Family Law and Social Work: End of court-based dispute resolution?

In his latest article for Cansford labs, Family Law blogger John Bolch examines families, courts and what it means for people to 'have their day in court'...

It has often been said that the court is not an appropriate place to deal with family disputes.
But whilst there has been considerable progress over the last thirty years in moving family disputes away from the court, it remains the case that most parties still expect the court to resolve their dispute for them – they want to “have their day in court”.

But they may soon have to alter that expectation.

A new landscape?
On the 29th of April new rules will come into force which could completely change the family dispute resolution landscape.

The Family Procedure (Amendment No. 2) Rules 2023 were made last November and laid before parliament in December. Few people seemed to pay them any great attention (I certainly didn’t).

But amongst the amendments were changes that could have a radical effect upon the experience of future users of the family courts. The new rules, we are told, aim to encourage parties to resolve their disputes out of court.

They are to do this by the use of ‘non-court dispute resolution’, which is defined as “methods of resolving a dispute other than through the court process - this is including but not limited to mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law”.

In order to concentrate the minds of the parties, the rules will enable the court to require them to set out in writing their views on using non-court dispute resolution as a means of resolving the matters raised in the proceedings.

Under active review

They will also enable the court to adjourn the proceedings for non-court dispute resolution to take place, even if the parties do not agree to this. And in financial remedy proceedings there will be the additional stick of the threat of costs orders against parties who failed without good reason to attend a MIAM or non-court dispute resolution.

As Mrs Justice Knowles stated in a recent judgment, referring to the new rules:

“Going forward, parties to financial remedy and private law children proceedings can expect - at each stage of the proceedings - the court to keep under active review whether non-court dispute resolution is suitable in order to resolve the proceedings.

Where this can be done safely, the court is very likely to think this process appropriate especially where the parties and their legal representatives have not engaged meaningfully in any form of non-court dispute resolution before issuing proceedings.”

But will anything actually change?
The eagle-eyed reader may have noticed that every heading in this post is terminated with a question mark. This is the action of a world-weary ageing family law hack who has witnessed numerous family law ‘revolutions’ over the years, only to see that little or nothing actually changes.

Who could forget, for example, the President’s ‘Transparency Guidance’, issued to great fanfare back in January 2014? The guidance, we were told, would have the effect of increasing the number of judgments available for publication, thereby addressing the charge that family courts operate a system of secret and unaccountable justice.

A decade on...

Ten years later, we have about the same number of judgments published as before the guidance, and as many sceptics as ever believe that the family courts operate a system of secret and unaccountable justice.

As for these new rules, it does seem that they are part of a concerted effort to move far more cases away from the courts, for the good of both the parties and the public purse, even if the intention is not to actually end court-based family dispute resolution (yes, I admit the title to this post was hyperbole, but it got you reading this far).

But the resistance to such change is strong...

Family law litigants really do want their day in court, and will do everything they can to get their way, as we saw with the introduction of ‘compulsory’ MIAMs, which many seem able to avoid at will.

And, dare I say it, the possibility of losing a fat fee to some mediator may just encourage unscrupulous lawyers to tempt their clients away from non-court dispute resolution.

Yes, I know I’m being cynical (what’s new?), but I will not be holding my breath awaiting the new dawn that some appear to believe is heralded by these new rules.