Large changes to how non-court family law disputes are handled in England and Wales have been enacted. The author examines the impact.

The following guest article is from Victoria Cannon, who is partner and head of the family team at law firm Hugh James. She writes about major changes to rules aimed at non-court routes to resolve family law disputes. The editors are pleased to share these views; the usual disclaimers apply. To respond, email tom.burroughes@wealthbriefing.com

As of 29 April this year, significant amendments to the Family Procedure Rules (FPR) will enhance the approach to non-court dispute resolution in family law matters. These changes mark a pivotal shift towards encouraging parties to seek alternative methods for resolving disputes outside traditional court proceedings. 

What are the Family Procedural Rules? 
The Family Procedural Rules is what anyone involved in family law abides by as they govern the procedures used in family courts in England and Wales.

The amended FPR introduces a broader definition of "non-court dispute resolution" at FPR 2.3(1)(b), now encompassing various methods such as mediation, arbitration, evaluation by a neutral third party (such as a private dispute resolution process), and collaborative law. This expansion emphasises the importance of exploring diverse avenues for resolving disputes, moving beyond the confines of litigation.

Previously, parties could rely on some exemptions to bypass the requirement for a Mediation Information and Assessment Meeting (MIAM) or for court referrals in certain cases involving children or financial remedies. However, the new legislation underscores the obligation for parties to actively engage in non-court dispute resolution, emphasising the court's assistance in pursuing alternative avenues for resolution.

Key changes
Informative requirement: The definition included in the rules not only widens the scope for non-court dispute resolution, but also amends FPR 3.9(2), which mandates MIAMS providers to inform their clients about suitable forms of non-court dispute resolution and provide comprehensive materials on each option. This requirement ensures that parties are well-informed about all the available alternatives to court proceedings.

Broader definition of domestic abuse: The definition of "domestic violence" within the FPR has been broadened to "domestic abuse," aligning with the provisions of the Domestic Abuse Act 2021. Furthermore, FPR 3.8(1)(c)(ii) now considers "significant financial hardship" instead of "unreasonable hardship" in cases involving domestic abuse. There will still be an exemption where there has been domestic abuse allowing parties to advance straight to court proceedings.

Ongoing consideration of non-court resolution: Perhaps the most significant change is that parties are now obligated to consider non-court dispute resolution not only before initiating a case but also throughout its duration. FPR 3.3(1A) requires parties to file a form with the court and serve it on all parties, expressing their views on non-court dispute resolution. This ensures continuous evaluation of alternative methods to resolve issues and reinforces the duty on judges to continue questioning whether alternative methods should be tried throughout the case. This also sets up the court to understand the parties’ views and question why a party may be opposed to alternative methods without good reason.

Removal of agreement requirement: Previously cases could be adjourned if parties agreed to consider non-court dispute resolution. However, this requirement (FPR3.4(1)(b) will be deleted from 29 April and amended rule, FPR 3.4 (1A) will exist. This rule allows the court to adjourn proceedings to facilitate non-court resolution where “timetabling of proceedings allows sufficient time for these steps to be taken” without explicit agreement from the parties. What is not clear is whether the parties can be forced to attend. However, if the parties fail to attend, FRP 28.3(7) is now amended to state that failure to engage without good reason may lead to a departure from “no order as to costs."

What is not clear is what is a “good reason” and at what stage could a court pause or delay proceedings to consider alternative methods. This provision incentivises active participation in alternative methods and discourages unjustified resistance.

Non-court dispute resolution – up front and centre
Without a doubt the changes are being implemented so that court users, judges and lawyers have mediation and other non-court dispute resolution approaches at the forefront of their minds when considering the court as a means of resolving disputes. While the practical implementation of these changes remains to be seen, initiatives such as the Pathfinder Pilot in North Wales and judicial endorsements of non-court dispute resolution, as seen in the case of X vs Y [2024] EWHC 538 (FAM), where Mrs Justice Knowles endorsed the use of non-court dispute resolution, referring specifically to the new rules, provide promising indications for the future.

Looking ahead
In conclusion, the amendments to the Family Procedure Rules signify a significant shift towards prioritising non-court dispute resolution in family law matters. Parties and practitioners will now face heightened scrutiny and potential repercussions for bypassing alternative methods without justified reasons. The effectiveness and application of these changes will unfold in the coming months, shaping the landscape of family law dispute resolution.