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Evidence in Family Proceedings


This specialist title defines the general rules of evidence as they apply to family matters, while the range of rules which apply specifically to family proceedings are also covered in detail.

  • Published: September 2016
  • Edition: 1st
  • Format: Paperback / Online
  • ISBN: 9781784732554
  • Authors/Editors: David Burrows
  • Category: Family Law
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The present mainstream books on evidence do not include coverage of certain features which are unique to family law - eg special law and procedure on hearsay and other rules of evidence (eg litigation privilege and expert evidence) in children proceedings; and the rules on disclosure in financial relief proceedings. At the same time, family lawyers do not always take account of the extent to which they depend on the common law and the rules of evidence which are defined by such mainstream texts.

Accordingly, this specialist title defines the general rules of evidence as they apply to family matters, while the range of rules which apply specifically to family proceedings are also covered in detail.

This title is relevant to all family lawyers, and related professionals such as expert witnesses, social workers, guardians and lay advisers.
  • Introduction
  • Forms and range of evidence
  • Private and open court: evidence in family proceedings
  • Evidence and the court hearing
  • Issues for trial
  • Relevance and admissibility
  • Burden and standard of proof
  • Compellability
  • Facts not requiring proof
  • Opinion evidence
  • Information and inquiry
  • Disclosure
  • Privilege from disclosure
  • Legal professional privilege
  • Self-incrimination privilege
  • Without prejudice privilege
  • Public interest immunity
  • Closed material procedures
  • Children: their voice and their evidence
  • Vulnerable and incapacitated witnesses and parties in family proceedings
  • Special measures for dealing with evidence
  • Evidence on appeal
"The author of Evidence in Family Proceedings, Solicitor Advocate David Burrows declares that “the present mainstream books on evidence do not include coverage of certain features which are unique to family law”. So his mission is to fill the gap and cover such important family law areas as the special law and procedure on
hearsay which apply and other specialist family law rules of evidence ... The title is fundamentally an important ‘hands on’ specialist title, very up to date for practice and advocacy tips, to consolidate “the general rules of evidence as they apply to family matters”, and Burrows covers the range of rules which apply specifically to family proceedings in a clear and concise manner to save us time in court ... for this reason alone that the book is a fundamental purchase for those new to family law advocacy ..."

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An appreciation by Elizabeth Taylor of Richmond Green Chambers and Phillip Taylor MBE of The Barrister, June 2017

"This is the most comprehensive work in its area that I have come across, taking in, where so many other works have dared not tread, hearsay and litigation privilege in children cases and disclosure in financial remedy cases. It is essential stuff for practitioners involved in either the preparation of these proceedings or in their advocacy and experts, guardians and lay advisers have much to gain from it ... Advocates will be unable to find any material to assist the judge on swearing in a witness with a speech impediment or who refuses to take the oath or affirm or deciding whether a witness should or should not hear the evidence which is to precede their own testimony, but that's what judicial training courses are for. Every other angle of evidence receives the most careful attention in digestible text and a kindly introduction to each chapter sets out to tease the topics to be covered if the reader stays with it ..."

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Stephen Gold, New Law Journal, February 2017
Family proceedings are governed, in the first instance, by the common law like
any proceedings in an English court. Sir James Munby P (then Munby LJ)
explained this in Richardson v Richardson [2011] EWCA Civ 79:

‘[53] … The Family Division is part of the High Court. It is not some legal Alsatia
[a lawless part of London in the early seventeenth century just to the west of the
City of London] where the common law and equity do not apply. The rules of
agency apply there as much as elsewhere. But in applying those rules one must
have regard to the context, and the relevant context here is the law [matrimonial
financial relief in that case] …’

This can be said of the rules of agency as of any other aspect of law which
applies the common law to civil proceedings. Thus, it is of many of the legal
principles applied to family proceedings in this book, including, for example,
the rules of precedent. In Willers v Joyce & Anor (Re: Gubay (deceased))
(No 2) [2016] UKSC 44, the doctrine of precedent was touched on by the
Supreme Court (in a judgment concerned with the extent to which courts were
bound by Privy Council decisions). Lord Neuberger said:

‘[4] In a common law system, where the law is in some areas made, and the law
is in virtually all areas developed, by judges, the doctrine of precedent, or as it is
sometimes known stare decisis, is fundamental. Decisions on points of law by
more senior courts have to be accepted by more junior courts. Otherwise, the law
becomes anarchic, and it loses coherence clarity and predictability. Cross and
Harris in their instructive Precedent in English Law 4th ed (1991), p 11, rightly
refer to the “highly centralised nature of the hierarchy” of the courts of England
and Wales, and the doctrine of precedent is a natural and necessary ingredient, or
consequence, of that hierarchy.

