Apr 24

Keeping (most) family law cases out of court

Written by Carmelita Ardren
Head of Family, Children and Divorce

DDI: 01423 724 639
M: 07854 312652
E: carmelita.ardren@raworths.co.uk

“…. Like running up the down escalator” – that is how the President of the Family Division, Sir Andrew McFarlane, described the workload of the Family Court in 2019.  Since then, the impact of the pandemic has compounded this, creating a perfect storm of delay and expense at one of the most difficult times of a person’s life – when going through divorce and separation.

We have long been firm advocates of finding alternative ways of resolving private family disputes, but steps are about to be taken in all private family law cases whether financial or in relation to children, to actively address whether parties have properly considered an alternative way of resolving family disputes.

Changes from 29 April 2024

From 29 April 2024, judges in all financial and private cases will be asking both parties to actively explain why Non-Court based Dispute Resolution (NCDR) is not suitable in their case.

The definition of NCDR has also now expanded to include Mediation, Collaborative Law, Early Neutral Evaluation and Arbitration. The Judges will have the power to adjourn any hearing to enable NCDR to take place, so whilst you cannot be “compelled” to attend alternative dispute resolution you will need to have a very good reason why not. Be warned, if a judge considers such reasons not to be sufficient, the party “unreasonably refusing” to attend may end up on the wrong side of a costs order and indeed the rules have been changed to reflect that.

What do the new rules mean in practice?

1. NCDR is not just mediation but a wider interpretation of keeping cases out of Court. Any party to a Court application will be required to attend a Mediation Information and Assessment Meeting where all options will be discussed. There will be some exemptions to attending this meeting to include cases where there has been domestic abuse or if the application is an emergency. This will no longer be a tick box exercise.
2. Any new proceedings are likely to be subject to gatekeeping at the point of issue to ensure that NCDR has been properly considered. If a party is unrepresented then they are likely to be sent a list of non-court-based alternatives if they haven’t considered it already.
3. At any stage in existing proceedings (even those issued prior to the 29th April) the Judge is likely to require an account of why NCDR remains inappropriate. Any correspondence (including solicitors’ letters) offering or rejecting NCDR can be produced to the Court.
4. The Family Court has been trying to encourage greater use of mediation for years, requiring the Applicant in any proceedings to attend a Mediation Information and Assessment Meeting prior to the issue. On those occasions if either party did not want to mediate or the prospective Respondent simply ignored or refused the invitation to mediate, then the application would still go ahead. While the new rules cannot mandate attendance at NCD, they do “encourage” attendance. If reasonable offers to attend are ignored or unreasonably refused then the normal rule, that each party pays their own costs, may not apply and the refusing party might end up paying not only their own costs but some of the costs for the other party too. The question now isn’t whether they can afford to pay for NCDR, but whether they can really afford to refuse.
5. But what about the right to a fair hearing? The new rules state that an adjournment of the hearing can take place where the timetable allows an opportunity for those steps to be taken. Given the delays in the present court system, it is unlikely that this will be a bar to an adjournment. In any event, the Courts have considered this in a number of recent cases and have determined that this power is to be exercised in a way that is proportionate and achieves the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.

Will it make a difference?

Most family lawyers will take the time at the outset of the case to discuss the alternatives to Court. In most cases, non-court-based solutions are far more likely to achieve a quicker and more tailored outcome at a much-reduced cost both financially and emotionally.

It is highly likely that the Courts will make an example of a litigated case for this to become part of the normal conversation for family solicitors predisposed to litigation. For us, we welcome the changes as enabling us to achieve better outcomes for those going through divorce and separation.

Contact Raworths Family Law team

Carmelita Ardren is Head of Family, Children and Divorce at Raworths in Harrogate. Carmelita is an Advanced Family Law specialist and has been recognised as a Leading Individual in Legal 500 UK 2024 and is Ranked Tier 1 in Chambers UK 2024.

carmelita.ardren@raworths.co.uk

Published on 26 April 2024