Оxford_dictionary_of_law 10 page

See also de bonis non administratis.

challenge to jury

A procedure by which the parties may object to the composition of a jury before it is sworn. Before the Criminal Justice Act 1988 came into force a challenge could be peremptory (i.e. with no reason for the challenge being given) or for cause. Peremptory challenges were abolished by the Criminal Justice Act 1988, but the prosecution can ask that a juror "stand by", in which case he rejoins the jury panel and may be challenged for cause when the rest of the panel has been gone through. Either party may challenge for cause. This may be to the array, in which the whole panel is challenged by alleging some irregularity in the summoning of the jury (e.g. bias or partiality on the part of the jury summoning officer): or to the polls, in which individual jurors may be challenged. Any challenge to jurors for cause is tried by the judge before whom the accused is to be tried.

chambers

pl. n.

1. The offices occupied by a barrister or group of barristers. (The term is also used for the group of barristers practising from a set of chambers.)

2. The private office of a judge, master, or district judge. Most *interim proceedings are held in chambers (in private) and the public is not admitted, although judgment may be given in open court if the matter is one of public interest.

champerty

n.

See maintenance and champerty.

Chancellor of the Exchequer

The minister who, as political head of the Treasury, is responsible for government monetary policy, raising national revenue (particularly through taxation), and controlling public expenditure in the UK. Each year he presents to Parliament a Budget (usually in March) proposing changes in revenue and taxation and a statement (in November) proposing government expenditure.

Chancery Division

The division of the *High Court of Justice created by the Judicature Acts 1873-75 to replace the *Court of Chancery. The work of the Division is principally concerned with matters relating to real property, trusts, and the administration of estates but also includes cases concerned with company law, patents and other *intellectual property, and confidentiality cases. The effective head of the Division is the *Vice Chancellor, although the *Lord Chancellor is nominally its president. It may hear some *appeals.

See also appellate jurisdiction; companies court.

Chancery Masters

See Masters of the Supreme Court.

change of name

A natural person (i.e. a human being) may change his or her "surname simply by using a different name with sufficient consistency to become generally known by that name. A change is normally given formal publicity (e.g. by means of a statutory declaration, deed poll, or newspaper advertisement), but this is not legally necessary. A woman can also change her surname through operation of law on getting married. A young child, however, has no power to change its surname, nor does one parent have such a power without the consent of the other. (An injunction may be sought to prevent a parent from attempting to change a child's name unilaterally.) When a mother has remarried after divorce or is living with another person, and wishes to change the name of the child to that of her new partner, a court order must be obtained and the welfare of the child will be the first and paramount consideration. A person's Christian name (i.e. a name given at baptism) can, under ecclesiastical law, be changed only by the bishop on that person's subsequent confirmation.

A *juristic person may change its name but may be subject to formal procedure before the change of name takes effect; for example, for a company limited by shares, a change of name is possible only on the passing of a special resolution of the Company at an extraordinary or annual general meeting.

Chapter VII

The chapter of the United Nations Charter that is headed: "Action with respect to threats to the peace, breaches of the peace and acts of aggression" and includes Articles 39-51 of the Charter. Those who devised the UN Charter were acutely aware of the failure of the former Covenant of the League of Nations in respect of *collective security, namely (1) that it left it open to member states to respond, or not respond, to the call for military aid and (2) It provided no machinery or system for organizing League forces in advance or for coordinating such responses as members might make. Chapter VII addressed such problems by empowering the Security Council to orchestrate such collective actions under Articles 42 and 43. Under Articles 43-47 advance preparation of collective action was to be made through a *Military Staff Committee. Article 51 creates a right to *self-defence for member states; controversially, it is held to have preserved the Wider scope of self-defence in customary international law.

See also enforcement action.

character

n.

(in the law of evidence)

1. The reputation of a party or witness. In civil cases the reputation of a party is not admissible unless it is directly in issue, as it may be in an action for *defamation. In criminal cases the accused may call evidence of his good character or give evidence to show the bad character of the witnesses for the prosecution. If he does so, the prosecution may call evidence in rebuttal, but any such evidence must be limited to evidence of reputation and not include opinions about the accused's *disposition. Evidence of the reputation for truthfulness of a witness may be given in both civil and criminal cases.

2. Loosely, the disposition of a party.

charge

n.

1. A formal accusation of a crime, usually made by the police after *interrogation.

See also indictment.

