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Practice of Family Law, The

Evidence and Procedure


Expert commentary on key aspects which arise in the family courts

  • Published: November 2012
  • Edition: 1st
  • Format: Paperback
  • ISBN: 9781846612947
  • Authors/Editors: David Burrows
  • Category: Family Law
Paperback i

Book printed softcover

The Practice of Family Law PodcastListen to David Burrows discuss recent developments in evidence and procedures within family law.

The Practice of Family Law: Evidence and Procedure provides a detailed commentary on a variety of aspects of evidence and procedure which arise on a day-to-day basis in the family courts. It adopts a wide definition of family law to comprise the law relating to family breakdown (married and unmarried couples) and public law children proceedings.

 It comprises proceedings under the CPR 1998, as well as the mainstream under the FPR 2010, and it also considers administrative law aspects (eg judicial review and tribunals). The book is divided into three sections:

 This section looks at pervasive principles in the family courts: the way the rules are made; confidentiality and legal representation; and the procedural problems thrown up by the parallel sets of rules in different courts.

 A commentary on the procedural aspects of the rules as applied to family proceedings in their wider sense.

 A study of the rules of evidence as they apply in the full spectrum of family proceedings: both in relation to proceedings in the family courts and family matters in other civil courts.

 The Practice of Family Law: Evidence and Procedure is an indispensable guide to evidence and procedure for solicitors, barristers, the judiciary and related professionals.
Part A Introduction:
  • Overview
  • Structure of Family Law
  • Separate/Parallel Jurisdictions
  • Confidentiality and Representation

Part B Procedure:
  • Case Management
  • Bias
  • Undertakings
  • Appeals
  • Set-aside Applications
  • Enforcement
  • Judicial Review
  • Tribunals and Administrative Appeals
  • Costs
  • Agreements on Family Breakdown
  • Consent Orders
  • Interim Remedies

Part C Evidence:
  • Forms and Range of Evidence
  • Issues for Trial
  • Relevance and Admissibility
  • Burden and Standard of Proof
  • Facts Not Requiring Proof
  • Opinion Evidence
  • Information and Inquiry
  • Disclosure
  • Privilege
  • Legal Professional Privilege
  • Self-Incrimination Privilege
  • Without Prejudice Privilege
  • Restrictions on Disclosure
  • Access to Justice Act 1999
  • Civil Evidence Act 1968
  • Civil Evidence Act 1995
  • Civil Procedure Act 1997
  • Courts Act 2003
  • Bankers’ Books Evidence Act 1879
  • Senior Courts Act 1981
  • Constitutional Reform Act 2005
"As every practitioner knows, family law can have many facets and an almost infinite variety of problems, which is why this new volume from Jordans encompasses both the law relating to family breakdown and the public law proceedings relating to children.

 With the everyday needs of the individual practitioner in mind, and pointing out that every family – and every family case -- is different, the author David Burrows has stated two main objectives: first, to deal with subjects that he refers to as important to the process of a family case, but which are not covered by the majority of texts… and secondly, to deal with subjects that are already covered, but in greater detail than one is likely to find elsewhere – evidence being the main example here.

 The book of over 600 pages is divided into three sections, the latter two being procedure and evidence.  It is the introductory first section that provides the practitioner with a thoughtful overview of the fundamentals, including, for example  the meaning of ‘family law’ followed by brief, but thought provoking examinations of the relative merits of inquisitorial or  adversarial processes and the issues concerning the exercise of judicial discretion.

 Part B on case management covers a wide range of matters, from undertakings and appeals, to enforcement, consent orders and costs. Part C scrutinizes the rules of evidence applicable to the full range of family proceedings, including relevance and admissibility… burden and standard of proof… disclosure... privilege… and of course, much more.

 As Burrows points out, the availability of legal aid is dwindling and it is likely, he says, ‘that efficient and fair case management by the courts (administration and judicial alike) is likely to prove to be the only way that the family justice system can be kept afloat.’

