New Family Procedure Rules
A new set of rules governing family proceedings (excluding "civil
proceedings" heard in the family court) came into force in 2011.
The aims of the new rules include:
- the modernisation of the legal language used
- the streamlining of family procedure
- the creation of a single unified code of practice
- and, as far as possible, procedure to be the same in all levels of court.
Under the new rules the court is obliged to manage each case actively,
focusing attention on the key issues at an early stage, fixing timetables and
giving directions to avoid delay. Once set, the court's timetable may not be
altered by agreement between the parties. The new rules give the court greater
power to make orders on its own initiative, after taking proper account of the
views of the parties: this is intended to enable the court to combat any
delaying tactics and generally to give the court greater control of the process.
The parties themselves are expected to help the court determine a case justly,
and to cooperate by taking a proactive approach: they must not delay or
prevaricate and should try not to let their emotional responses dominate; they
must keep a sense of proportion and must give full frank and honest disclosure.
In general, the focus is to be upon trying to bring the dispute to a conclusion
as swiftly as possible, thereby reducing costs both for the parties and for the
The new rules also require the court to consider, at every stage, whether
alternative dispute resolution (ADR) is appropriate, and the parties must
always be prepared to try and settle their dispute by alternative methods.
The new rules include pre-action protocols. These set out the way in
which the court expects the parties to approach a dispute concerning money or
children before legal proceedings are actually issued (with only a few
exceptions). When giving case management directions the court will take into
account whether or not a party has complied with any relevant pre-action
The pre-action protocols are designed to encourage an open and co-operative
approach - "cards on the table" litigation. They are also designed to encourage
serious consideration of alternative dispute resolution, that is using mediation
rather than the courts to settle the dispute between the parties.
The protocols make it clear that correspondence between the parties must focus
on resolving the dispute, and must not make the dispute worse: pre-action
correspondence should not raise irrelevant issues, or encourage the parties to
adopt fixed positions. The tone of the first letter is particularly important;
it should not be hostile or provocative.
Generally, solicitors should conduct pre-trial correspondence, and indeed the
subsequent litigation, with the aim of causing minimum distress to the parties,
and in a way that promotes as good an ongoing relationship as possible between
the various family members, including children. It may help to bear in mind that
if your solicitor writes to the other side in a way that seems to you to be
unduly friendly, they are probably just following these very clear rules.
Solicitors are also supposed to be aware of the risk that costs will become
disproportionate. Aggressive litigation tactics can lead to costs spiralling out
of control, significantly reducing the assets available for division between the
parties. A party who wants to take a very hostile and aggressive approach must
bear in mind not only that he or she could be left paying the costs incurred by
both sides, if the court considers that he or she has behaved unreasonably, but
also that he or she could end up paying the lawyers more than the sum in
dispute, which is obviously undesirable.
Failure to follow the guidance in the protocols may lead to costs being
awarded against the party responsible.
One of the most publicised and debated features of the new rules is their
emphasis on alternative dispute resolution (ADR), both before proceedings are
started, and within proceedings. ADR simply means any attempt to resolve the
dispute by some means other than legal proceedings, for example mediation.
Mediation involves the parties meeting with an independent third party who can
facilitate discussions and encourage the parties to reach an agreement. Certain
disputes, particularly disputes between parents relating to their children, are
particularly well suited to resolution through discussion and agreement.
Before family proceedings concerning money or children are issued, mediation
should at least be considered. The new rules require the person who wants to
make an application to contact a family mediator, and to attend an information
and assessment meeting about family mediation and other forms of ADR. It is
important to remember that this is not compulsory mediation - what has been
introduced is routine, although still not compulsory, assessment for mediation.
There are a variety of situations in which a person will not be expected to
attend a mediation information and assessment meeting, including when the other
party to the dispute is unwilling to attend such a meeting or to consider
mediation; when a mediator has determined that the case is not suitable for
mediation; when there have been allegations of domestic violence; and when the
claim is a financial one and one of the parties is bankrupt.
There may be cost consequences for any party failing to comply with the
assessment for mediation requirement, but it remains to be seen whether this
much-heralded change will have very much impact on the number of cases that are
litigated; in the short term at least, the apparent shortage of family mediators
may be an issue. Certainly the court cannot refuse to process an application for
a financial remedy for want of a completed mediation assessment form. However, a
court considering an application for financial remedies, or an application
relating to children, will want to know whether or not mediation has been tried,
and will take into account any failure to follow the pre-action protocol.
The issue of ADR is, in any event, likely to be raised at some stage in the
proceedings, even if it is mentioned only to be rejected as an option. Under the
new rules the court must at every stage consider whether ADR is appropriate, and
may choose to refer the parties to mediation at any stage. The court may direct
that a particular hearing, or the proceedings as a whole, should be adjourned
for as long as the court thinks necessary, to enable the parties to obtain
advice about ADR, or to participate in ADR. It does not need to wait for the
parties to ask for such an adjournment; it can make the order of its own
initiative. Judges are now much more likely to ask at every stage whether ADR/mediation
has been attempted, and, if it has not, to ask why it has not.