2. Instructions given by a Judge to a Jury.

3. A legal or equitable interest in land, securing the payment of money. It gives the creditor in whose favour the charge is created (the chargee) the right to payment from the income or proceeds of sale of the land charged, in priority to claims against the debtor by unsecured creditors. Under the Law of Property Act 1925 the only valid legal charges are:

(1) a *rentcharge payable immediately and for a fixed period or in perpetuity;

(2) a charge by way of legal *mortgage; and

(3) certain charges arising under statute (e.g. under the Charging Orders Act 1979). All others take effect as equitable interests. All mortgages and charges over registered land must be registered to be enforceable against purchases of the land; both legal mortgages and *equitable charges over unregistered land must be registered as land charges unless the mortgagee or chargee holds the title deeds as security (See registration of encumbrances).

4. An interest in company property created m favour of a creditor (e.g. as a *debenture holder) to secure the amount owing. Most charges must be registered at the Companies Registry. A fixed charge is attached to specific assets (e.g. premises, plant and machinery) and while in force prevents the company from dealing freely with those assets without the consent of the lender. A floating charge does not immediately attach to any specific assets but 'floats' over all the company's assets until *crystallization. Until this point the company is free to deal freely with such assets; this type of charge is suitable for circulating assets (e.g. cash, stock in trade), whose values must necessarily fluctuate. In the event of the company not paying the debt the creditor can secure the amount Owing in accordance with the terms of the charge. If the company goes into liquidation (See winding-up) the order for repayment of debts laid down under the Insolvency Act 1986 is that fixed-charge holders are paid before floating-charge holders. A charge can also be created upon shares. For example, the articles of association usually give the company a *lien in respect of unpaid *calls, and company members may, in order to secure a debt owed to a third party, charge their shares, either by a full *transfer of shares coupled with an agreement to retransfer upon repayment of the debt or by a deposit of the *share certificate.

chargeable gain

A profit made on the disposal of an asset, which may attract *capital gains tax or *corporation tax.

charge by way of legal mortgage

See mortgage.

charge certificate

A certificate issued by the Land Registry to a legal mortgagee of registered land as evidence of his title. It will only be issued if the *land certificate is deposited at the Land Registry for the duration of the mortgage.

charge sheet

A document in which an officer at a police station records an accusation against a suspect. It normally also gives details of his name and those of his accusers, who should sign the sheet.

charges register

See land registration.

charging clause

A clause in a trust entitling a trustee to charge for his services. When a solicitor or some other professional person is appointed trustee, he is usually authorized to charge for his services. In the absence of such a clause neither he nor his firm is entitled to charge for his professional services, although he may recover expenses incurred during the course of his trusteeship.

charging order

A court order obtained by a judgment creditor by which the judgment debtor's property (including money, land, and shares) becomes security for the payment of the debt and interest.

charitable trust

A trust for purposes that the law regards as charitable. There is no statutory definition of 'charitable'. In a legal sense, a purpose is charitable only if it is for the furtherance of religion, for the advancement of education, for the relief of poverty, or for other purposes beneficial to the community. In every case the purpose must be for the benefit of the public or a section of it (though in cases of relief of poverty this is very easily satisfied); the precise meaning depends on the class of charity in question. The last class is taken to include every object of general utility to the public; it includes, for example, trusts for the protection of animals generally and for the provision of fire brigades. A trust cannot be charitable unless it is solely and exclusively for charitable purposes: benevolent and philanthropic purposes are not necessarily charitable. Trusts for purposes that are predominantly political are not charitable. A charitable trust has many advantages over a private noncharitable trust: its objects do not have to be certain; charitable trusts are not subject to the *rules against perpetuities or against perpetual trusts; if the objects are or have become impossible or impracticable, the trust may be saved by the *cy-pres doctrine; and the trustees may act by a majority. The greatest benefit to a charitable trust is that it has fiscal advantages: a charity is either wholly or partially exempt from income tax, corporation tax, capital gains tax, inheritance tax, stamp duty, and council tax.

charity

n.

A body (corporate or not) established for one of the charitable purposes specified by statute (See charitable trust). A charity is subject to the control of the High Court in the exercise of its jurisdiction with respect to charities. With certain exceptions, all charities are required to be registered with the *Charity Commissioners.

