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13.06.24

Family Procedure Rules amended to introduce non-court dispute resolution requirements

What are the Family Procedure Rules?

The Family Procedure Rules (FPR) provide practical and procedural guidance on how cases are to be conducted in the Family court system in England and Wales and govern legal professionals and litigants’ conduct in family law proceedings.

Why the changes?

The family courts have been experiencing extreme delays for some time now. The additional expense and stress this is causing has highlighted the need to further encourage parties to explore options to resolve matters out of court.

The changes to the FPR introduced by the Family Procedure (Amendment No. 2) Rules 2023 we discuss below came into force partly on 8 April 2024 and partly on 29 April 2024. They are aimed at promoting early resolution of family law matters through alternative methods of dispute resolution.

What are the changes?

The changes in relation to alternative methods of dispute resolution are as follows:

  1. The definition of “non-court dispute resolution” (NCDR) will be expanded 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 Financial Dispute Resolution process) and collaborative law”.
  2. Mediation Information and Assessment Meetings (MIAMs) are initial meetings conducted by a qualified family mediator who invites the parties to consider whether the issues in dispute can be resolved without the need of going to court. It was to be quite common for parties to ask a mediator for a certificate of exemption to avoid the process without valid reasons in order to be able to commence proceedings. The new FPR 3.3(1A) was introduced to prevent this. Parties will now need to file a statement with the court at the outset to express their views on the suitability of NCDR to resolve the matters in dispute within the proceedings.
  3. In order to increase MIAM attendance and the earlier resolution of private law proceedings relating to children and financial remedy proceedings, there will be stricter rules about MIAMs (apart from when exemptions, such as domestic abuse, urgency, child protection concerns or previous MIAM attendance apply).
  4. FPR 3.8 was amended and removed certain exemptions from the requirement to attend a MIAM, for example:

    a. the current exemption to attend a MIAM if a prospective respondent is uncontactable is removed. Applicants will still need to attend a MIAM. Provision is also made for video and online MIAMs;

    b. FPR 3.9 was amended so that MIAM providers must explain the potential benefits of mediation and other NCDR processes, suggest the most suitable NCDR process and provide information about using it; and

    c. the amended FPR 3.10 enables the court to consider whether a previously validly claimed MIAM exemption is no longer applicable.

  5. FPR 3.9(2) is amended to impose a statutory requirement at a MIAM that the MIAM provider will advise on different forms on NCDR and provide guidance on such options. This will allow individuals to embark on different processes other than mediation.

How will this affect litigants?

The court will have the power to “stay” (i.e. pause) proceedings if they are not satisfied that that attempts have been made at engaging in NCDR. The court will be able to order this even if the parties are not in agreement about the use of NCDR (amended FPR 3.4(1A)).

There may be costs sanctions for a party who has failed to consider and/or engage in methods of NCDR. This should encourage all to use NCDR to avoid the risk of an adverse costs order being made against them (amended rule 28.3(7)).

Conclusion

The changes to the FPR demonstrate the evolution of the family law landscape, which has developed into a more settlement-focused approach wherever possible. The promotion of NCDR measures will certainly assist those individuals able to agree matters in different ways, alleviating the court’s workload to assist those individuals who have no other means of resolving their issues.

A recent judgment handed down remotely on 24 May 2024 by Nicholas Allen KC, sitting as a deputy High Court judge, already shows us how seriously these new rules are taken and how they will affect non-compliant parties.

He said that NA V LA [2024] EWFC 113 was a “paradigm case” for the court to exercise its new powers under Family Procedure Rule Part 3 and 28. He was not satisfied that the case was unsuitable for NCDR and stated that he considered “NCDR to be appropriate and I wish to encourage the parties to engage in the same. This would be to their emotional and financial benefit as well as to the benefit of their children”.

Proceedings were as a result stayed and the Judge, amongst other directions, gave a deadline by which the parties had to confirm what engagement there had been with NCDR so that he could then decide the appropriate way forward.

 

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Legal Disclaimer

Articles are intended as an introduction to the topic and do not constitute legal advice.