 With considerations like this in mind -- as well as a host of others -- the publication of this book is timely and certainly its practical approach -- complete with illustrative cases throughout -- is a boon to the family law practitioner.
 The research undertaken to produce this volume is formidable, with extensive tables of cases, statutes and statutory instruments, plus a detailed table of contents and index. In our view, this book with its entirely contemporary outlook should become a valued addition to the family law practitioners’s library. The law is stated, as the author understands it, to be at 1 October 2012."
Watch this review
 An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers
"David Burrows, an experienced and reliable source...an invaluable tool for every family practitioner and conceivably the (overly) diligent law student...a skilled and thoughtful path through the procedural and evidential landscape...twenty nine chapters divide neatly and logically into three sections each with a specific and unique emphasis...At no time, however, is the writing style overlong or self-indulgent, meaning that ease of access and utility remain at the heart of the work...excellent procedural chapters...brings opportune elucidation to some of the thornier issues that surround family law...Detailed and systematic in its coverage...could be dipped into, a 'go-to' for clarification on a certain point of procedure, evidence or research...brings together within one bound volume all the diverse and disparate procedural and evidential rules with which a family barrister or solicitor ought to be equipped...it is certain to be praised by practitioners...Useful...this text lives up to and exceeds the author's stated aim...strikes just the right tone between instructive, authoritative text and functional, crisp referencer. No practitioner or judge's shelf should be without a copy."
To read the full review click here
         Chris Bevan, Barrister KCH Chambers,
         Family Law journal

Family law, the subject that this book considers, is a truly varied and amorphous subject. Like ‘family justice’ (as in the Family Justice Review), it is a many-faceted topic, which can be as much a product of the society it emerges from as the courts which practice it (it is not so long ago that appeals in care proceedings went from the juvenile court to the Crown Court). I have defined what this book aims to deal with as ‘family law’ in Chapter 1.

 In terms of ‘practice’, the balance of the title, I have dealt with subjects that are important to the process of a family case but which are not covered by the majority of texts; or to deal with some which are already covered, but in more detail than might be possible elsewhere. The subject of evidence is the obvious example of the latter; but I have also tried to cover other procedural topics such as the strike out jurisdiction, ‘bias’, setting aside a court order, aspects of case management and so on. I am conscious always that there will be topics that readers might expect to find, but which are either covered only briefly, or not at all. This is an inevitable result of trying to cover such a varied subject.

 The Family Procedure Rules 2010 are derived, in many respects, from the Civil Procedure Rules 1998; but, as is generally well-known, there are a number of omissions in FPR 2010 of topics that are procedurally important in any civil proceedings. Two persistent themes of the book are therefore: first, to what extent should case law under (and prior to) CPR 1998 be followed where a rule in FPR 2010 is derived from the 1998 Rules (answer: always, save where the contrary is indicated or judicial guidance says otherwise); and, secondly, where there is a rule under CPR 1998 (eg disclosure continuing to the conclusion of proceedings: r 31.11; or information and inquiry under Part 18) is it reasonable to assume that the common law, applicable also to family proceedings, is represented by the rule in CPR 1998 (to which I have generally answered, yes).

A debate that continues, and that will no doubt be stimulated by Ryder J’s recommendations to the new Lord Chancellor arising from the Family Justice Review, is the extent to which family proceedings should be conducted procedurally in a way that is adversarial or inquisitorial. What do these words mean? Do they apply to all family proceedings or only, for example, to certain aspects of children and financial remedy proceedings? Is there still a role for the dialectic approach that the adversarial model represents? To what extent does an individual’s right to privilege apply to any non-adversarial process, and indeed to confidential information that arises outside the court process? Does the court have an independent duty to inquire; and, if so, by what process is this achieved under the present procedural rules?