Charity Commissioners

A statutory body, now governed by the Charities Act 1993, generally responsible for the administration of charities. The Commissioners are responsible for promoting the effective use of charitable resources, for encouraging the development of better methods of administration, for giving charity trustees information and advice on matters affecting charity, and for investigating and checking abuses. The Commissioners maintain a register of charities and decide whether or not a body should be registered: an appeal from their decision may be made to the High Court. Their Annual Reports (published by the Stationery Office) indicate how the Commissioners operate and how they are allowing the law of charity to develop.

charter

n.

1. A document evidencing something done between one party and another. The term is normally used in relation to a grant of rights or privileges by the Crown; for example, the grant of a royal charter to a university.

2. A constitution, e.g. the Charter of the United Nations.

charterparty

n.

A written contract by which a person (the charterer) hires from a shipowner, in return for the payment of freight, the use of his ship or part of it for the carriage of goods by sea. The hiring may be either for a specified period (a time charter) or for a specified voyage or voyages (a voyage charter), and the charterer may hire the ship for carrying either his own goods alone or the goods of a number of shippers, who mayor may not include himself. A special but now rare type of charterparty is the charter by demise. It is analogous to a lease of land and gives the charterer full possession and control of the ship. The normal charterparty is a simple charter, under which the shipowner retains possession and control and the primary rights of the charterer are confined to placing goods on board and choosing the ports of call. A number of standard forms (known by codenames such as Austwheat and Shelltime) have been developed for use in particular trades.

See also bill of lading; cesser clause.

chastisement

n.

Physical punishment as a form of discipline. A parent or guardian has the common-law right to inflict reasonable and moderate punishment on his children and may authorize someone *in loco parentis to do so, such as a child carer, nanny, or school. State schools now prohibit this, although if parents have consented it is still lawful in private schools. A husband does not, however, have the right to chastise his wife, nor a wife her husband. Illegal chastisement may amount to one of the *offences against the person.

chattel

n.

Any property other than freehold land (Compare real property). Leasehold interests in land are called chattels real, because they bear characteristics of both real and personal property. Tangible goods are called chattels personal. The definition of "personal chattels" in the Administration of Estates Act 1925, for the purposes of succession on intestacy, excludes chattels used for business purposes at the intestate's death, money, and securities for money.

cheat

n.

A common-law offence, now restricted to defrauding the public revenue (e.g. the tax authorities). No act of deceit is required. It is enough if one dishonestly fails to make VAT or other tax returns and to pay the tax due.

check-off

n.

A system whereby a company deducts union membership fees from a member's wages during the calculation of those wages and pays them over to the union. Such deductions are regulated by the Deregulations (Deduction from Pay of Union Subscriptions) Order 1998. These require that an employer must obtain the workers' written authorization before making deductions; the authorization remains valid unless and until withdrawn.

cheque

n.

A *bill of exchange drawn on a banker payable on demand. Since a cheque is payable on demand it need not be presented to the drawee bank for acceptance. A cheque operates as a mandate or order to the drawee bank to pay and debit the account of its customer, the drawer. The Cheques Act 1992 gave legal force to the words "account payee" on cheques, making them nontransferable.

cheque card

A card issued by a bank to one of its customers containing an undertaking that any cheque signed by the customer and not exceeding a stated sum will be honoured by the bank This is normally subject to certain conditions; for example, the cheque must be signed in the presence of the payee, the signature must correspond with a specimen on the card, and the payee must write the card number on the reverse of the cheque. The bank thus undertakes to the payee of the cheque that the cheque will be honoured regardless of the state of the customer's account with the bank.

chief rent

See rentcharge.

child

n.

1. A young person. There is no definitive definition of a child: the term has been used for persons under the age of 14, under the age of 16, and sometimes under the age of 18 (an *infant). Each case depends on its context and the wording of the statute governing it. For the purposes of the Children Act 1989 and the Family Law Act 1996 a child is a person under the age of 18.

2. An offspring of parents. In wills, statutes, and other legal documents, the effect of the Family Law Reform Act 1987 is that there is a presumption that (unless the contrary intention is apparent) the word "child" includes any illegitimate child (See illegitimacy). Adopted children are treated as the legitimate children of their adoptive parents.

See also child of the family; qualifying child.

child abuse

Molestation of children by parents or others (See battered child). If the molestation is of a sexual nature, the offender may be guilty of *indecent assault or *gross indecency with children (See also paedophile). It is an offence to take or allow the taking of indecent photographs of a child under the age of 16, to distribute or show such photographs, to advertise that one intends to distribute or show them, or simply to possess them without legitimate reason. Photographs on the Internet and computers have been held by the courts to fall within this legislation.

