Family judges don’t have it easy. When the combined wisdom of a thousand cases leads to the identification of a particular problem, what are they to do about it? Publishing a judgment provides the most obvious and immediate answer. But often such pleas resemble the proverbial pebble dropped into the bottomless well, a hopeful judiciary cupping an ear downwards in the hope of detecting a reassuring splash but there comes back only the sound of silence.

In an earlier article in these pages published 2 years ago,1 we returned to Mostyn J’s exhortations about excessive costs in J v J [2014] EWHC 3654 (Fam) at [11], that although ‘the mantra “something must be done” is repeated time and again, nothing ever is’. And later at [13]: ‘the time has come when the law-makers in this country, whether they are legislators or judges, must stop saying something must be done and actually do something’.

Much the same could have been said about efforts to embed non-court dispute resolution (NCDR) since the advent of the Family Procedure Rules (FPR) in 2010. By Part 3, the court has been enjoined to ‘consider’ NCDR, as well as to adjourn proceedings for the parties to obtain ‘information and advice about NCDR’ if thought appropriate and/or in favour of substantive NCDR ‘where the parties agree’.

Plenty was written and said about the efficacy of these provisions in the ensuing years, not much of it positive and with an enduring sense that this was a missed opportunity. Part 3 just wasn’t really a consideration when it came to case management. As the report of the Family Solutions Group What about me? put it in November 2020 ‘Concern has been expressed within our discussions and the wider [working group] that the courts are not actively case managing in accordance with Part 3 of the FPR, and opportunities to resolve cases out of court are thus lost’.2 The court’s general case management power in FPR 4.1(3)(c) to adjourn a hearing was also rarely (if ever) used to encourage parties to attend NCDR.

Emphatically though, something has now been done. Practitioners could hardly fail to have noticed the blizzard of commentary that started in December 2023 with Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416, introduced to a family law audience shortly afterwards via Knowles J’s decision in X v Y (Financial Remedy: Non-Court Dispute Resolution) [2024] EWHC 538 (Fam).

Further developments

Those cases having established the proposition that, in the right case, the civil courts can: (1) order the parties to engage in NCDR; and/or (2) stay the proceedings to allow for NCDR to take place, we had only to wait a few weeks more for the entry into force of the Family Procedure (Amendments No 2) Rules 2023 (SI 2023/1324) by which the court gained new powers to:

(1) ‘encourage’ NCDR within natural gaps in the court timetable, whether the parties agree or not;3

(2) require parties to set out their views on using NCDR in Form FM5;4 and

(3) in financial remedy cases, consider whether a failure, without good reason, to engage in NCDR should impact on who pays the costs of the litigation.5

A more muscular approach to implementing Part 3 was immediately evident in NA v LA [2024] EWFC 113, where Nicholas Allen KC (sitting as a Deputy High Court Judge) stayed the financial remedy application and refused to list a First Appointment, further directing a joint letter in 6 weeks’ time setting out what engagement there had been with NCDR and proposals for the way ahead. The case is also notable for Peel J’s exchange with the wife’s leading counsel at an earlier hearing, in which he said ‘I know it is a culture shift, but all lawyers and judges must get into our heads that it is not simply a case of disclosure before we contemplate anything. Non court dispute resolution must be considered which can embrace disclosure ...’.

And then, only a week later at the end of May 2024, came the comprehensive code set out at FPR PD 9A, in the shape of the Pre-application Protocol. There is no substitute for reading the whole thing (and it is not long) but here are some highlights from the Summary:

• ‘Before coming to court, unless there are safety concerns or other good reasons not to do so, the court will expect parties to have attended at least one form of NCDR’ (para 2);
• ‘If the parties have not attended a form of NCDR, the court may decline to commence the court timetable or suspend the court timetable so that the parties may attend a form of NCDR. The court will also take into account any failure by a party to attend a MIAM or form of NCDR when considering the question of costs […]’ (para 5);
• ‘Before starting court proceedings, the parties should attempt, where possible, voluntary financial disclosure and negotiation. Any disclosure must be full, honest and open’ (para 7). Form E should be used (para 8).

