New Rules Guide Separating Couples Away From Court

16 Apr 2024 | Lisa Pepper
osbornes hampstead

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New guidance, if properly applied, could effectively compel couples to try anything but court as a way to resolve their financial and other disputes.

Since 2010, judges have had both a power and a duty to actively promote ways for families to solve their disagreements without going to court. Known as non-court dispute resolution or NCDR, the options include approaches like mediation or Early Neutral Evaluation – where an impartial evaluator is appointed to assess the merits of the case. These options are usually much quicker and cheaper than going to court.

Despite this, courts haven’t really pushed the non-court methods much. One of the sticking points is that no one can be forced to negotiate, as it is a voluntary process. If one party doesn’t want to engage with mediation, for example, then the whole process falls down.

Now, thanks to an important court case and some new procedural rules, things are about to change. Going forward, we may see the courts compelling parties to attempt to resolve their differences in friendlier, less adversarial ways—even if the parties are not necessarily keen to do so.

The Churchill case—litigation as a last resort

The November 2023 case of Churchill v Merthyr Tydfil CBC confirmed that, in some circumstances, the court can and should tell the parties to go away and try to resolve their dispute out of court, and should Stay (pause) court proceedings while this happens.

This is different to the usual way of doing things, where it’s mostly up to the parties themselves to decide whether or not they want to try NCDR.

The case was a Japanese knotweed dispute in the civil courts. Mr Churchill sought compensation for the reduction in his property’s value caused by knotweed growing on neighbouring land owned by the local council. The council denied liability, but referred Mr Churchill to its internal corporate complaints procedure as a way to resolve the dispute. Mr Churchill refused to participate, insisting instead on going straight to court proceedings.

Judges in the Court of Appeal were unimpressed with Mr Churchill’s behaviour. They made it clear that litigants should always consider and try NCDR, or risk the court forcing it anyway. The parties still have the right to return to court if NCDR fails, but a litigant may have cost orders made against them if they obstruct the NCDR process.

Significant changes in family law proceedings

While Churchill is a civil court case, its principles will soon enter the Judges’ toolkit in the Family Courts. In April 2024, the Family Procedure (Amendment No 2) Rules 2023 will come into force, and they will make some fairly radical changes to the way that family proceedings are handled.

1. Expanded definition of NCDR

Most people are familiar with mediation as a form of Non-Court Dispute Resolution (‘NCDR’). However, from April, the definition of NCDR will expand significantly to include:

For some separating families, particularly in cases that involve domestic abuse and child protection, mediation may not be the most appropriate course of action. Expanding the definition of NCDR should give families access to a wider range of options that are suitable for their individual circumstances.

2. More emphasis on pre-court actions

The second important change relates to MIAMs, or Mediation Information and Assessment Meetings. Anyone wanting to apply to court for certain family law proceedings has to attend a mediation session with a specially qualified family mediator first, unless an exemption applies, and that has been the situation since 2011.

From April, MIAM providers must be appraised of the full smorgasbord of NCDR options, and not just mediation. Essentially, they “triage” the situation and discuss with the parties which type of NCDR would be best suited to them and why. The court will timetable proceedings to allow sufficient time for the appropriate NCDR to take place, regardless of what the parties feel about the matter.

The rules will also modify certain exemptions from the requirement to attend a MIAM. From April, most people will have to engage with MIAM sessions, with the exceptions of cases involving abuse, safety concerns, or where an urgent application is needed.

3. Court can impose sanctions for non-compliance

The final major change is the introduction of a new court procedure. Essentially, it’s a form where the parties set out their views on using NCDR as a means of resolving the dispute. The court can require the parties to complete this form which must then be filed with the court and served on the other side. Sharing the form will give the court greater visibility into whether the parties are thinking and talking to each other about NCDR (and of course puts pressure on them to give it serious consideration).

Here’s where the new rules pack a punch: if someone does not make a genuine attempt to engage in NCDR, the court can take this into account when managing the case and making an order for costs.

Currently, the starting point in financial dispute cases is no order for costs. The new rules send a strong signal to parties that they should take NCDR very seriously indeed if they want to avoid cost penalties.

So, what is the message?

While the new rules stop short of mandating NCDR, they definitely tip the scales in its favour. From now on, you really must try to agree matters out of court first or risk the court penalising you for avoiding NCDR. This is consistent with what most people would think should happen anyway—that going to court ought to be a last resort.

This tilt towards NCDR should benefit everyone involved in family court proceedings. The latest data from the Ministry of Justice shows it takes an average of 45 weeks for a family case to conclude through the courts. It’s hoped this time frame will reduce significantly once NCDR removes cases that, frankly, should never see the inside of a courtroom.

For the couples involved in a dispute, it should become much easier to access a wider variety of family law professionals, away from the courts, to support them through this difficult time in their lives in a way that is right for them and their children. All in all, the new landscape should promote a faster, cheaper and more amicable resolution to family law matters.

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