: Deputy Director of Legal Services: Cafcass: Applications for reporting restriction orders), called the Cafcass Practice Note. It addresses who may apply, a requirement to give notice of applications to national press via the Press Association Injunction Applications Alert Service (formerly Copy Direct), and service on non media parties. The framework on openness and media access to the family courts altered in 2009. From 27 April 2009, accredited media...
This Practice Note explains the procedure for seeking a reporting restriction order under the Family Procedure Rules 2010 ( FPR 2010), PD 12I ( Applications for reporting restriction orders) and the Practice Note ( Official Solicitor: Deputy Director of Legal Services: Cafcass: Applications for reporting restriction orders), commonly referred to as the Cafcass Practice Note. It offers guidance on issuing an application, possible bases for exclusion, the considerations the court will weigh, the ambit of a reporting restriction order, and the version of the order issued within the standard orders project. Duly authorised lawyers and accredited members of the media are entitled to be present at family hearings—see Media access and transparency—overview. For an outline of the core principles applicable to applications for reporting restriction orders, and on giving advance notice to the national media through the Press Association Injunction...
This Practice Note This Practice Note explores the court’s jurisdiction to compel repayment of monies paid under a periodical payments order where the recipient later marries or enters a formal civil partnership, or where there is a shift in either party’s circumstances. It further addresses the court’s authority to remit (ie cancel) arrears of periodical payments in suitable cases. Guidance is given on the relevant procedure, treatment of costs, and routes for invoking comparable powers within an application brought under Schedule 1 to the Children Act 1989 ( Ch A 1989). A payer may invite the exercise of these powers by seeking a variation or discharge of a periodical payments order, or in defending, resisting or answering an enforcement application. See generally, Practice Notes: Periodical payments—variation of orders and Enforcement of financial orders. On rarer occasions, the court may act on a...
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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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