With effect from 29th April 2024, the Family Procedure Rules have been amended to promote alternative methods of resolving financial and private children disputes, other than through the court.
The background to this piece of legislation is that there is considered scope to extend non-confrontational methods by asking the parties to more formally engage with such processes, rather than defaulting to using the court. The terminology in the Rules refers to “non-court dispute resolution” (NCDR), which in addition to mediation, includes arbitration, evaluation by a neutral third party (such as private Financial Dispute Resolution procedures) and collaborative law.
Until introduction of the new rules, it was possible for either party contemplating litigation through the family courts, to attend a consultation with an accredited mediator, this being the Mediation and Information Meeting (MIAM). In the event that a party did not wish to proceed with the voluntary procedure of full mediation, they could obtain a MIAM certificate and then apply to court for a determination of their case. Under the new rules, the certification criteria will be more stringent. Mediators will be required to inform their clients about the various NCDR options available with supporting documentation, to ensure they are fully informed.
Certain exemptions from the requirement to have an MIAM certificate will remain, allowing parties to proceed directly to court proceedings. These naturally include cases of domestic violence, though the terminology is broadened to ‘domestic abuse’ in line with the Domestic Abuse Act 2021. Furthermore, the court will accept such cases on the basis of the applicant’s ‘significant financial hardship’ as opposed to ‘unreasonable hardship.’
One of the key changes is that previously the court could adjourn court proceedings in order to explore non-court options with a view to settlement, if the parties were in agreement with this method. Instead, the court may now adjourn the proceedings, in order to encourage NCDR simply “where the timetabling allows sufficient time for these steps to be taken.” In other words, the parties need not be in agreement with an adjournment.
As a deterrent to parties failing to engage in NCDR without good reason, the new rules provide that there could be cost consequences, therefore moving away from the usual initial position of ‘no order as to costs.’
During the court process, it is now a requirement that parties must file and serve on eachother a new form, (FM5), within seven working days before the first hearing. The form specifically asks parties to indicate what type of NCDR they have attended and explain why that method of resolution was not suitable in their particular case, verified with a statement of truth.
The revised Family Procedure Rules should represent a significant departure from the former use of MIAM certificates, moving parties’ conversations towards out of court settlements where possible. The emphasis will be on parties making genuine, fully considered, early attempts to fairly resolve matters without resorting to court proceedings. Time will tell whether these measures have any significant impact on court backlogs and aid resolution of issues.
Josephine Duchenne is a solicitor specialising in Family Law.
