Time to have your say!
Published: 05/04/2023 09:20
The “Early resolution of private family law arrangements” consultation is currently open for comments until 25 May 2023. It is an important opportunity to respond to possible rule changes to aid promotion of early and out of court resolution in money, and in private law children cases too.
The proposed amendments to the existing Family Procedural Rules (FPR) and supporting Practice Directions are intended to strengthen the existing provisions around attending Mediation Information and Assessment Meetings (“MIAMS”) and to encourage people to attend mediation and explore other forms of non-court dispute resolution (“NCDR”).
The proposals come off the back of the significant pressure that the Family Court is facing, not helped by the Covid pandemic which has resulted in growing case backlogs. I am sure for those reading this blog it will not come as a surprise as your cases are relisted into the distant future having been vacated at the last minute. Other recent measures such as the accelerated First Appointment process will no doubt help ease some of the pressure, but ultimately the focus is on not having to use the court wherever possible.
So, what is proposed that we as practitioners can use to aid settlement and keep matters away from court wherever it is safe and practicable to do so? There has been much discussion around firming up the MIAM process and making it more robust and fit for purpose. There are some proposed amendments to provide practical assistance to the court, including that, where circumstances change and exemption is no longer an issue, the parties are directed to attend a MIAM. These changes, from my perspective, are welcomed, to emphasise the need to use the MIAM as a real opportunity for settlement rather than the gateway to the court.
What is of particular interest for finance practitioners is that there is a proposed amendment to the FPR to provide that “the court may adjourn proceedings when the court considers that the parties would benefit from an attempt at NCDR”. It is said that this would allow the court to “strongly encourage” but not order the parties to attempt NCDR when the court considers that the parties may be able to reach an agreement outside of court. There are some helpful discussion points raised in relation to this proposal, including the effect on the court timetable, and the frontloading of work to get to the court door in financial remedy proceedings (pp.12/13).
It is important to note that there is further work being undertaken to consider how to encourage mediation and other forms of NCDR where it is safe and appropriate to do so, and therefore this current consultation does not include proposals to mandate NCDR. In my opinion, it is imperative that we ensure NCDR is a safe space for parties faced with a dispute at one of the most difficult times of their lives.
Costs also feature within this document and many of us will have grappled, likely more often than before, with costs since OG v AG  EWFC 52 (in particular). I am regularly asked to speak on the topic of costs in financial remedy proceedings, a real change since I started out 10 years ago in pupillage. The Committee proposes amendments to include an express provision in the rules for the court to “factor in as a matter of “conduct” any failure to undertake a MIAM if parties are ordered to attend a MIAM post-application, when considering costs orders against a given party”. It is proposed that the court would retain judicial discretion. In the same vein it is proposed that where one party has not attempted NCDR and the court has deemed the case suitable then again, the court should factor this in when considering “conduct”. The Committee did note that there may be practical difficulties with this, and the potential for satellite litigation.
There are a series of questions posed at the end of the consultation, and it is important that as practitioners we are able to help shape this debate and ensure that any proposed amendments are fit for purpose within our practices and reflect the issues that we see our clients and the court face on a daily basis. So please do check out the consultation and have your say!