The Family Procedure Rules changed on 29 April, with the aim of diverting cases away from the courts and encouraging families to resolve their disputes in a different way. This article explains the Family Procedure Rules and highlights the changes that have come into force.
First introduced in 2010, the Family Procedure Rules are a set of processes that were intended to standardise how cases are dealt with by family courts in England and Wales.
These rules are not set in stone. They have been updated numerous times to reflect changing attitudes and approaches to the law in this area.
Previously, the Family Procedure Rules had focussed on mediation as the primary alternative to court proceedings, but this definition has now been updated to encompass mediation, arbitration, collaborative law or evaluation by a neutral third party, such as private financial dispute resolution hearings.
The change is to encourage people to consider options for resolving their disputes, other than by court proceedings.
The court now has the ability to take a far more active role in this area. There is greater flexibility for judges to adjourn court proceedings, where the court timetable allows, to encourage the parties to explore non-court dispute resolution (NCDR).
The agreement of the parties involved in the proceedings to this step is no longer required. Judges should also now actively question whether NCDR is appropriate throughout a case.
The rules now require the parties to submit a new form, known as FM5, ahead of hearings, setting out their view on the suitability of NCDR to their case. This means parties have to consider NCDR throughout the case, not just at the start.
It’s still the case that if you wish to start court proceedings, you must first obtain a mediation information and assessment meeting (MIAM) certificate from a qualified individual.
However, providers now have new responsibilities to discuss the benefits of meditation and other NCDR options, before they provide the certificate, including why they may be suitable and the practicalities of each of these options.
There has also been a reduction in the number of exemptions that can be claimed for attending a MIAM.
If there has been a failure to properly consider NCDR, engage in NCDR or attend a MIAM, without a good reason, there is the potential for the court to depart from the usual rule in family proceedings. The usual rule is that both parties pay their own costs, but failing to engage with NCDR without good reasons, may end up with an order being made against one party to pay at least some of the legal costs incurred by the other party.
This is part of an increased focus by the court on trying to encourage parties to explore solutions to their disputes outside of court proceedings and to negotiate openly and reasonably.
Whilst these provisions appear to stop short of outright forcing parties to engage in NCDR, they highlight a focus on NCDR and signal a further move away from court proceedings as the default. These changes come as there is a sea-change in many in the profession, looking to find less hostile ways of resolving an agreement for clients. This includes the ‘one lawyer, two clients’ model called Resolution Together.
This is not to say that court proceedings won’t be the best option for some families. However, the potential advantages of the right format of NCDR for the right case are clear. The NCDR process can be quicker, cheaper, less adversarial, more flexible and with a greater degree of control for parties. By encouraging more parties into NCDR, this may also alleviate the pressure on the court system and allow cases within that system to be dealt with more quickly.
We anticipate that there will be additional scrutiny for solicitors and parties as to whether or not they have properly considered whether NCDR is appropriate in their case. While there will always be cases where some forms of NCDR may not be appropriate, such as those involving domestic abuse, we expect to see discussion as to what represents a ‘good reason’ for not engaging. If a party can’t show a good reason, then judges are now increasingly empowered to make costs orders against them.
If you would like to discuss these changes to the Family Procedure Rules or discuss the different methods of NCPR, please do contact our family team who are experienced in this area, including members who are trained in collaborative law.
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