Amid major delays at the Family Court — with many cases being adjourned at short notice — changes to the Family Procedure Rules were introduced in England and Wales on Monday 29 April 2024.
Here, Debbie Heald — a Resolution-accredited specialist in private children matters and complex financial remedies — explains what the changes may mean for family law matters.
Why were changes needed?
The Family Procedure Rules govern procedures in family law cases. Initially launched in 2010, the rules set out the processes for parties, practitioners and the Family Court.
Over recent years, there has been much concern about the Family Court becoming increasingly overwhelmed. At present, due to the sheer volume of applications, the Court is simply unable to properly service all cases. A disproportionately high number of applications are being made, many by litigants in-person — and unfortunately, alternatives to Court aren’t being fully explored.
In 2014, attendance at a Mediation Information Assessment Meeting (MIAM) was made compulsory prior to an application being made to the Court (unless an exemption applied). However, in reality this failed to go far enough to alleviate the pressures on the Court system — with many prospective applicants attending a MIAM as a mere box-ticking exercise or seeking to rely on an exemption.
What are the changes?
The main amendments to the rules are to:
- widen the definition of Non-Court Dispute Resolution (NCDR)
- place a requirement on the parties to actively engage in NCDR and evidence the same
- place a party who unreasonably refuses to engage in NCDR at risk of a costs order.
What constitutes Non-Court Dispute Resolution?
NCDR means using a third party to help resolve a dispute outside of court. While historically the main focus of alternative dispute resolution has been mediation, the definition has since been widened. Although not exhaustive, accepted methods of NCDR now include arbitration, collaborative law and early neutral evaluation.
The changes are intended to provide all existing Court users with a variety of NCDR options and make it more difficult for parties to argue that their refusal to engage was reasonable. It’s also likely that Magistrates and Judges will more carefully scrutinise the approach of the parties and their representatives prior to issuing an application — and if they aren’t satisfied, consider whether a form of NCDR should be attempted prior to the progression of the proceedings.
What evidence is needed?
There is now a requirement for parties to evidence their attendance at and engagement in a form of NCDR by lodging a new form FM5.
This must be lodged by both parties at least seven working days before the first hearing in an application. It will no longer be sufficient to simply have attended a MIAM. Parties must set out their position to the Court, indicating why NCDR isn’t an appropriate method to resolve the dispute or — in the alternative — why NCDR hasn’t been successful in resolving the dispute.
Will the Court make costs orders?
Parties who fail to engage in NCDR will likely be heavily criticised by the Court if they can’t justify their refusal to do so.
In addition, the Family Procedure Rules have been amended to specifically state that a failure to engage without good reason may lead to a departure from the usual ‘no order as to costs’ principle in family cases.
With this in mind, it’s clear that parties are now at greater risk of costs orders being made against them — although the extent to which costs orders will be made is yet to be seen in practice.
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