Imminent changes to Family Procedure Rules

Significant changes to Family Procedure Rules (FPR), which will take effect on 29 April 2024, aim to encourage parties to resolve disputes outside of court.

The revisions are centred around Non-Court Dispute Resolution (NCDR) and Mediation Information and Assessment Meetings (MIAMs), and emphasise the importance of alternative methods such as mediation, arbitration, and collaborative law for the resolution of family disputes.. Lodders’ family law expert, Justin Creed, provides further details.

Changes to NCDR: what we know so far

According to FPR 3.3, the court is required to consider, at every stage in proceedings, whether NCDR is appropriate. Where appropriate, it must also actively encourage parties to use NCDR and facilitate the use of such procedures. 

1. A new definition

From 29 April 2024 the definition of ‘non-court dispute resolution’ at FPR 2.3(1)(b) will be widened to mean: “methods of resolving a dispute other than through the court process, including but not limited to mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law.”

2. A new form requirement

One of notable changes to FPR is the introduction of a new form requirement, FPR 3.3(1)(a), where parties will be required to express their views on using NCDR to resolve matters raised in proceedings. This formality aims to facilitate informed decision-making and encourage parties to consider alternative dispute resolution methods.

3. Consent to NCDR no longer required

Moreover, courts will now have the authority to encourage parties to undertake NCDR without requiring explicit consent. This move, highlighted in FPR 3.4(1)(a), aligns with recent legal precedent, such as the Churchill v Merthyr Tydfil CBC case, which affirmed the courts’ power to compel parties to participate in NCDR where appropriate.

4. Potential cost sanctions

The changes also extend to cost considerations, with courts authorised to take into account a party’s failure to attend a MIAM or NCDR without good reason when deciding on costs orders in proceedings dealing with finances on divorce, as set out in FPR 28.3(7). This underscores the importance of compliance with NCDR requirements and signals potential financial consequences for non-compliance.

Further clarification needed

It is yet to be seen if courts will encourage NCDR, whether in children or in financial proceedings, and require parties to file forms setting out their views on using NCDR as a means of resolving matters. However, the recent landmark judgement of Mrs Justice Knowles in the case of X v Y published on 8 March 2024 provides an indication. In that case, proceedings were adjourned for NCDR to take place prior to a final hearing. The judge referred to the forthcoming changes to Family Procedure Rules from 29 April 2024, stating:

“Going forward, parties to financial remedy and private law children proceedings can expect – at each stage of the proceedings – the court to keep under active review whether non-court dispute resolution is suitable to resolve proceedings. Where this can be done safely, the court is very likely to think this process appropriate especially where the parties and their legal representatives have not engaged meaningfully in any form of non-court dispute resolution before issuing proceedings.”

It is also unclear what factors courts will consider when deciding whether to pause or delay proceedings to encourage parties to explore NCDR options and engage in it. No clear guidelines have been established.

Relevant factors

In the Churchill case, the Bar Counsel mentioned some relevant factors (although this was discussed in civil, rather than family, proceedings):

• The type of Alternative Dispute Resolution (ADR) being considered.
• Whether the parties have legal advice or representation.
• If ADR is likely to work without such guidance or representation.
• If it was made clear that parties were free to pursue their claim (or defence) if they didn’t settle.
• The urgency of the case and whether ADR-related delays are reasonable.
• Whether these delays could harm the claim or cause limitation issues.
• The costs of ADR compared to the parties’ resources and the claim’s value.
• Whether there’s a real chance of resolving the claim through ADR.
• If there’s a significant imbalance in the parties’ resources or bargaining power.
• The reasons a party gives for not wanting to mediate, such as a recent failed attempt at ADR.
• The fairness and proportionality of the consequences if a party refuses ADR despite a court order.

There may be other factors to consider in the family law context, for instance issues of domestic abuse.

Changes to MIAMs

MIAMs are also being amended. As set out in FPR 3.9(2), providers will now be required to inform attendees about the most suitable forms of NCDR for their dispute, explain why they are the most suitable, and provide guidance on how to proceed.

Domestic abuse will still provide an exemption to the MIAM. We now have the wider definition of domestic abuse in the Domestic Abuse Act. However, MIAM exemptions will be tightened up under FPR 3.8 and courts may be more inclined to look at MIAM compliance going forward.

Planning ahead

Looking ahead, legal professionals and mediators must familiarise themselves with these changes to FPR and adapt their practices accordingly. This includes ensuring adequate provision of information on NCDR during MIAMs and exploring opportunities to promote alternative dispute resolution methods effectively.

The forthcoming changes to the FPR reflect a concerted effort to promote NCDR and streamline the resolution process. In the recent Spring Budget 2024, the Chancellor announced spending of £170million to reduce court delays through the use of NCDR.

By embracing these changes and leveraging alternative methods, parties can achieve more efficient and satisfactory outcomes while reducing the burden on the court system.

Based in both Stratford upon Avon and Birmingham, Lodders’ Family Law team is recognised in both Chambers and Legal 500 guides. Our expert lawyers have the experience to deliver sound judgment and advice, however complex an individual case may be, with excellent client care. For more information, or for further advice about the changes to Family Procedure Rules, please get in touch.