In the annual Kingsley Napley Family Team Debate the question of was whether the increasing use of private FDR’s creates a ‘parallel legal system, without judicial oversight’. It was chosen following the results of the firm’s latest caseload survey which revealed 88% of the Family team’s financial cases in 2024 involved a private judge, up from 8% in 2018.
The trend raises an important question about the future of the family courts system, and one which was hotly debated this year.
The motion was: “This House believes that the widespread adoption of private FDRs and arbitration risks creating a parallel legal system without judicial oversight.”
Mr Justice Cusworth kindly acted as chair and the speakers were:
- Nicholas Yates KC – 1 Hare Court
- Brent Molyneux KC – 29 Bedford Row
- Morgan Sirikanda – QEB
- Sophie Connors – 4PB
Each speaker was asked to advocate either for or against the motion, so their comments did not necessarily reflect their personal views.
An audience vote ahead of the debate saw 60% voting in favour, i.e. agreeing that there is a real risk of a parallel justice system. Spoiler alert – this wasn’t the case at the end of the debate!
Jewels in the crown of NCDR
Kicking things off against the motion, our first speaker argued that pFDRs and arbitration are the jewels in the crown of non-court dispute resolution. We were reminded that parties require express approval from the judiciary to conduct a pFDR or arbitration and that private judges are administering exactly the same law, rather than developing it. Therefore, the argument was made that both pFDRs and arbitration take place within the mainstream system, not outside of it.
Those in favour of the motion acknowledged that the court system is slow, expensive and fails to protect individuals’ privacy. However, they raised concerns about a system of secret justice. One speaker wondered where we would be without the seminal decisions of White v White, Miller and McFarlane, Radmacher v Granatino? They argued that these cases may not have been decided in the same way had they taken place behind closed doors because the private system is much more focused on acceptable outcomes rather than what is right.
The same answer with biscuits?
Those against the motion drew on the benefits which pFDRs and arbitrations offer families navigating marital breakdown. A key advantage is that by engaging a private judge, you ensure that your tribunal has read the papers and has sufficient time to engage with the issues and the law. Private judges also have ‘skin in the game’ – a motivation to make sensible and well-reasoned decisions in order to win future work. Alongside this, pFDRs and arbitrations are usually held in comfortable settings and, as all speakers joked, have the much-appreciated offering of biscuits. However, this should not outweigh the real risk of justice being properly administered in the private system.
In support of the motion, it was suggested that certain sectors of society have their own ways of dealing with a quasi-judicial FDR system and that whilst the public believe that they are getting justice, that may not always be the case. If individuals cannot afford to instruct top-tier lawyers, they may start to use non-legal professions to assist. Given that the Family Procedure Rules do not specify that a pFDR judge must be a qualified lawyer, we may see accountants or social workers being instructed to adjudicate financial cases. Our speaker concluded that a system which is cozy and less confrontational will result in chaos, not only for lawyers operating in the sphere, but chaos for the public.
Justice delayed is justice denied
The President of the Family Division recently announced that the London Financial Remedies Court must reduce the number of hearings it conducts for the period October 2025 to March 2026. With this in mind, our third speaker, arguing against the motion, noted that justice delayed is justice denied. Our speaker said that it is inappropriate to criticise how parties chose to resolve their financial cases. With some parties waiting nine months for their court FDR date, our speaker suggested that those in favour of the motion were not advancing parallel justice, they were denying it.
While our “For” speakers acknowledged that private hearings do relieve some of the burden from the court system, they noted that choosing quicker treatment rather than fairness is akin to the NHS vs private healthcare model. They argued that speed should not be prioritised over true impartiality or independence and instead of abandoning the court system for quicker results, we should heed Baroness’ Hale call to fix it, not desert it.
Anonymously autonomous: friend or foe?
In the words of Mr Justice Peel in GH v GH [2024] EWHC 2547 (Fam), FDRs including ‘the increasingly popular’ pFDR are an integral part of the court process. Privacy is a major factor driving their popularity. Our third speaker highlighted the importance of autonomy, particularly when it comes to the personal details revealed by published judgments. At this point, a member of our audience asked why arbitration judgments shouldn’t be published if they are anonymised. Our speakers speculated that while some parties might agree to this, regular publication could undermine the privacy of arbitration, making the process less attractive as a result.
Going further, those for the motion argued that a private system may create conflicts in the solicitor-barrister relationship. Our speaker highlighted that members of the Bar are not in the equivalent elevated position compared to members of the judiciary. Unlike judges, barristers are likely to be instructed by solicitors who may subsequently appear in front of them on a different case in a pFDR or arbitration setting. This places them in a potentially awkward situation if they are having to criticise the solicitors’ costs which in fact make up a decent portion of their earnings as barristers.
Conclusion – progress or parallel justice?
After hearing from all speakers, the audience voted again and this time, approximately 58% opposed the motion, representing a significant shift and reflecting the persuasive arguments made by both sides.
We are incredibly grateful to our chairperson and speakers for such a lively and entertaining debate and to all those who attended.
Nevin Rosenberg (Associate) and Bethany Hall (Trainee Solicitor) in the Family Law team at Kingsley Napley LLP
One Response
I am firmly in favour of widening access to private FDRs and neutral evaluations. Most of our clients are astonished that this route is even available — especially those who are priced out of a full pFDR, but simply want an early indication of what a judge would be likely to decide so they can move on.
There is nothing “parallel” about that. It is the same law and the same judicial instincts, delivered earlier. And in many cases it prevents the situation escalating into years of conflict and financial waste.
Prof. Richard Susskind has long argued in Tomorrow’s Lawyers that legal reform must focus on outcomes — not process — and that “unbundled” services, which deliver targeted expert guidance at the moment it is needed, are not a threat to justice but a way of extending it to more people.
Clients are not seeking biscuits and comfort. They are seeking certainty. Early evaluation provides exactly that — quickly, proportionately, and within the recognisable framework of the family justice system.
Progress, not parallel justice.