Subsequently, in HJB v WJB (financial remedies) (separation agreement – application to show cause) [2024] EWFC 187, HHJ Vincent (sitting as a Deputy High Court Judge), having determined as a preliminary issue that a separation agreement reached between the parties would be ‘presumptively dispositive’ when the court came to consider the s 25 factors, said:

‘[125] The parties will need some time to reflect on the decision and consider directions. In accordance with the changes to the Family Procedure Rules Part 3, Practice Direction 3A and Part 28 of the Family Procedure Rules, the Court will be seeking to focus the parties’ minds on the potential for non-court dispute resolution of remaining issues between them as a next step and before further costs are expended in this litigation.’

In terms of the court’s expectations, so far so clear. But where are we in terms of the cultural shift referenced by Peel J? How far have we come and how worried should we be about the propensity to slip back into old habits as the lustre wears off the amended rules and the Pre-application Protocol? Will this iteration of Part 3 succeed where the old one failed? And what is the future direction of travel?

What has been the response from practitioners?

Somewhat in the manner of Family Fortunes, we’ve asked colleagues how the new rules are bedding down. Obviously this is anecdotal rather than scientific, and we accept without hesitation that the sample size is tiny. Moreover, we don’t have any data to shed light on how many cases are avoiding litigation altogether thanks to NCDR, which remains its central ambition. But the responses we’ve received from family lawyers as to how the rules are affecting existing cases are varied and interesting nonetheless and include:

• an example of a case where a party had not filed an FM5 before the First Appointment and was unable to inform the court of any prior attempts to engage in NCDR. The judge adjourned the case, with liberty to restore after the parties had engaged either in a private FDR or another form of NCDR;
• a sense that clients are not rushing to mediate but are happier to do so where also supported by their solicitors or counsel;
• an increased number of proposals to adjourn court hearings to try mediation on terms they arbitrate afterwards if need be;
• greater uptake of arbitration generally with judges pressing this in particular;
• a noticeable shift in advice from counsel to clients in favour of making proposals for NCDR, in order to avoid criticism from judges and/or costs orders;
• ‘A real sense of wanting to make sure that we’re not on the wrong side of a reported decision where a judge is looking to make an example … I think it’s more than just paying lip service to NCDR (in the way that often MIAMs are), and it is having a meaningful impact on strategy and how cases are being run.’;
• dishearteningly, several barrister respondents considered that the new rules were being ‘completely ignored and the District Judges I’ve been before have not been remotely interested in taking it as a point when raised.’;
• successful use of the rules to pressure the other side to agree an earlier private FDR when delay suited the other side. Similarly, one respondent had ‘Not had a single judge raise it or be bothered about it but useful to put pressure on opponents.’;
• ‘I had a case where the judge adjourned as per the new rules even though one party opposed. Other judges have said “we will list and if you agree in parallel you can apply to vacate”.’

Cases in which domestic abuse plays a part raise their own particular issues. This article comes too soon to take into account a report from Resolution due on 8 October 2024 looking into all aspects of domestic abuse within financial proceedings, including NCDR. Particular concerns have been raised about the extent to which perpetrators might potentially be handed an advantage if parties are compelled into NCDR. Striking the right balance between mitigating such difficulties but without undermining the core features of the new rules is plainly delicate.

Meanwhile, our civil colleagues have also been busy. Following Churchill, the Civil Procedure Rule Committee launched its own consultation in April 2024 on possible changes to the Civil Procedure Rules 1998 (SI 1998/3132) (CPR) as a result, the fruits of which are to be found in the Civil Procedure (Amendment No 3) Rules 2024 (SI 2024/839) and come into force on 1 October 2024. These go further than the recent revisions to the FPR in providing for:

• amendment to CPR 1.1 (the overriding objective) to make specific reference to the court and the parties using and promoting alternative dispute resolution (ADR) when dealing with a case justly and at a proportionate cost;
• amendment to CPR 1.4 (court’s duty to manage cases) to clarify that the court can order and not merely just encourage parties to use an ADR procedure as part of its active case management duties;
• amendment to CPR 3.1 (the court’s general powers of management) to confirm that the court has the power to order parties to participate in ADR.

