‘To be or not to be (in court), That is the question’: Changes to the Family Procedure Rules

Private Law (Child Arrangements Programme (CAP))

29 April 2024

Amendments to the Family Procedure Rules (FPR), made by the Family Procedure (Amendment No 2) Rules 2023, have now taken full effect (as of 29th April 2024).

The main theme of the changes is to promote the early resolution of private family law disputes through non-court dispute resolution (NCDR).

 During a time of chronic delay in the court system, there is now a greater expectation on the courts, family lawyers, and individuals to use NCDR to resolve children (and financial) matters.

 Under the amendments, NCDR has been widened for the first time and is no longer limited to mediation. There is now a much wider definition: “non-court dispute resolution means 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” (FPR 2.3(1), emphasis added). As noted, this is not an exhaustive list.

Authorised family mediators will continue to conduct MIAMS (Mediation Information and Assessment Meetings), but they will now be expected to provide “information about other methods of non-court dispute resolution” alongside information about the principles processes and different models of mediation (FPR 3.9(2)(a)). The authorised mediator is required to indicate to those attending a MIAM which form/s of NCDR may be most suitable as a means of resolving the dispute, and why (FPR 3.9(2E)). The purpose of the MIAM is to supply information to individuals about the benefits of different methods of NCDR, as options for resolving disputes. If one party does not wish to engage, the applicant will still need to attend a MIAM.

Circumstances that qualify for MIAM exemption have been reduced and include domestic abuse, child protection concerns, urgency, previous MIAM attendance or NCDR attendance in the 4 months prior to making the application (FPR 3.8)).

Domestic “violence” is now referred to as “domestic abuse” and is given the same meaning as in the Domestic Abuse Act 2021 (FPR 2.3(1)), i.e. it includes physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse, psychological emotional or other abuse (whether a single incident or a course of conduct).

Once in litigation, the court has a duty to consider at every stage in the proceedings, whether NCDR is appropriate (FPR 3.3(1)). The court is likely to want to see genuine attempts to settle at every stage.

If required by the court, a party must now also file and serve form FM5 (‘statement of position on non-court dispute resolution). This is a new form in which the party completing it must set out their views on using NCDR as a means of resolving matters raised in the proceedings (FPR 3.3(1A)).

If an applicant claims a MIAM exemption in form FM1, the court will issue proceedings but will inquire into the exemption claimed (FPR 3.10(1)). In private law proceedings, the court must make this enquiry at the gatekeeping stage (FPR 3.10(1A)). Importantly, the court may also review any supporting evidence to ensure that the MIAM exemption was validly claimed or consider whether any validly claimed exemption is still applicable.  The required evidence for each exemption is set out at pages 3 to 8 of form FM1. For example, if the applicant claims to have attended a MIAM or NCDR within the past 4 months, that attendance must relate to the same or substantially the same dispute and the applicant must provide written confirmation from the NCDR provider of the applicant’s attendance. In cases where the domestic abuse exemption is claimed, form FM1 sets out a long list of possible supporting evidence which includes: a domestic abuse protection notice; evidence of a recent conviction for a domestic abuse offence; evidence that a prospective party has been arrested for or received a caution for a relevant domestic abuse offence; a relevant protective injunction; a letter from an organisation providing domestic abuse support services. Ultimately it will be for the court to decide whether the supporting evidence provided is sufficient. If the court decides the MIAM exemption was not validly claimed, or the exemption no longer applies, it will direct the applicant or parties to attend the MIAM and, if necessary, adjourn the proceedings to enable the MIAM to take place (FPR 3.10(2)).

A particularly noteworthy change is FPR 3.4. Previously the court could only adjourn for the parties to explore NCDR if the parties agreed to this taking place. From 29th April 2024 this may now take place on an application or of the court’s own initiative. Agreement is therefore no longer required if the court itself considers NCDR is appropriate and decides to adjourn proceedings to allow the parties to obtain information and advice about, and consider using, NCDR (FPR 3.4(1A) & (2)).

The court may give directions regarding NCDR at any time during the proceedings (FPR 3.4(2A)). In proceedings where a dispute arises between parents and/or families about arrangements concerning children, the court may give directions at any time following receipt of the safeguarding letter or safeguarding report (FPR 3.4(2B)).

It is very possible that the courts will start to utilise the gaps between hearings to encourage the parties to look to NCDR during the intervening period.In addition to the new and amended court forms discussed above, amendments have also been made to form C100 in respect of child arrangements (and to financial remedy forms A, A1 & B).

While courts now have the power to encourage NCDR to take place, it is not an instruction and parties cannot be forced to attend (albeit we may anticipate ‘forceful’ encouragement from some members of the judiciary).

The amendments clearly envisage and encourage a shift of mindset for all, including the judiciary, and we are therefore likely to see a change in judicial approach once the changes embed and become the norm. The desire by some to “have one’s day in court” at any cost may no longer be allowed to continue. To be or not to be (in court) may be the question, but whether the answer to our overcrowded family courts lies in NCDR remains to be seen.

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