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29 November 2018 / David Burrows
Issue: 7819 / Categories: Features , Family
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Evidence in family proceedings 2018

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David Burrows shines the spotlight on the latest developments in evidence & family law

  • Standard of proof: overall assessment on the preponderance of evidence.
  • Obtaining evidence from the police in care proceedings.
  • Expert evidence: a worsening squeeze on legal aid payments in children proceedings.

The law of evidence is mostly defined by the common law, and can only be changed by statute or by higher common law authority. Court rules may define the common law, but they cannot change it. In ‘Achieving best evidence in the civil courts’, NLJ 19 October 2018 at p15, Richard Samuel illustrates this in relation to oral evidence in cases where it ‘really counts’, under Civil Procedure Rules 1998 (CPR 1998) (ie CPR 1998 rr 32.4(1) and (2) (witness statements as a summary of oral evidence), 32.5(2) (statements as evidence in chief) and 32.10 (witnesses with served statements only to give evidence).

The Family Procedure Rules 2010 (FPR 2010) repeat these rules verbatim at rr 22.4, 22.5 and 22.5(2). Meanwhile, achieving of best evidence (ie Achieving

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NEWS
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NLJ this week: Divorce ‘nuclear weapon’ freezes assets but entangles outsiders
Freezing orders in divorce proceedings can unexpectedly ensnare third parties and disrupt businesses. In NLJ this week, Lucy James of Trowers & Hamlins explains how these orders—dubbed a ‘nuclear weapon’—preserve assets but can extend far beyond spouses to companies and business partners 
NLJ this week: What counts as ‘rent’? Court says labour alone won’t do
A Court of Appeal ruling has clarified that ‘rent’ must be monetary—excluding tenants paid in labour from statutory protection. In this week's NLJ, James Naylor explains Garraway v Phillips, where a tenant worked two days a week instead of paying rent
NLJ this week: Freed but failed—justice system leaves the innocent empty-handed
Three men wrongly imprisoned for a combined 77 years have been released—yet received ‘not a penny’ in compensation, exposing deep flaws in the justice system. Writing in NLJ this week, Dr Jon Robins reports on Justin Plummer, Oliver Campbell and Peter Sullivan, whose convictions collapsed amid discredited forensics, ‘oppressive’ police interviews and unreliable ‘cell confessions’
NLJ this week: Clarity on whistleblowing, settlements and tribunal limits
A quiet month for employment cases still delivers key legal clarifications. In his latest Employment Law Brief for NLJ, Ian Smith reports that whistleblowing protection remains intact even where disclosures are partly self-serving, provided the worker reasonably believes they serve the ‘public interest’ 
NLJ this week: Family law urged to ditch adversarial instincts
Family law must shift from conflict-driven litigation to child-centred problem-solving, according to a major new report. Writing in NLJ this week, Caroline Bowden of Anthony Gold outlines findings showing overwhelming support for reform, with 92% agreeing lawyers owe duties to children as well as clients
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