See also obscene publications.

child assessment order

An order of the court made when a local authority or the NSPCC has concerns for a child's welfare in circumstances when the child's parents are refusing to allow the child to be medically or otherwise examined. The order authorizes such an examination. If a local authority fears that a child is in immediate danger, or when it is denied access to a child, an *emergency protection order should be applied for rather than a child assessment order.

child being looked after by a local authority

A child who is either the subject of a *care order or who is being provided with accommodation by the local authority on a voluntary basis (See voluntary accommodation). In respect of such a child, the local authority must seek, Where possible, to promote contact between the child and its parents, relatives, and others closely connected with the child. Accommodation should be near where the child lives, and siblings should be accommodated together. A written plan should be drawn up before a child is placed; all the people involved in the plan, including the child (so far as is consistent with his age and understanding), should be consulted.

child destruction

An act causing a viable unborn child to die during the course of pregnancy or birth. (A foetus is generally considered to be viable, i.e. capable of being born alive, if the pregnancy has lasted at least 24 weeks.) If carried out with the intention of causing death, and if it is proved that the act was not carried out in good faith in order to preserve the mother's life, the offence is subject to a maximum punishment of life imprisonment.

Compare abortion.

child employee

A child of compulsory school age (i.e. between 5 and 16 years) who undertakes paid work. Subject to certain exceptions, such employment is prohibited in Britain, and any employment under the age of 13 years is completely prohibited. Children are prohibited from working in industrial undertakings, factories, or mines. There are narrow exceptions for work in theatres and films, sports, work experience and/or training, and light work, with strict conditions attached in each case. In many cases these exceptions require that prior authorization is obtained from a local authority with respect to the proposed work

In particular, children falling within some of the above exceptions must not work for more than two hours on any school day (outside school hours) or for more than 12 hours a week during term times. Work must not start before 7 a.m. or after 7 p.m. These restrictions can be relaxed for working time during school holidays and for children between 13 and 15 years of age. Night work by children is prohibited between 8 p.m. and 6 a.m., and children working more than 4Vi hours daily are entitled to a 30-minute break from work Local authorities are also empowered to further regulate the employment of children under byelaws. Although byelaws can differ from authority to authority, the majority conform to guidance issued by the Department of Health and are subject to confirmation and deregulation by the Secretary of State for Health.

Workers aged between 15 and 18 are referred to as young or adolescent workers. Their employment is restricted. At present they are entitled to 12 consecutive hours' rest between each working day, two days' weekly rest, and a 30-minute rest break when working longer than 4 1/2 hours. They are also entitled to four weeks' paid annual leave. The implementation of further restrictions relating to young workers, as required by the Young Workers Directive 94/33/EC, is currently under consideration. These restrictions are: (1) the limitation of the working day to 8 hours and the working week to 40 hours; (2) restriction of night work between midnight and 4 a.m.; (3) restriction of night work between 10 p.m. and 6 a.m. or 11 p.m. and 7 a.m.

child in care

A child who is the subject of a *care order. It is important to note that not all children who are being looked after by a local authority are the subjects of care orders; some of these children may be being accommodated by the local authority on a voluntary basis (See voluntary accommodation).

See also child being looked after by a local authority.

child of the family

A person considered under the Matrimonial Causes Act 1973, the Domestic Procedures and Magistrates' Courts Act 1978, and the Children Act 1989 to be the child of a married couple, although not necessarily born to or adopted by them, on the grounds that he or she has been treated by them as their own child. Courts have powers to make orders in favour of children of the family in all *family proceedings.

child of unmarried parents

See illegitimacy.

Child Protection Conference

A conference that decides what action should be taken by the local authority in respect of a child believed to be at risk of suffering harm. The conference comprises representatives of those bodies concerned with the child's welfare, including the NSPCC, social services, the police, the health and education authorities, and the probation service. Parents have no absolute right to attend the Child Protection Conference but are usually excluded only in exceptional circumstances.

child protection in divorce

The legal rules designed to safeguard the position of children of divorcees. In the past courts would routinely make orders for custody and access in respect of children on divorce. The Children Act 1989, however, introduced a presumption of non-interference; i.e. the court will assume that parents are able to make their own arrangements for their children and will only make an order if it is necessary to do so, for example when the parents are in disagreement. Divorce courts have wide powers to make financial provision and property adjustment orders in favour of children of the family (*child of the family), as well as any *section 8 orders necessary to safeguard the child's welfare. A court is no longer able to make a care or supervision order during divorce proceedings. However, if it is concerned about the welfare of a child before it, the court may direct a local authority to investigate the child's circumstances with a view to determining whether intervention is necessary.

