The changes will place additional expectations on parties going through relationship and familial breakdown, family practitioners and the courts themselves to continually consider whether cases are suitable for non-court dispute resolution (NCDR).
Background and the ongoing drive for non-court dispute resolution
The drive for NCDR is not new. It has been spurred in recent years by the increased pressure on the courts, which has been exacerbated by the Covid-19 pandemic, as well as the scale of costs of family cases, and the rise of litigants in person.
There have also been a number of reports from the Nuffield Family Justice Observatory and the Family Law Solutions Group which have drawn attention to the huge percentage of separating couples who end up in court. Sir Andrew McFarlane, President of the Family Division, has regularly spoken about how this court should be ‘a last resort’.
A key turning point in recent months has been, when Mrs Justice Knowles recently made an example of the case Re. X (Financial Remedy: Non-Court Dispute Resolution) [2024] which reflects the wider efforts of the MOJ. In this case, the couple had attended a Financial Dispute Resolution hearing and exchanged open offers, but neither had attempted to engage in NCDR before issuing the financial remedy and Children Act proceedings.
Mrs Justice Knowles described the situation as ‘utterly unfathomable’ as she presided over a pre-hearing review in financial remedy proceedings, where the asset base was approximately £27m-£29m. Costs up to the date of the hearing in January had already accumulated to £581,000.
The court then ordered that the case management directions to trial would be delayed until mid-March to allow the parties to focus on resolving their issues outside of the court.
The previous rules (before 29th April 2024) mandated that the court had a duty to consider whether NCDR was suitable for a couple at every stage in proceedings.
However, courts are not afforded the power to require parties to engage in NCDR meaning that the court could not order parties to attend mediation or to engage in a private Financial Dispute Resolution Hearing in financial remedy proceedings.
From 29th April, the definition of non-court dispute resolution will be widened to cover everything outside of court. Where previously the term primarily referred to mediation, it will now encompass any process not court-based, including arbitration, collaborative law, and private FDR hearings.
One of the most significant incoming changes is that courts will be able to adjourn court proceedings to allow time for couples to engage in a form of NCDR. The key thing to note here is that the court will be able to do this whether the parties agree to this approach or not, making its own assessment on whether NCDR would be beneficial.
In addition, parties will be required to set out their views on NCDR in open correspondence, to be supported by a signed statement of truth. The new changes to the FPR will also consider whether a failure, without good reason, to engage in NCDR, should impact on who pays the litigation costs in money cases.
The court will have further powers to impose cost sanctions in cases where parties fail to attend a MIAM or NCDR without valid reason. This applies to both financial cases and children matters and can be made against one or both parties. It is hoped that this will encourage parties to genuinely consider alternative resolution methods.
An Assessment of new FPR changes
These changes have been generally welcomed by practitioners, and it is hoped that the wider definition of NCDR will encourage parties to explore methods that best suit their needs and allow the courts to focus their attention on cases that need judicial input, for example where there are allegations of domestic abuse or other complicating factors such as non-disclosure of assets or non-compliance of court order for example.
However, it may be argued that the incoming changes are not fit for purpose where these complex elements are involved. For example, there may well be cases where domestic violence has been raised as an issue, but there is difficulty in evidencing it. Parties will likely be directed to NCDR, but this is unlikely to be appropriate and there may well be safeguarding issues that arise.
It is vital, therefore, that practitioners focus on the wellbeing and safety of clients.
Some may argue that the rules do not go far enough. Whilst the family court will now have the power to stay proceedings and encourage parties to use this time to explore out of court resolution processes, it cannot force parties to engage in any process which may make it ineffective. In some cases, this may mean unnecessary delay for the parties in resolving maters.
What do family practitioners need to do?
Family practitioners will need to actively signpost to NCDR at the first consultation with a client, pointing out that this is a hurdle that will need to be overcome, rather than just considered as an option. This may mean that there is open correspondence about why NCDR is not appropriate. However, it is likely that the more common response will be for the client and their solicitor to take control of the situation and discuss which method will best suit each unique situation.
Since the implementation of no-fault divorce in April 2022, there has been an attitude shift whereby an increasing number of couples are seeking to resolve their dispute in non-adversarial ways, looking to the future of their relationship as well as wishing to deal with separation and divorce in a more dignified manner. It is widely acknowledged that litigation can be damaging to family relationships, and often hugely increase costs, and therefore, in an ideal scenario, families would be steered away from court.
Other considerations for practitioners will be where there may be risks, including risks in negotiations where the solicitors are not permitted (for example some forms of mediation), and where clients feel vulnerable.
Where relevant, there is a drive to make the process more child inclusive. The Pathfinder Pilot is due to be extended to further courts in Birmingham and South-East Wales after a successful initial run. There are also certain NCDR process which actively include children, such as child-inclusive mediation, which will need to be considered in children act proceedings.
Conclusion
The shift in the way the family justice system operates will be hugely significant and looks to create a less adversarial culture for couples going through relationship breakdown. Not only is there likely to be a relief in pressure on the courts in due course, but a cultural change for families too, and an increased focus on early legal intervention supporting those going through some of the most challenging times in their lives.
Rachel Fisher is a Partner at Stowe Family Law
