Is the Family Court about to get tough about alternatives to court?

New court rules are about to be introduced in the Family Court to make it harder for people to avoid using alternatives to court.

The Family Court has been overwhelmed by the number of cases that it has to deal with for years. Even before the Covid pandemic, it was struggling; the President of the Family Division, (i.e. the senior family court judge), Sir Andrew Macfarlane described its workload as like running up the down escalator. Since then, matters have only got worse since. In addition to the challenges and delays caused by COVID, there have been years of underinvestment in the family justice system, as well as the removal of legal aid in most family law cases. Laypeople might assume that less legal aid might mean fewer court cases, but on the contrary, it simply led to more people representing themselves and commencing court applications that could have been resolved using alternatives to court (also known as non-court dispute resolution or NCDR).

One of the effects of too many cases in an under-resourced court is that applications can now take many months to run their course. Anywhere from 6 months to 2 years is not unusual, sometimes longer, despite s.1 (2) Children Act 1989 (which states that “In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child”) and Article 6 of the European Convention of Human Rights (which states that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”).

These alternatives to court are what I like to call the four ‘SHUNs; negotiaSHUN, mediatiaSHUN, collaboraSHUn and arbitraSHUN. These options are often far more suitable, swifter and less expensive than the deadly fifth ‘SHUN: litigaSHUN. (i.e. going to court).

The Family Court has been trying to encourage greater use of these alternatives (more accurately called negotiation, family mediation, collaborative law, and family arbitration) for years.

People who wish to commence an application in the Family Court for a financial remedy order in a divorce or an application about children etc. usually have to first attend a Mediation Information and Assessment Meeting (MIAM) with a mediator where they are provided with information about mediation and the other alternatives to court. If this prospective applicant wants to then mediate, the prospective respondent is invited to attend a MIAM and if they agree that mediation is the way forward, mediation can get underway. If either of them does not wish to mediate or if the prospective respondent simply ignores or refuses the invitation  to a MIAM), then then the application to the court can go ahead.

Th mediator will also assess whether the case is suitable for mediation; there are some cases which should only ever be resolved by the court.

There are various exemptions to the need to attend a MIAM (e.g. where there has been domestic violence or abuse, or where an application needs to be commenced due to an emergency, and so on).

MIAMs have been required for a while now. In the early days, a failure to attend a MIAM was often brushed aside. The court would issue the application, despite the failure to attend a MIAM and the court rarely took issue with non-attendance. The court forms hardly helped; e.g. a paper C100 application for a child arrangements order has a page about MIAMs which asks the applicant to sign it confirming MIAM attendance, but also says signing it isn’t compulsory.

However, as time went by, the court became tougher about it. The court would decline to issue applications where the MIAM has not taken place. In cases where the applicant had tried to avoid attending by, e.g. falsely claiming it was an emergency, the court would have none of it and would adjourn the application until a MIAM had taken place. (I often find that applicant’s idea of what is an emergency can differ radically from the court’s idea of an emergency. For example, a parent might be making the application because the other parent has stopped them from spending time with their child; the  applicant may feel that it is an emergency, but the court will usually take the view that it is a typical case and the applicant has to take their turn like everyone else.)

MIAMs are far from perfect. There have been concerns that some family mediators, (particularly those mediators who aren’t also legally qualified solicitors and barristers) may have only been giving information about mediation and not providing information about the other alternatives of negotiation, collaborative law and arbitration).

It is far too easy for the prospective respondent to a court application to simply refuse to attend the MIAM. Even if they do attend, there is no way to compel them to mediate. The government recently abandoned an ill-considered plan to compel parties to mediate, something which the legal profession has taken to calling “mandation”, (a word that I do not believe has ever existed before). For an explanation of why compulsory mediation as proposed by the government is not a good idea, read my blog here.

The court also has the power to adjourn court proceedings in order to allow the parties to use an alternative to court, (which would be mediation or arbitration. The collaborative process would not be suitable where there are court proceedings already underway, and negotiation has always been part of the litigation process.) However, the court’s power to do this can only be exercised where both parties consent to it, as otherwise it was felt that to compel them to do so would breach their right to a fair trial. Judicial options so about that differed and in 2014 Mr Justice Mostyn made it clear in a leading judgment of Mann v Mann that the rule needed to be changed.

In April 2024, the Family Procedure Rules will be amended to strengthen the position of alternatives to court (which it calls NCDR) so that it is now defined 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’.

The court will also now be able to order the 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’.

It will no longer be necessary for the parties to consent to an adjournment. The court’s position is now that compulsory NCDR that is ‘not disproportionately onerous and does not foreclose the parties’ effective access to the court’ is lawful. unlike the civil courts, the Family Court cannot order parties to use NCDR without their consent, but it can stay their application against their wishes to encourage them to do so.

In financial cases, a failure to engage in NCDR without good reason may justify the court departing from the general rule that each party pays their own legal fees and it may make orders for costs against parties. (This threat of costs will not apply in children cases, where costs orders are exceptionally rare as they would not normally be appropriate).

The non-domestic violence MIAM exemptions enabling protective applicants from attending a  MIAM are also being tightened. However, as far as I am aware, there are no penalties for a prospective respondent who fails to attend a MIAM when invited to do so.

These steps are to be welcomed. They don’t go as far as the mandation of mediation that was being proposed (and  recently abandoned) by the government, but that plan was poorly conceived.

We are being warned that the new rules will be applied firmly by the court. Lip service to the rules will not suffice. There will be consequences if we don’t comply.

Will it make a difference? Most family law solicitors would already consider alternatives to the court before commencing an application. I consider alternatives to court in every case. (Yes, even in cases where there has been serious domestic violence or abuse, if only to then swiftly discount it as being unsuitable).

What is more important is to see how it effects cases where one or both parties are not legally represented. Litigants in person frequently ignore the befits of NCDR and want to have their day in court, believing perhaps naively that they will be better off after a lengthy and bruising court process. Many of them have little idea of what is really involved as they have often failed to seek legal advice beforehand.

It remains to be seen whether the new rules will make a significant impact on the court’s workload.

2 March 2024

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