A closer look at the new Family Procedure Rules encouraging non-court dispute resolution
7 May 2024
Starting on 29 April 2024, the Family Procedure (Amendment No 2) Rules 2023 (SI 2023/1324) came into effect. These changes aim to encourage early resolution of family matters, with a focus on private law children and financial remedy arrangements. The goal is to reduce the burden on the family court and streamline the resolution process, including considering non-court dispute resolution (NCDR) during natural breaks in court proceedings.
The key changes that took effect from April 29 2024 are as follows.
- Expanding the definition of NCDR: the definition of NCDR will be broadened to encompass various methods beyond traditional court processes. This includes mediation, arbitration, evaluations by neutral third parties (such as a private financial dispute resolution process), and collaborative law. The list is intentionally non-exhaustive to accommodate other methods of resolution. It looks unlikely that lawyer to lawyer negotiations will be captured under this definition.
- Updates in terminology and exemptions: references to “domestic violence” will be replaced with “domestic abuse” in line with the Domestic Abuse Act 2021. The exemption from attending a Mediation Information and Assessment Meeting (MIAM – a first meeting with a specially qualified family mediator to consider whether the issues at hand can be resolved without going to court and provide information regarding NCDR) due to domestic abuse will remain, but with tighter exceptions and evidence required. Additionally, the wording for exemptions based on urgency shall change from “unreasonable hardship” to “significant financial hardship.”
- The court’s role in promoting NCDR: the Rules will now require parties to submit and file their views in a new form (FM5) on the suitability of using NCDR to resolve their case, i.e. as opposed to using the courts. This aims to raise discussion and promote the use of non-court methods throughout the legal process. It is assumed that judges will be well-versed with the different types of NCDR to be able to effectively decide what methods are best for the parties at hand.
- Encouragement of using adjournments for NCDR: where the timetabling of proceedings allows sufficient time, the court may adjourn proceedings to encourage parties to pursue NCDR and the parties’ agreement to using NCDR will no longer be necessary.
- Enhanced responsibilities for MIAM providers: MIAM providers must explain the benefits of mediation and other non-court resolution processes to attendees. They should suggest suitable forms of resolution which will change on a case-by-case basis and guide parties on how to proceed.
- Cost considerations in financial remedy cases: failure, without good reason, to attend a MIAM or engage in NCDR may result in the court departing from the general rule of a no costs order, i.e. a party who has not seriously engaged with consideration of NCDR (where, perhaps, the other party has) may have an order for costs made against them. Those instructed will seriously need to consider taking NCDR into account if they do not already.
These changes aim to make NCDR as accessible and effective as possible. The court’s scrutiny of parties’ efforts and potential penalties for non-compliance underscore the importance of engaging in NCDR methods.
Judges have shown enthusiasm for these rule changes notably in the case of Re X (Financial Remedy: Non-Court Dispute Resolution) [2024] EWHC 538 (Family) in which Mrs Justice Knowles highlighted the court’s expectation for parties to make serious efforts to resolve disputes outside of court where possible.
The Birketts view
The amendments emphasise the importance of resolving family disputes outside of court whenever possible. Parties, practitioners, and the judiciary must consider and prioritise non-court solutions to streamline the legal process and reduce the burden on the family court.
It remains to be seen whether these changes will lead to increased adoption of NCDR, though it does seem far more likely than not. However, with judicial support, the parties’ legal teams and the reinforcement of parties’ responsibilities, there is optimism for a more collaborative approach to resolving family matters.
In many ways, little will change in terms of how we at Birketts help a client to resolve their family law matter. It has always been (and continues to be) the team’s philosophy that, wherever possible, all collaborative ways of reaching a resolution are explored (i) before issuing court proceedings and (ii) throughout proceedings. If you would like to know more about changes to the FPR Rules or the different methods of NCDR, please contact Tom Quinn (Partner), Jennifer Headon (Legal Director), Lauren Guiler (Solicitor) or Jessica Murfitt (Solicitor) in the London Family Team.
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Lauren Guiler
Services
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at May 2024.