Coercive & controlling behaviour
Read More
Amendments to the Family Procedure Rules (“FPR”) came into effect on 29 April 2024. The FPR are the rules that govern how cases are managed and the procedures to be followed, throughout the court process. The amendments to the FPR now provide the court with more robust tools with which to direct litigants to think again about whether the court system is the correct path, whether in respect of children or finances. In addition, the court will also be able to impose costs orders upon those parties who do not comply with the amended rules. What is clear though is that the court system is still rightly available to those who really need it.
Why is change necessary?
There are two main driving forces behind these amendments. At the heart of the amendments is the desire to steer separating couples and parents away from the court system and into one of the many options available for non-court dispute resolution (“NCDR”). The aim is to protect parties and their children from the rigors and stress of court litigation and to find better ways for parties to resolve their issues, that will benefit them and any children, not just in the short term, but also in the long term.
In addition, encouraging people to seek alternative methods of resolution will also have the added advantage of easing the burden on the court system and the judiciary. Anyone who works within the court system or is a user of the court system will know that it is buckling under the pressure. The current service being provided is less than ideal and unfortunately the resources available are being pulled away from those who desperately need to protect themselves and their children.
What is non-court dispute resolution?
The amended rules have expanded the definition of NCDR 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.”
All of these highly effective tools to help parties reach agreement outside of the court process have been available for many years. You can read more about the NCDR options here. Unfortunately, lip service may have been paid to them by family law professionals in the past. With greater awareness, however, of the unquantifiable human cost of protracted conflict upon parties and their children, coupled with financial cost of litigation, alternative resolution methods have been gaining momentum over many years, with resounding success.
What happens at the beginning of a case?
At the outset of most private family law applications, the parties are required to attend a Mediation Information and Assessment Meeting (“MIAM”) to discuss whether mediation would be a suitable path to follow. The amended rules have now narrowed the exemptions for attending a MIAM and indeed the mediator is required to explore, in detail, all of the NCDR options open to the parties.
What can the court do?
If a court application is subsequently issued, the court will be in a position actively to encourage engagement in NCDR, where parties will be guided and advised by highly-skilled and experienced family law solicitors, mediators, arbitrators and family law barristers.
This encouragement is not just limited to the outset of court proceedings. Judges will be able to consider at various stages of a case whether NCDR is suitable or has indeed become suitable since the last hearing. The parties will now have a duty to file with the court a form (FM5), in which they each set out their views about using NCDR, 7 days in advance of each court hearing.
Judges will be able to push back against parties who simply say, “I don’t want to attend NCDR,” and they will have the ability to adjourn a hearing in order to provide the parties the time to attend NCDR, if it is appropriate.
The court has been provided with valuable tools in order to reflect upon, consider and scrutinise the parties and their case, specifically as to why NCDR is not being used.
But, there will always be those cases where you have either one or both parties who refuse to engage and become so entrenched in their own position that a final court hearing is inevitable, whatever the cost. So, what happens in those instances? How will the court treat one or both of the parties?
Legal costs
The answer can be the imposition of a costs order. The general principle in respect of costs is that each party is responsible for their own, however, the court now has greater powers to depart from this principle and impose costs orders if one party does not comply with the amended rules and fails to engage with NCDR without good reason.
Why should parties engage with NCDR?
Perhaps the better approach is to ask why not. In the absence of safeguarding issues or issues of non-disclosure , why would someone want to subject themselves or their children to excessive levels of stress, protracted court proceedings and the expenditure of vast amounts of money on legal fees, which moneys could be better spent for the benefit of the parties and any children?
I am reminded of the judgment of Recorder Rhys Taylor in KFK v DQD [2024] EWFC 78 (B) when he said, “How much sorrow and cost might these parties have spared themselves if they had each been willing to approach things differently?”
What happens next?
Of course, there are cases that need to be managed through the court process for a variety of different reasons, not least in cases of domestic abuse: the court system is there to support those fundamentally in need. There are many more cases, however, that should have no place in the court system and it is for those cases that these amended rules really need to take effect.
It is now up to the judiciary to use the powers that have been conferred upon them, to help steer real change and to help develop a more progressive approach to resolving family law matters outside of the court system.
If you require any information in respect of the NCDR options available to you, or how these new rules could impact you, then please contact us at enquiries@tandsfamilylaw.com.
Do please look out for our next blog, “Tough love from the bench”, which focuses on the case of NA v LA [2024] EWFC 113, in particular the court’s use of the amended rules.