 To a degree some answers to these questions can be dealt with by effective case management; for as envisaged by Lord Woolf (in his preparation of CPR 1998) case management was to have a central role in the courts’ control of cases and of the evidence – lay and expert – which was permitted to be adduced. As the availability of legal aid dwindles it is likely that efficient and fair case management by the courts (administration and judicial alike) is likely to prove to be the only way that the family justice system can be kept afloat. Lord Woolf’s overriding objective (reproduced as the opening rules of both CPR 1998 and FPR 2010) can work; but perhaps only if there is a firm and consistent judicial hand at the tiller. Again these are matters to which the practitioner can look to future rule changes, as the recommendations of the Family Justice Review take root.

 A challenge for the family law reformer is to narrow the scope for exercise of discretion, without losing sight of the fact that each family is different, their dynamics and how the children relate to one another and their parents are different, and each set of family finances is different. Can decision-making in this context be contained within a set of principles of law, or at least of clear guidelines; or must substantial areas of decision-making still be left to wholly unfettered or unguided judicial discretion? How far should decision-making be allowed to range completely free in forensic open air? And, if so, to what extent do we trust our judges to exercise issue discretion fairly?

 The exercise of judicial discretion is an inevitable and important part of decision-making in the family courts. The resolution of each child’s problems, so far as they come before the court, is different. The circumstances (financial and otherwise) of every family are different from any other family. Anyone who has dealt with the child support scheme and its attempts to reduce family into a regulation-based and discretion-averse form of decision-making – and then only in the area of a couple’s income – will be painfully aware of this. Family law cannot be reduced to a series of mathematical formulae: the variables are too diverse. However, a system based on relatively wide discretion demands that the decision-maker knows the limits of the discretion the law permits; and that the difference between discretion and inherent jurisdiction (only the High Court has any inherent jurisdiction) is observed.

 Family law is law and must be governed by the rule of law. It is also a system that demands fairness and flexibility of its practitioners. Discretion, within guidelines, can provide that fairness and a means to ‘family justice’. I can only hope that in the cross-currents of law and discretion, among the demands for procedural reform – adversarial process, case-managed court procedure and the like – that the reforms that emerge from the Family Justice Review distinguish clearly as between these divergent – sometimes opposing even – strands that are alluded to in this preface and which are considered more fully in the text that follows.

 That this book has been written at all owes a lot to the fact that I have been able to spend many hours in a mansarde (flat) on the edge of Paris with some books and the ever-present internet (mostly my publisher’s FamLex, BAILII and HM’s legislation.gov.uk). Thanks for that go to Lucie Guezenec to whom I dedicate this book.

 The law is stated as I understand it to be at 1 October 2012.

         David Burrows,
 October 2012
David Burrows,
 Solicitor Advocate

 Family proceedings: law of family breakdown

 1.01 Family Procedure Rules 2010 came into effect on 6 April 2011. Their aim is to make the family justice system accessible and efficient. The aim of this book is to provide a commentary on the way in which the family justice system works, primarily by looking at court procedure and rules of evidence before family courts. It looks at what is the meant by the ‘family justice system’ and how legal procedures work within it.

 1.02 ‘Family justice system’ is a term that appears in Courts Act 2003 s 75(5), but which is not further defined in the 2003 Act, perhaps it does not need to be. Its operation in relation to family cases – mostly in relation to procedure and to evidence – is the subject-matter of this book.

 1.03 This chapter starts by proposing a definition for family law for use in the book (Section 2). The forms of substantive law involved in family proceedings are summarised: the inherent jurisdiction of the High Court, statute law and common law (Section 3). Finally the inquisitorial–adversarial debate is considered: it will occur from time-to-time in the remainder of the book.
 1.04 The book itself is divided into three sections:

 A Introductory – This part of the book looks at pervasive principles in the family courts: the way the rules and other delegated legislation are made; confidentiality and legal representation; and the procedural problems thrown up by the parallel sets of rule in different courts.

 B Procedure – There follows a commentary on procedural aspects of the rules as applied in family proceedings in its wider sense.

 C Evidence – The third Part of the book consists of a study of the rules of evidence as they apply in the full spectrum of family proceedings: both in relation to proceedings in the family courts and for family proceedings in other civil courts.

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