As the clock struck midnight on Monday, 29 April 2024, the Family Procedure (Amendment No 2) Rules 2023 (SI2023/1324) fully came into effect. The changes will attempt to encourage early, out of court resolution in private family law cases.
New rules, such as these, always cause a little flip flop in the stomachs of family lawyers nationwide. However, on this occasion, there is real cause for celebration. The new rules are easy for lawyers and the general public alike to understand. The aim of the new rules is to keep cases out of court, and encourage settlement at an early stage, giving you back some of the control that you sometimes lose once proceedings have been issued, due to delay, oversubscribed lists, and judicial unavailability.
The new rules expand the definition of non-court dispute resolution to include "mediation, arbitration, evaluation by a neutral third party (such as a private FDR process) and collaborative law". This definition is not limited in scope and other forms of negotiation may also be included.
At Mediation Information and Assessment Meeting (MIAM) stage, you will have the full range of non-court dispute resolution options explained to you. You will also be advised which of the options may be best suited to your particular case.
If you do issue court proceedings, the court will require you and the other party to file and serve a form, Form FM5, which sets out each of your "views on using non-court dispute resolution to resolve the matters raised in the proceedings".
Form FM5
For those who have tried non-court dispute resolution, the form requires you to explain why you are seeking a court order, despite having attended one form of non-court dispute resolution or another, and to outline why it was not the right way of resolving the outstanding disputes in your case. For those who have not tried, the form invites you to explain why.
The form also requests an explanation from you as to why you are entitled to an exemption from attending a MIAM. You cannot simply tick a box exempting you from non-court dispute resolution anymore. You must have a legitimate reason, for example, if you have been a victim of domestic abuse, or if there is significant urgency.
The form must be completed and returned to the court at least seven working days before your first hearing or appointment at court. A copy of the form must also be sent to the other party.
On many levels, the changes will compel potential litigants to consider non-court dispute resolution at a very early stage. It will also compel lawyers to ensure that our clients have information in respect of all the available options at the very earliest opportunity.
The court will have a more inquisitorial role in probing MIAM exemptions claimed, and it will be possible for judges to adjourn court hearings to allow parties to engage in non-court dispute resolution.
What happens next?
Judges will now be able to promote engagement in non-court dispute resolution without the parties themselves having to agree to it. While they cannot mandate engagement in and of itself, judges can adjourn hearings to encourage non-court dispute resolution, resulting in additional costs for litigants. Judges will also be able to sanction litigants in costs for failing to engage in non-court dispute resolution.
It is hoped that these changes will support the wellbeing of children and families, by encouraging settlement via less contentious and damaging routes, resulting in less emotional and financial cost to families.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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