The Ministry of Justice (MoJ) has announced its proposals to encourage the use of alternative dispute resolution methods, with the goal of providing separating families with faster resolutions to their cases and easing the significant pressure on the family justice system. This article provides an overview of the changes, and explores the different options open to separating couples who wish to avoid court.
In 2019, the President of the Family Division, Sir Andrew McFarlane, warned that those in the family courts were effectively ‘running flat-out up a down escalator’ due to the sheer volume of cases. The COVID-19 pandemic then brought unprecedented strain, with many cases being adjourned or delayed, consequently overwhelming the court system further.
In 2022, Sir Andrew McFarlane suggested that it would likely take three years for the family courts to return to pre-pandemic levels (the same inundated levels described above), demonstrating the current intense pressure on the court system. In 2022 alone, there were more than 60,000 private law children and contested financial cases in the courts, likely at significant cost, time and stress to the parties involved. It is evident that a sea-change is needed, and fast, to relieve the pressure on the family courts and bring about swifter resolutions for families in conflict.
The consultation
The stark number of parents and separating couples who were unable to resolve their issues without court involvement prompted a government-led consultation, entitled the ‘Private Family Law Early Resolution Consultation’, which began in March last year.
During the consultation, the MoJ said, ‘many respondents to our Consultation considered that the lack of free, publicly funded, family law legal advice was a barrier to early dispute resolution’. Following the withdrawal of legal aid funding in private family matters more than 10 years ago, it comes as no surprise that the lack of financial support to obtain legal advice discourages and often prevents parents and/or separating couples from seeking early advice on their options for resolving disputes.
In March 2021, the government introduced the Family Mediation Voucher Scheme, which provided a contribution of up to £500 towards mediation costs. The MoJ says this has helped nearly 25,000 families resolve their issues without court involvement. The success of this scheme has encouraged the government to consider additional solutions to encourage parties in exploring non-court dispute resolution options.
The government’s response
On 26 January 2024, the government published its response to the Private Family Law Early Resolution Consultation.
Of most significance, the response announces plans to launch a pilot of early legal advice for separating couples. This pilot aims to demonstrate the benefits of legal advice in supporting families to resolve their disputes, and in considering their options for doing so. This is important as less than 20% of cases in the family court system involve parties being represented by solicitors on both sides. Court proceedings can be an alien process for litigants in person, who often have not had the opportunity to seek advice on their options for resolving disputes outside of court, or are not equipped with the information on how or where they could engage in such options.
Further, the government has confirmed that it will not be continuing with the proposals for mandatory mediation before an application can be made to court. This has attracted a positive reaction, as although mediation can be very successful and effective for a lot of parents and separating couples, it is not appropriate in every case.
In particular, mandatory mediation poses risks for victims of domestic abuse feeling compelled to mediate with their abuser with no alternative option, which could perpetuate the abuse. It was on this basis that the government decided the proposed safeguards for domestic abuse victims did not go far enough to protect them, and therefore compulsory mediation was abandoned.
Although a change to the law to introduce mandatory mediation will not be made at this time, the requirement for parties to attend a MIAM (mediation information assessment meeting) remains, and some additional measures have been proposed to facilitate the effectiveness of such meetings. For example, there will be fewer MIAM exemptions to reflect the modern ways of working, including online and remote possibilities; there will be more effective and stringent enforcement of the requirement to attend a MIAM at a much earlier stage of the court process; and the courts are to continue to encourage parties to engage in alternative dispute resolution methods if deemed suitable at any stage in the proceedings.
The government’s response has largely been welcomed by family lawyers, and Sir Andrew McFarlane said: ‘If implemented, the range of initiatives published today are likely to be of genuine benefit in assisting many separating parents to resolve disputes over the care of their children promptly and without going to the Family Court.’
Changes to the Family Procedure Rules
Alongside the MoJ’s proposals to encourage the use of NCDR, from 29 April 2024 numerous changes to part 3 of the Family Procedure Rules will come into effect, which aim to bring immediate positive impact to the family justice system. These include:
- The widening of the definition of non-court dispute resolution – to include arbitration, evaluation by a neutral third party, and collaborative law. Previously, only mediation was named, which did not reflect the modern abundance of out-of-court services available.
- Changes to the MIAM process – MIAMs are often used as a ‘tick-box’ exercise to allow a party to issue court proceedings, which circumvents their purpose. Alongside tightening of the MIAM exemptions, MIAM providers will need to be appraised and advise upon all forms of non-court dispute resolution, not just mediation – which can be very successful for some parties, but is not ‘one size fits all’.
- Introduction of NCDR forms – each party will need to exchange a standard form setting out their views on using non-court dispute resolution prior to a financial hearing. The judge will then be in a position to consider whether there is good reason for the matter to be in court or if the parties need encouragement to explore other non-court options. Further, there is provision for the judge to make cost orders against parties for failure to attend non-court dispute resolution without good reason, which will likely have significant effects.
The aim of these changes is to ensure parties genuinely explore other non-court dispute resolution options before opting for court intervention, in the hope that this will relieve some pressure in the backlogged courts but also encourage more amicable solutions for parties.
With the government initiatives and changes to the Family Procedure Rules on the way, it is hoped that parents and separating couples will feel encouraged to consider out of court resolution options. This could not only release some of the pressure on the court system, but also reduce the conflict, time and costs parties face when resolving disputes.
Our non-court offering
At Penningtons Manches Cooper, we promote and actively encourage the use of non-court dispute resolution and only opt for court involvement as and when necessary.
Please visit our alternatives to court page to find out more about the bespoke solutions-based approaches the team offers to help resolve issues arising from separation, including mediation, collaborative law, and our brand new offering, One Couple One Lawyer.
We can guide you to select the approach that is most suited to you and your circumstances, so please do get in touch with a member of the team for an initial consultation.
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