Evidence and disclosure

Witness evidence in family proceedings

In contested proceedings the court will often hear evidence from witnesses. The Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pts 17, 22 and 24 apply to witness evidence in family proceedings. An affidavit is the testimony of the person who swears it. A witness statement is the equivalent of the oral evidence the maker would give if called to give evidence.

The general rule is that any fact that needs to be proved by the evidence of witnesses is to be proved:

  1. at a final hearing—by oral evidence

  2. at any other hearing—by evidence in writing

The general rule does not apply to proceedings under FPR 2010, SI 2010/2955, Pt 12 for a secure accommodation order, or an interim care or supervision order, or where the court orders otherwise, or where FPR 2010 or any other enactment provides otherwise (for example, section 45(7) of the Children Act 1989 (ChA 1989), which makes provision as to evidence on an application for an emergency protection order).

The court is entitled to limit cross-examination in furtherance of the overriding

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High Court judgment demonstrates usefulness of section 423 of the Insolvency Act 1986 in Schedule 1 claims (Re P (A Child) (Financial Provision))

Family analysis: In this Schedule 1 case the mother received, for her son’s benefit: a housing fund of nearly £1m (the property to be held on trust); child maintenance (including ‘HECSA’/carer’s allowance) until completion of his first degree; and lump sums in respect of his capital needs and her own substantial liabilities (chiefly relating to her unpaid legal fees). The father (whose resources could be measured in the ‘tens of millions of pounds’) had sought to prejudice the mother’s claims via transferring his valuable shares to family members, who then transferred the same into a trust structure (settled under Czech law). A further onwards transfer was then made of the trust’s assets into a Liechtenstein foundation. Inferences were drawn by the court in respect of the level of the father’s wealth, and specifically as to the value of the transferred shares. Detailed findings were made against him in respect of the identified transactions, which had been the focus of the mother’s section 423 application. Although a section 423(2) order was not actually made, the application was adjourned pending the father’s compliance with the award, with security in the sum of £600,000 also ordered, alongside a continuation of the freezing orders made earlier in the proceedings. David Wilkinson, solicitor at Slater Heelis, considers the issues.

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