Since 31 May 2024 it has been a requirement in both financial remedy and children cases for parties to give serious thought and consideration to non-Court dispute resolution (NCDR). Indeed, the Family Procedure Rules, which govern how all Family Law cases should be conducted, now has in place Pre-application Protocols dealing with the Court’s expectations as to NCDR.
Non-Court dispute resolution (NCDR) means methods by which parties can attempt to resolve their dispute without having recourse to the Court. Examples of these methods include:
- Mediation;
- Collaborative settlement;
- Lawyer negotiation;
- Arbitration; and
- Early Neutral Evaluation
- Private Financial Dispute Resolution
Whilst similar, there are slight differences between the financial remedy and children Pre-application Protocols, such that they are best addressed separately:
Financial Remedy Pre-application Protocol
- Before coming to Court, in the absence of safety concerns or other good reasons, the Court will expect parties to have attended at least one form of NCDR.
- All applicants are required to attend a Mediation Information and Assessment Meeting (MIAM) – unless relevant exemptions apply – and respondents will be strongly encouraged and expected to attend one.
- If Court proceedings are started, a party must set out their position as to NCDR on a form FM5.
- If the parties have not attended a form of NCDR, the Court may decline to commence or instead suspend the Court timetable. Furthermore, the Court will take any failure by a party to attend a MIAM into account when considering the question of costs.
- For the purposes of the protocol, simple negotiations through solicitors’ correspondence is not considered sufficient to satisfy the NCDR requirement.
- Throughout proceedings, correspondence should focus on the clarification of claims and identification of issues and should not be protracted or unnecessary.
- The impact of any correspondence upon the reader must always be considered.
- Prior to making any Court application, consideration should be given to pre-application financial disclosure and negotiation. Such pre-application disclosure should be full, open and honest.
Whilst most of the Protocol should be commonplace within modern Family Law practice, the obligation to attend NCDR (over and above a MIAM, which has been a requirement for a number of years) is novel and will hopefully lead to early and efficient resolution of many financial remedy cases.
Children Pre-application Protocol
It is worth noting at the outset that this Protocol does not apply in the following circumstances:
- Where parties are agreed as to the Order they are asking the Court to make;
- Where children are subject to emergency, care or supervision proceedings; or
- Where there is evidence of domestic abuse, risk of harm to a child or removal of a child from the UK.
When considering the Protocol, parties must bear in mind that the ‘no Order’ principle still applies. That is, the Court will only make an Order in relation to children if they believe that the making of an Order would be better for the child than not making one. Furthermore, the law expects that, unless it is unsafe to do so, a child needs a relationship with both parents and the Court will expect both parties to cooperate in meeting that need.
Against that background, the Protocol applies as follows:
- Before coming to Court parties are expected to explore sources of support and advice which may help them to resolve their dispute. These include:
– The Child Arrangement and Information Tool at gov.uk
– CAFCASS
– Advicenow
– Separated Parenting Programmes
– Co-parenting apps
- Parties are expected to consider whether NCDR might help them to resolve their dispute. If the matter comes before a Judge, the parties will be required to explain which forms of NCDR they explored and why they were unsuccessful.
- All applicants are required to attend a Mediation Information and Assessment Meeting (MIAM) – unless relevant exemptions apply – and respondents will be strongly encouraged to attend one.
- Perhaps the most important feature of the Protocol is the parties will be expected to understand that dispute from the point of view of the child(ren) and, where appropriate, it is expected that the child(ren) will be involved in the dispute and their voice(s) will be heard.
- If the Court finds that the Protocol has not been complied with, a Judge may Order that the gaps between hearings be used for the parties to undertake any steps of the Protocol that have been missed. More fundamentally, a Judge may Order that the proceedings be paused for the same purpose.
- Whilst costs Orders are somewhat of a rarity in children cases, a failure by one or both parties will be taken into account should the Court come to consider the question of costs.
It is hoped that with the advent of the Pre-application Protocol, more cases involving children will be resolved outside of Court and fewer children will spend their minority subject to the terms of a Court Order.
Everyone is required to comply with the Pre-application Protocols, whether they have had professional legal advice or not. If you require assistance with NCDR or the Pre-application Protocols do contact a member of our expert Family Team who will be pleased to assist you.