Children and Family Court Advisory and Support Service

(CAFCASS, Cafcass)

An amalgamation of three former services, the Guardian ad Litem Service, the Family Court Welfare Service, and the Official Solicitor's children's department. Cafcass will provide courts with information about children coming before them.

children in care

See child in care; care order.

children in need

Those children designated by the Children Act 1989 as being in need of special support and provision by the *local authority. They include disabled children and children who are unlikely to maintain a reasonable standard of health or development without the provision of these special services.

children's guardian

A person appointed by the court to protect a minor's interests in proceedings affecting his interests (such as adoption, wardship, or care proceedings), formerly known as a guardian ad litem. Since the Children Act 1989 came into force the role of guardians has increased and they must ensure that the options open to the court are fully investigated. However, if a child is deemed capable of instructing a solicitor on his own behalf, he may do so even if this conflicts with the interests of the guardian.

children's tax credit

See income tax.

child safety order

An order that enables local authorities and courts to intervene when a child under the age of 10 (who cannot be prosecuted in criminal proceedings by virtue of his age) behaves antisocially or disruptively. The order was introduced by the Crime and Disorder Act 1998 as part of a strategy to reduce youth crime and is founded on the belief that early intervention is more effective than waiting until a child is old enough to be dealt with under the youth justice system. Application for an order is made by a local authority on the grounds that the child has committed or is in danger of committing an offence, or is in breach of a local child curfew scheme, or has acted in a manner likely to cause harassment, alarm, or distress to a person not living in the same household as the child. The requirements imposed under the order are entirely a matter for the court and might include, for example, attendance at school or extracurricular activities, avoiding contact with disruptive and older children, and not visiting such areas as shopping centres unsupervised. The purpose of the requirements imposed is either to ensure that the child receives appropriate care, protection, and support and is subject to proper control, or to prevent the repetition of the kind of behaviour that led to the child safety order being made. Breach of the order may lead to the court making a *care order in respect of the child.

See also parenting order.

Child Support Agency

CSA

(Child Support Agency, CSA)

See child support maintenance.

child support maintenance

The amount that a nonresident parent (i.e. one who does not live with the child concerned) must pay as a contribution to the upkeep of his or her *qualifying child to a parent with care (i.e. one with whom the child lives) or a person in whose favour a residence order is made (See section 8 orders). Since the Child Support Act 1991, responsibility for the assessment, review, collection, and enforcement of maintenance for children is supervised by the Child Support Agency (CSA), an agency of the Department for Work and Pensions (formerly Social Security) established under the Act, rather than by the court. It is no longer possible for people who do not already have a court order for child maintenance to go to court to obtain an order for periodical payments other than on behalf of stepchildren. However, it is still possible to apply to the court to obtain property settlements or lump sums or when an absent parent does not live habitually in the UK. A child over the age of 12 who lives in Scotland and whose absent parent lives in the UK may apply directly to the Child Support Agency on his or her own behalf. The Agency has wide powers of enforcement: for example it can make an order for payment to be deducted directly from wages or salary (See also clean break). No distinction is made between married and unmarried parents, but when parentage is disputed the Agency has power to apply to the court for a declaration of parentage; if successful this will have effect only for the purposes of the Child Support Act.

Certain changes, contained in the Child Support, Pensions and Social Security Act 2000, have been (or will soon be) implemented; the most important of these is a change in the way in which the amount of maintenance payable by the nonresident parent is calculated. The original formula was extremely complex and took into account the income of the parent with care. The new formula is simply based on the following percentages of the net weekly income of the nonresident parent: 15% if there is one qualifying child; 20% if there are two qualifying children; and 25% if there are three or more. These amounts are reduced if the nonresident parent has one or more other children (for example, the children of a new partner) in his household and if he has staying contact with his child. Under the old system a married father was able to deny parentage, but there will now be a presumption of paternity in favour of both a married father and a person named as father on the child's birth certificate.

Date: 2015-01-29; view: 1210