Keeping Family Disputes out of Court

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“I’ll see you in court” is a phrase often uttered by those at the end of their tether who want justice – or at least their version of it. Those working in the Family Court system know how subjective justice can be and how difficult it is to get your day in Court. And it has just got harder.

At the end of April 2024, the Family Procedure Rules (FPR), which govern the procedures used in the family courts in England and Wales, were updated. Most notable in the amendments is the emphasis that those involved in the family justice system must seriously consider the need and suitability of non-court dispute resolution (NCDR) options both before and during any court proceedings. Of course, the need to consider NCDR is not novel; prior to the changes, the courts were already required to ‘consider, at every stage in proceedings, whether non-court dispute resolution is appropriate’. However, it now appears that considering NCDR as a means of resolving matters must be at the heart of family disputes – with possible cost consequences where this is not adhered to.

NCDR is defined as ‘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 Financial Dispute Resolution process) and collaborative law’. Along with highlighting the various methods of dispute resolution which are available to parties, it is also telling that the revised definition has dropped the word ‘normal’ before ‘court process’; there is a distinct move away from the idea that going through the court process is the ‘normal’ or most appropriate way to resolve all family matters. 

Where the court considers that NCDR is appropriate to the matter, parties in the middle of litigation may be required to file statements with the court setting out their views on using NCDR as a means of resolving the matters raised in the proceedings.

For many years now, anyone considering a court application has been required to attend mediation – and specifically a Mediation Information and Assessment Meeting (MIAM) and must now be provided with information not only about mediation but other forms of NCDR. There are very few exceptions to this requirement, the most common being:

  • Domestic Abuse: the language in regard to the domestic violence evidence exemption has changed from ‘domestic violence’ to ‘domestic abuse’ such that the definition now includes controlling or coercive behaviour and economic abuse;
  • Urgency: where an application must be made urgently as
    • there is a risk to life, liberty or physical safety
    • any delay caused by attending a MIAM would cause a risk of harm to a child, a risk of removal of a child from the UK, a significant risk of a miscarriage of justice, a significant financial hardship to the applicant or irretrievable problems with dealing with the dispute; or
    • there are competing jurisdictions which could deal with the case.
  • Previous attendance: Where a party confirms they have attended a MIAM or NCDR process in the four months prior to making an application
  • Bankruptcy

When it comes to advising clients on the options available to them, one of the very significant changes is in relation to cost penalties.  It is rare in family proceedings for there to be any cost orders made against the other party, but the courts will now have specific regard to ‘any failure by a party, without good reason to attend a MIAM or attend a non-court dispute resolution’ in deciding whether to make a costs order. 

As with most things, there will be exceptions where going through a NCDR process may not be appropriate (cases of domestic abuse, high level of conflict between the parties, significant drug/alcohol misuse, severe mental health issues, where one of the parties is not willing to disclose adequate financial disclosure, etc), but where a party has decided not to sensibly engage or consider NCDR to resolve their matter, there could be serious cost consequences.

The clear message from the Courts is don’t issue court applications until you are confident you have tried to settle cases outside court – and can prove it.  It is more important than ever for practitioners to properly advise their clients of the various forms of NCDR available to them. These amendments come at a time where the family court system is severely overwhelmed; parties are having to wait several months for hearings to be listed and matters progressed, and even where hearings are listed, they are being cancelled last minute due to the unavailability of Judges.

The current reality is that the NCDR options are in most cases, more appropriate, speedier and less emotionally draining (for parents and children alike). All in all, the changes to the FPR (strongly) suggest that it is time for a new ‘normal’ and a much smoother but less catchy “I’ll see you at NCDR”.

The Family team at Taylor Walton have considerable experience across all of these options and can guide you to the process most suited to your case. Please do get in touch if you need further information on any of the topics mentioned above.

Disclaimer: General Information Provided Only
Please note that the contents of this article are intended solely for general information purposes and should not be considered as legal advice. We cannot be held responsible for any loss resulting from actions or inactions taken based on this article.

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