A recent family court judgment has highlighted the importance of active engagement in non-court dispute resolution (“NCDR”) and the cost consequences for failure to do so.

In this article, paralegal Meghna Dwyer considers the case of AM v RF [2024] EWFC 288 (B), which concerned the appeal of a child arrangements order and the associated costs order made following the outcome of the mother’s unsuccessful appeal.

 

Background

The changes to the Family Procedure Rules (FPR) effective from 29 April 2024, enhance the court’s authority to promote Non-Court Dispute Resolution (NCDR) in private children law and contested financial remedy cases. Key changes include encouraging parties to consider and undertake NCDR, potentially adjourning proceedings to facilitate NCDR and imposing cost orders for an unjustified refusal to engage in NCDR.

Pre-action protocols have also been introduced which outline the steps parties must take to attempt to resolve matters before initiating court proceedings and which also clarify what constitutes NCDR (including but not limited to mediation, arbitration, neutral evaluation and the collaborative process). Parties continue to be required to attend mediation information and assessment meetings (MIAMs), unless a valid exemption applies, which involves an initial meeting with a qualified mediator to consider whether the disputed issues are capable of resolution outside of the court process. Read our article from last year for a full review of the changes.

The mother and father in AM v RF were unable to agree child arrangements, resulting in the father applying for a child arrangements order. The matter came before the Magistrates Court, which made an order setting out the living arrangements of the parties’ young child and provided for defined periods to be spent with each parent on a bi-weekly cycle and during school holidays. The court order sought to share the time between the parents equally. This contrasts with the arrangement in place before the order, where the child lived only with the mother and spent time with the father. The mother appealed.

The judgment was divided into two parts. The first part dealt with the appeal, and the second part considered the use of non-court dispute resolution and costs.

 

Part 1

The mother appealed on the grounds that the court was wrong and exercised its discretion in contravention of the child’s best interests in:

  1. Making an order that the child should live with the mother and father on an equal basis.
  2. Ordering a division of time that resulted in the child having only one-night blocks with the mother Monday to Friday each week and only one longer block on alternate weekends when the mother was working. This, therefore, restricted her quality time with the child.

In short, the mother disagreed that the arrangements set out in the order were in the child’s best interests.

In considering the appeal, the judge observed that the Magistrate’s Court conducted a detailed analysis of section 1(3) of the Children Act 1989. This section contains the ‘welfare checklist’, which is a list of items the court should have regard to when determining what is in the child’s best interests. The magistrates were asked which of the parents’ respective choices better met the child’s welfare needs. The judge concluded that the magistrates exercised their discretion proportionately and properly and dismissed both grounds of appeal.

The judge urged the parents to engage in NCDR to resolve their differences concerning the child arrangements and help improve their communication. The proceedings were adjourned, to be relisted after 56 days so that the parents could engage in mediation. The judge highlighted that the extent to which each parent engaged in NCDR would be a significant factor in informing him what costs order to make or whether to make one at all.

 

Part 2

The case was brought back in front of the judge to assess whether the parties engaged with mediation meaningfully, actively and willingly and to deal with the matter of costs. The combined costs of the appeal were £20,000.

The judge found that the father had taken reasonable steps to ensure the parties could engage in the mediation process, including suggesting names of suitable mediators. The mother agreed a suitable mediator but then cancelled on the day of the appointment. Her reasoning for the cancellation was that the mediator did not hold a legal aid franchise, and the fees were beyond what she could afford.

A second mediator was instructed. The mother and father discussed setting up mediation once every six weeks to work around the mother’s schedule. The father wanted to book four or five sessions in advance. However, the mother’s solicitors said this was not possible. A date with the mediator was eventually set five months after the first part of the judgment. The mother provided her reasons for the delay, which were due to her new job, where she was on probation, and difficulties with the child.

The judge concluded that the father was actively trying to engage both parties in mediation. While the mother was not actively opposed to mediation or deliberately frustrating it, she was not engaging in it with sufficient enthusiasm and pro-activity to absolve herself of responsibility for the process ultimately not working. The judge ordered the mother to pay 50% of the father’s costs.

 

Conclusion

This case highlights the importance of meaningful engagement in NCDR as the changes to the Family Procedure Rules introduced in April 2024 become fully embedded in judicial decision making. It also emphasises the potential cost implications for parents who fail to participate in NCDR with sufficient enthusiasm and without good reason.

Partner Sophie Chapman comments: “It is clear from recent reported cases such as AM v RF that judges are starting to take a firm stance where individuals fail to adequately consider and engage with mediation or other forms of NCDR. What’s more, cost orders can and will be made in certain circumstances. This, together with the new pre-action protocol for private law proceedings, narrows the scope for parents to avoid engaging with MIAMs and NCDR. Some may consider this to be rightly so, where such alternative options can often provide a better way to resolve disagreements concerning children.”

 


 

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