From 29 April 2024, the Family Procedure (Amendment No 2) Rules 2023 (SI 2023/1324) will come into force. The changes to the Rules are particularly aimed at encouraging early resolution of private law children and financial remedy arrangements, by providing for a major overhaul of FPR Part 3 and a significant amendment to FPR Part 28.

The main focus of the Rule change is to provide an added impetus to the court’s ability to encourage parties to engage in non-court dispute resolution (formerly known as “ADR”) during  natural gaps in court proceedings and potentially to criticise or financially sanction those who fail to do so.

From 29 April 2024:

• The definition of “non-court dispute resolution” in FPR 2.3(1)(b) will be widened 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’. The list is deliberately not exhaustive, allowing for the inclusion of future and emerging methods of dispute resolution.
• References to ‘domestic violence’ will be amended to ‘domestic abuse’ in line with the Domestic Abuse Act 2021, and the definition of ‘domestic abuse’ will be added to FPR 2.3(1). Domestic abuse will still exempt parties from MIAM requirements, but the exceptions will be tightened. For example, the current exemption to attend a MIAM if a prospective respondent is uncontactable is to be removed and applicants will still need to attend a standalone MIAM. The exemption provided by FPR 3.8(1)(c)(ii)(ad) will be amended from ‘unreasonable hardship’ to ‘significant financial hardship’.
• A new FPR 3.3(1)(a) will allow the court to require parties to file and serve ‘a form setting out their views on using non-court dispute resolution as a means of resolving matters raised in the proceedings’. This is aimed at further promoting the use and discussion of non-court dispute resolution throughout the proceedings and ensure that the court is aware of parties’ positions at each stage.
• FPR 3.4(1A) will provide that where ‘the timetabling of proceedings allows sufficient time’, the court may adjourn the proceedings to encourage parties to undertake non-court dispute resolution. Under accompanying amendments to PD3A 4.1, the parties’ agreement to adjourn will no longer be required.
• FPR 3.9(2) will be expanded to impose a requirement on MIAM providers to explain to attendees the potential benefits of mediation and other non-court dispute resolution processes and indicate the most suitable form (or forms) of non-court dispute resolution and how to proceed with using those methods. This serves to reinforce the court’s intention that non-court dispute resolution is not limited to mediation alone, but extended to consideration of all forms of dispute resolution. The amended FPR 3.10 will also enable the court to consider whether a previously validly claimed MIAM exemption is no longer applicable.
• In financial remedy cases, the court’s power to encourage even unwilling parties to engage in non-court dispute resolution will be reinforced by the amendments to the costs sanctions under FPR 28.3(7). This will expressly make a failure, without good reason, to attend a MIAM or non-court dispute resolution, a reason for the court to consider departing from the general starting point that there should be no order as to costs.

Taken together, the new provisions go as close as possible to, without quite amounting to, making non-court dispute resolution compulsory. The aim of the Rules change is to streamline the resolution of family disputes and reduce the burden on the family court.

The court’s ability to scrutinise parties’ efforts to engage in non-court dispute resolution and potentially penalise uncooperative parties with costs orders if necessary in financial remedy proceedings is likely to mean that parties and practitioners can expect a more rigorous assessment of cases as the court exercises its discretion whether to adjourn cases to allow and encourage further efforts at non court dispute resolution.

There is already significant judicial enthusiasm about the changes these rules are likely to bring. Notably, Knowles J in Re X (Financial Remedy: Non-Court Dispute Resolution) [2024] EWHC 538 (Fam) made it clear at the outset of her judgment that her views were designed to assist practitioners in disputes :

“whether concerning money or children, to understand the court's expectation that a serious effort must be made to resolve their differences before they issue court proceedings and, thereafter, at any stage of the proceedings where this might be appropriate. Furthermore, I want to signal that, at all stages of the proceedings, the court will be active in considering whether non-court dispute resolution is suitable. Changes to the Family Procedure Rules 2010 ("the FPR") which are due to come into effect on 29 April 2024 will give an added impetus to the court's duty in this regard..”

This is of course entirely in line with the court’s discretion in civil proceedings to require the parties to engage in non-court dispute resolution, which was highlighted by the case of Churchill v Merthyr Tydfil County Borough Council and Others [2023] EWCA Civ 1416 - Knowles J in Re X particularly noted the dicta of Sir Geoffrey Vos, MR in paragraph 59 of Churchill v Merthyr Tydfil:

"…even with initially unwilling parties, mediation can often be successful. Mediation, early neutral evaluation and other means of non-court based dispute resolution are, in general terms, cheaper and quicker than court-based solutions. Whether the court should order or facilitate any particular method … is a matter for the court's discretion, to which many factors will be relevant."

Knowles J in Re X has made it clear that the court needs to be seen as the last resort rather than parties’ first choice. She emphasises at paragraph 16:

“Non-court dispute resolution is particularly apposite for the resolution of family disputes, whether involving children or finances. Litigation is so often corrosive of trust and scars those who may need to collaborate and co-operate in future to parent children. Furthermore, family resources should not be expended to the betterment of lawyers, however able they are, when, with a proper appreciation of its benefits, the parties' disputes can and should be resolved via non-court dispute resolution. Going forward, parties to financial remedy and private law children proceedings can expect – at each stage of the proceedings - the court to keep under active review whether non-court dispute resolution is suitable in order to resolve the proceedings. Where this can be done safely, the court is very likely to think this process appropriate especially where the parties and their legal representatives have not engaged meaningfully in any form of non-court dispute resolution before issuing proceedings. “.”

Knowles J went on to express in Re X that “if the new FPR rules had been in place, this case would have justified an adjournment to encourage the parties to engage in non-court dispute resolution.”

The onus will now be on the judiciary, practitioners and parties alike to keep at the forefront of their minds the importance of trying to resolve disputes outside of court. Too often it has been the case that one party might appear to consider delay occasioned by court proceedings to be in their interests.  With the advent of these Rule changes, it is now likely that where one party is keen to seek resolution by alternative means, whilst the other is reluctant, that the court will be invited to intervene and require the parties to reconsider by ordering an adjournment and later potentially considering costs sanctions (in financial remedy cases) and disapproval by a failure to do so without good reason.

Time will tell whether these forthcoming amendments actually result in an increased uptake in non-court dispute resolution.  If Knowles J’s view is representative – then it is certainly going to be actively encouraged by the judiciary.

Claire Heppenstall MCIArb &

Sapna Jain, pupil at 1GC Family Law

03.04.2024

Read more about Non-Court Dispute Resolution at 1GC Family Law HERE.