Will the new Family Procedure Rules bring about a sea change in family non-court dispute resolution?
15 May 2024
Associate Solicitor Jelena Korobkova explains the new Family Procedure Rules and explores their potential impact.
The New Family Procedure Rules
The Family Procedure (Amendment No 2) Rules 2023 came into force on 29 April 2024. The emphasis of the new rules is on the engagement and use of (and not a mere consideration of) non-court dispute resolution methods (NCDR), in appropriate family law cases.
While there appears to be a sense of nervousness amongst some lawyers, for those already promoting and actively engaging with NCDR, the changes to their practice will not be dramatic. At Edward Cooke Family Law, we have long striven to encourage all clients to consider non-court dispute resolution where possible and, with four mediators and four collaborative lawyers in our team, we are very experienced in helping clients in all forms of non-court dispute resolution.
Key Changes
A number of key changes have been brought about by the amendments:
The definition of NCDR has been widened to mean ‘methods of resolving a dispute other than through the court process, including but not limited to mediation, arbitration, evaluation by a neutral third party (such as a private FDR process) and collaborative law’. This list is not exhaustive. Whilst lawyers’ negotiations are encouraged, such negotiations are technically not a form of NCDR within the rules, unless such negotiations have been in a collaborative process.
The court has a duty to consider if NCDR is appropriate at every stage in proceedings. The court will require each party to “file with the court and serve on all other parties, a form setting out their views on using [NCDR] as a means of resolving the matters raised in the proceedings”.
Practitioners should expect the court to exercise a greater degree of scrutiny in respect of NCDR options and the reasons for parties not exploring these prior to and during litigation. The court will undertake a detailed assessment as to the appropriateness and availability of NCDR, and it will require updates at every hearing as to the parties’ use and engagement with NCDR.
The court will exercise its duty of active case management, including encouraging parties to use form of NCDR if appropriate. This could be, for example, by using timetabling to extend gaps between the hearings to allow parties to explore NCDR, adjourning hearings, considering listing matters for Directions Hearings, rather than, say, Dispute Resolution Appointments to ascertain how engagement with the NCDR is progressing and even delaying Section 7 reports in children cases. The agreement of the parties will not be required, for instance, to adjourn proceedings.
Amendments have been made to the reference to “domestic abuse” rather than “domestic violence”, to align the FPR more closely with the terms used in the Domestic Abuse Act 2021. This is to acknowledge the many forms that domestic abuse takes, and not just the behaviour that leads to violence.
There will be greater scrutiny of MIAM exemptions and lack of engagement with NCDR. “The Court must take into account whether (a) a MIAM took place; (b) a valid MIAM exemption was claimed or mediator’s exemption was confirmed; and (c) the parties attempted NCDR and what was the outcome thereof.”
The Rules are more restrictive in setting out the circumstances in which the MIAM requirement does not apply. Furthermore, an applicant will no longer be able to rely on a previously granted exemption forever. Naturally, there is concern in respect of matters that involve vulnerable clients, including those who have been subjected to domestic abuse. However, the judiciary receive ongoing and regular training in respect of matters of domestic abuse and its impact on victims and children involved. The intention is not to put those vulnerable individuals under pressure or into a position whereby they are forced to confront their aggressor in an NCDR setting. Consideration of NCDR options will remain subject to engagement being appropriate and, if issues of domestic abuse are a feature of a particular case, those will be given due consideration by the court.
Exploring the Impact of the Changes
In the much-publicised ruling of Knowles J in X v Y (Financial Remedy: Non-Court Dispute Resolution), it can be seen that the amendments are already having a direct practical impact on the parties in litigation. While the use of NCDR methods is not intended to be compulsory (as it is in wider civil litigation), the judge in this case clearly emphasised the power the court now has to adjourn proceedings, without the parties’ agreement, to facilitate engagement with NCDR and the potential costs consequences of non-engagement.
The message is therefore clear. The family court system is under immense pressure and has been for far too long. There are simply too many cases being litigated, causing enormous delays and pressure, which itself can lead to unfair outcomes. While the use of NCDR is not intended to be compulsory at this time, the court will now scrutinise the steps already undertaken and the reason for any delay in engaging with NCDR at each stage of the proceedings.
There is a risk that if, as a legal profession, we do not embrace these changes, in a few years’ time further changes may mean a compulsory element to NCDR. Compulsory mediation is something that is employed in other jurisdictions and other civil proceedings, so this is not completely outside the realm of possibilities. The government has already launched a consultation on the use of compulsory mediation in family law disputes, although neither Resolution nor the Law Society support mandatory pre-court mediation. So, for now, NCDR remains, to a degree, voluntary, but the emphasis is on the legal profession as a whole to make active and engaged use of NCDR options, in all appropriate cases, to bring about fair, swift and cost-effective resolution for as many families as possible.
For further information on non-court dispute resolution options, please explore our 'How we do it' pages or contact our friendly and experienced team.