[5] The doctrine is, of course, seen in its simplest and most familiar form when
applied to the hierarchy of courts. On issues of law, (i) Circuit Judges are bound
by decisions of High Court Judges, the Court of Appeal and the Supreme Court,
(ii) High Court Judges are bound by decisions of the Court of Appeal and the
Supreme Court, and (iii) the Court of Appeal is bound by decisions of the
Supreme Court.’

Clarity and predictability are the essence of the system of precedent (see also
Rule of Law Tom Bingham [alias Lord Bingham of Cornhill] (2010),
Chapter 3); and this means that junior courts ‘have to accept’ decisions on
points of law of higher courts.

The powers of judges in family law are regulated extensively by statute. This
includes their powers to deal with children (while inherent powers to deal with
wardship dwindle correspondingly); to order that children be taken into care
and adopted; and that marriages or civil partnerships be dissolved and property
be distributed on dissolution. By contrast, many of the principles by which
judges operate statutory powers are governed by rules which go beyond Family
Procedure Rules 2010 and can only be found in the common law.

As Lord Neuberger said in Willers v Joyce (above) the common law ‘is in some
areas made, and the law is in virtually all areas developed, by judges’. So it is
in family law. However, the judge does not operate in a vacuum. The common
law is to be found in, or it is constructed from, a variety of sources. It is
distilled or codified into a statute (as in Youth Justice and Criminal Evidence
Act 1999 and in Senior Courts Act 1981, s 37) or other statutory instrument
(Civil Procedure Rules 1998, Part 31 (disclosure of documents in civil
proceedings)). It is defined in case-law (see the open justice principle as
explained in R (Guardian News and Media Ltd) v City of Westminster
Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB
618). Alternatively, it is found where the High Court has assumed inherent
jurisdiction (save already asserted by the High Court, the Family Court has no
inherent jurisdiction: Matrimonial and Family Proceedings Act 1984, s 31E).
The common law can only be explained afresh or altered by court findings of
the Senior Courts (stare decisis); or by express – that is to say, clearly stated –
statutory provision.

In a subject which is as diffuse as evidence related to family proceedings, I have
tried to find the common law principles which underpin a subject – and, where
need be, to find any source for the common law principle (eg Civil Procedure
Rules 1998, Part 31 and Chapter 12, is an obvious example; or Youth Justice
and Criminal Evidence Act 1999, Part 2). I have then attempted to show how
the common law is developed by the principles which apply to family
proceedings (eg the tension between the open justice principle and family
proceedings where even many aspects of children proceedings are not
completely private: see eg Re S (Identification: Restrictions on Publication)
[2004] UKHL 47, [2005] 1 FLR 591).

I am grateful to Her Honour Nasreen Pearce for discussing with me Chapter 20
on closed material procedures, especially in relation to her specialist areas of
forced marriage protection and female genital mutilation. (Any errors in the
chapter are, of course, mine.) There is considerable doubt as to whether these
extreme areas of restriction of open justice principles can be developed at all,
other than by statute (Bank Mellat v Her Majesty’s Treasury (No 1) [2013]
UKSC 38, [2014] AC 700), but so far as they may be able to do so in children
proceedings (and, eg, in relation to forced marriage protection and female
genital mutilation), Chapter 20 suggests how the common law might be
developed, by analogy with existing statutory provision (Justice and Security
Act 2013 (JSA 2013) and Civil Procedure Rules 1998, Part 82).

The law is stated as I understand it to be at 1 September 2016.
David Burrows
12 September 2016



Family proceedings

1.1 Evidence is the means whereby a case is proved before a court at a
hearing (final or interim), and whereby the outcome of a case is determined.
The appropriate rules of procedure – in this case Family Procedure Rules 2010
(FPR 2010), with some support from Civil Procedure Rules 1998 (CPR 1998) –
are the means whereby the presentation of that evidence is regulated. This
chapter introduces the rules and the court framework within which family law
and family courts procedure operate.

1.2 The aim of FPR 2010 is to make the family justice system accessible and
efficient.1 The jurisdiction of that system was to have been concentrated in a
single court. The majority of the work of the courts on family breakdown is
indeed concentrated in the Family Court, but that court and the notionally
separate Family Division of the High Court operate alongside one another and
under the same set of rules. A very small amount of family breakdown cases
(eg unmarried couples’ property disputes; Inheritance (Provision for Family and
Dependants) Act 1975; some cases under Child Support Act 1991) proceed
under separate rules but in a book on evidence and family proceedings it is not
necessary to labour the procedural distinctions.

1.3 This short introduction to family law and the jurisdictions of the courts
which deal with it proceeds as follows:

  • Part 2: explains what is meant by ‘family law’ and the procedure – FPR 2010 – by which proceedings under family law are dealt with.
  • Part 3: provides a brief overview of the operation of family courts and introduction of the Family Court and the legislation (Matrimonial and Family Proceedings Act 1984 (MFPA 1984), Part 4A).
  • Part 4: introduces the overriding objective in FPR 2010, Part 1 which recurs (especially case management under FPR 2010, r 1.4) throughout the text of this book and judgments considered by it.

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