Stewarts has responded to recent consultations by the Family Procedure Rules Committee (FPRC) and Ministry of Justice (MoJ) regarding the early resolution of private family law arrangements.

Senior associate knowledge lawyer Carla Ditz and trainee solicitor James Philpott summarise the consultations’ overarching themes and Stewarts’ responses.

Why are these consultations important?

The family court is under immense strain. In many cases, delays are excessive, and the system is unable to assist those who need it the most. We know that many cases before the courts can and should be dealt with outside of court by ‘non-court dispute resolution’ (NCDR) as it is known. Supporting couples and signposting them to services such as mediation would alleviate much of the pressure on the family court and enable and empower couples to resolve their disputes more constructively. Funding and resourcing are central to this debate, given that the alternatives to court are, on the whole, privately funded.

The scope of the FPRC consultations

The FPRC consultation sought views on proposed amendments to the Family Procedure Rules, the focus being on strengthening existing provisions surrounding Mediation Information and Assessment Meetings (MIAMs) and promoting attendance at mediation and other forms of NCDR.

The MoJ consultation explored proposals for mandatory pre-court mediation, how to help parents resolve disagreements using NDCR, and co-parenting programmes. It also examined how to make individuals accountable for failing to engage in mediation.

Both consultations aim to identify reforms, strategies and approaches that would direct couples away from the courts to other more suitable forms of dispute resolution. This would help relieve pressures on the family court and, importantly, help families identify the right dispute resolution process for them.

Responding to the two recent consultations offers stakeholders a platform to express their views about how to improve the current system for the benefit of those who turn to it for help. Family justice professionals, who see day-to-day the impact the present system has on separated families, have a responsibility to voice their opinions, provide constructive feedback and be proponents for change before proposed reforms are implemented.

Response to the FPRC consultation

MIAMs were introduced in April 2014. Before an application concerning children or financial matters could be made, the applicant was required to attend a MIAM (subject to certain exemptions). While the purpose was to inform individuals about dispute resolution options and identify whether a matter could be resolved through mediation, in practice, MIAM attendance became a ‘tick box exercise’. Government proposals are now afoot to address this weakness in the process.

Stewarts broadly supports the FRPC’s proposed reforms, which will tighten the rules governing MIAMs and likely increase engagement. A more robust approach to claimed exemptions (such as urgency) would mean checks are in place to ensure the MIAM process is adhered to. This would include bringing forward the time when evidence supporting a claimed exemption is provided, which would likely decrease the number of cases where exemptions are (deliberately or otherwise) wrongly claimed.

However, there are concerns for those who are in abusive relationships. Many victims of domestic abuse find themselves unable or reluctant to provide evidence of their abuse. This may be particularly difficult for victims of coercive control involving a pattern of behaviour that is hard to prove. Even victims benefitting from legal advice sometimes require high levels of support to produce such evidence. For those without professional support, the concerns are amplified. Requiring a party to submit evidence at an early stage (unless such evidence, in the form of a police report, for example, is readily available) would place undue pressure on vulnerable applicants. This is something that merits further consideration before any reforms are implemented.

The MOJ consultation

Government proposals for mandatory pre-court mediation fail to recognise that mediation is not appropriate for all cases, and other NCDR options may suit a couple better. Mediation must, however, remain front of mind both at the outset of family breakdown and at every stage of dispute resolution. It must be embedded as an option throughout the court process, supported by judicial encouragement and the exercise of existing court powers to encourage the use of alternative dispute resolution (under Part 3 of the Family Procedure Rules 2010, for example). To that end, endorsement of the mediation process must come from all levels of the profession and judiciary. Utilising judicial discretion to adjourn proceedings and robust judicial encouragement to engage in NCDR stops short of making attendance mandatory but ensures parties remain alive to other options.

The focus should instead be on steering parties towards mediation as a first port of call without imposing it upon them. This is a delicate balance but one that is achievable. If mediation is made compulsory, it risks undermining the core principle of a voluntary process. It may also place additional pressure on parties concerned about the possible ramifications of a failed mediation and how the court would interpret it. Further, in cases of emotional, psychological or financial abuse, it can be difficult for a party to convey their circumstances. As a result, if a party has been in an abusive relationship and/or there is a significant power imbalance, they could be perceived as not engaging in the process if they are forced to mediate.

The consultation acknowledges the role separated parenting programmes could play in addressing some of the key issues arising from relationship breakdown. Early intervention is integral to the success of settling disputes outside of the courts. Shared parenting programmes (SPPs) should become a core part of the process and a widely available and financially accessible service. The content of an SPP can be hugely beneficial to parents by refocusing their minds, helping them process what is happening and manage conflict, and promoting a child-focused approach. SPPs can offer parents the tools to co-parent going forward and signpost other support services.

The need for change

While we recognise the importance and relevance of MIAMs in driving change, a wider information campaign is required in concert with any procedural reforms. It should focus on education, signposting and funding, all of which must be imparted before parties enter the court/NCDR process.

The Family Mediation Scheme, which currently offers £500 towards the cost of mediation, is a step in the right direction. Funding is required on a greater scale to capitalise on this successful scheme to ensure it has a wider reach.

Establishing an official online resource with information about non-court processes and creating local information hubs for those who cannot access the internet is fundamental to parties making an informed choice. Raising awareness of non-court options and support services, such as co-parenting programmes, can help lessen the often-devastating impact of family breakdown. However, investment is required to encourage and enable out-of-court settlements. Rather than imposing mandatory mediation, efforts should be made to promote mediation as a first response to family breakdown while recognising that it may not be appropriate or desirable in all cases.

Finally, there needs to be recognition that early legal advice is vital in ensuring families do not turn to court for resolution unless absolutely necessary. No single government reform can act in isolation. Information, education, resourcing and legal advice must all be deployed to help separating couples resolve their financial affairs and arrangements for children in a supported and well-informed manner if lasting and workable outcomes are to be achieved.

Final comments

Partner Carly Kinch says: “Delays in the family court are putting immeasurable strain on couples caught up in the court system. However, the government’s proposals for mandatory mediation ignore the simple fact that mediation is not for everyone. Forcing couples into mediation risks undermining the process from the outset. Access to early legal advice is fundamental in guiding individuals and supporting them as they seek to resolve issues on relationship breakdown. This should involve steering them towards more appropriate dispute resolution processes that can produce lasting, workable outcomes for families.”

Partner Sophie Chapman says: “It is important that couples are informed of the full range of dispute resolution services before embarking on court proceedings so they can make an informed decision about which process is right for them. Helping couples understand that many disagreements concerning children and finances can be better resolved in other forums, such as mediation or collaborative law, will help ease the burden on the court system. However, funding is also a key component of this campaign.”