It remains to be seen whether any of this makes its way across into the FPR in time, but it has often been the case that where civil procedure leads family procedure follows and the direction of travel across jurisdictions seems clear. NCDR is likely to become ever more woven into the procedural fabric.

1 October 2024 will also see an amendment to CPR 44.2 (court’s discretion as to costs) at sub-rule (5)(e) so the conduct of the parties to which the court will have regard in deciding what order (if any) to make about costs will include ‘whether a party failed to comply with an order for alternative dispute resolution, or unreasonably failed to engage in alternative dispute resolution’.

This amendment – which echoes the similar amendment to FPR 28.3(7) referred to above but which only applies to financial remedy proceedings – has the effect of bringing other family proceedings (Children Act 1989, Schedule 1 applications, interim applications and appeals) and applications under the Trusts of Land and Appointment of Trustees Act 1996 and the Inheritance (Provision for Families and Dependants) Act 1975 into line.

And that is without taking into account the future impact of the Online Procedure Rule Committee (OPRC). The stated intention of the (then) Government in its OPRC policy statement was ‘that people will be able to easily use our online services to resolve their disputes which would, in some cases, alleviate the need to go to court.’ One of the key barriers to NCDR is public awareness. The more options for families, the better, but that mantra only works if they know what options are out there.

What more can be done?

But back to the here and now. The last year has seen changes which are intended to be transformative but of a scope and breadth which will inevitably take time to bed down: cultural shifts do not happen overnight and the anecdotal responses set out above suggest there is no room for complacency.

If the recent reforms are to reach their full potential, there will inevitably have to be robust top-down implementation pour encourager les autres. Courts will have to develop the reflex, rather than simply being attuned to the possibility, of enquiring into what steps have been taken to avoid a particular hearing and stand ready to adjourn and/or make adverse costs orders where appropriate. Readers will have their own experiences, but the responses we have collated to date suggest that this remains a rarity.

We would respectfully suggest there needs to be sufficient carrot to go with the stick. Making the argument that ‘you should do NCDR now because otherwise you might be on the hook for costs’ seems likely to be effective in driving basic take up but less so in promoting wholehearted participation. For that to happen, the incentives need to be better. We would make two pragmatic suggestions, within the scope of the existing rules:

(1) Financial disclosure: where the parties have exchanged Forms E (or E1s or E2s) pre-application, as should invariably now be the case following introduction of the Protocol (at para 35) should there be a stronger working assumption that there will be no requirement to file further Forms E in the event of later court proceedings unless either party can point to a material change in a party’s financial position that requires documentation and/or an early explanation? Exchanging multiple Forms E is unnecessary, burdensome, confusing and expensive and should be avoided where possible (particularly in light of the emphasis on the quality of pre-application disclosure at paras 32–34 of the Protocol). Financial disclosure is almost invariably updated during the course of proceedings in any event.

(2) FDRs: in the right cases, might courts be prepared to reconsider the necessity for an FDR? The current position as set out by FPR 9.15(4) is that, for all standard procedure cases, ‘the court must direct that the case be referred for an FDR appointment unless … there are exceptional reasons which make a referral to an FDR appointment inappropriate’. No one seriously doubts the basic utility of the FDR or its historic contribution to settlement rates, but a criterion of exceptionality seems to us to put the bar too high, these days. Doubtless such a test was fair enough at a time when NCDR was less effectively prioritised. But if separating families, doggedly adhering to the Protocol (dutifully supplied them by their advisers pursuant to para 4) have done their best in an NCDR process, and can demonstrate that fact to the court’s satisfaction, then it is difficult to see how obliging an FDR will help either them or the court lists. Put another way, the court already dispenses with a court-based FDR where the parties have elected for that form of NCDR known as a private FDR. Why should it not also do so where other forms of NCDR are preferred?

The fundamental changes to the NCDR landscape can only be the end of the beginning. Grander references to tectonic plates realigning and seismic shifts may have to wait a little longer…