Family
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New Family Procedure Rules
A new set of rules governing family proceedings came into force on 6 April 2011, together with associated practice directions; essentially the new rules and their practice directions replace all previous rules of court for family proceedings. The new rules apply to proceedings issued before, as well as to proceedings issued after, 6 April, and to all family proceedings at all levels (with some distinctions between the different levels within the rules), unless the court directs otherwise. In some courts a decision has been taken to phase the new rules in more gradually, but unless the court itself directs otherwise, the new rules now apply. The new rules do not, however, apply to ‘civil proceedings’ heard in the family court.
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.
Contents
- Language and forms
- Overriding objective and case management
- Pre-action protocol
- Alternative dispute resolution/mediation
- Costs
The aim of modernising language has been slightly derailed by various problems associated with changing the relevant court software, but most Latin phrases have been removed, and the new terms should be easier to understand. In particular, claims for one of the range of financial orders available on divorce, which used to be known as claims for ‘ancillary relief’ are now known as claims for financial orders, and, more generally, all claims relating to money are now known as financial remedies.
Most of the various forms have been redesigned with the aim of making them as simple as possible, often making use of tick boxes; the new forms include comprehensive guidance notes.
Overriding objective and case management
The new rules have simplified and standardised family procedure in a number of ways. The overriding objective of the rules is ‘enabling the court to deal with cases justly, having regard to any welfare issues involved’. Dealing with cases justly means: (a) dealing with the case ‘expeditiously and fairly’; (b) dealing with the case in a way ‘proportionate to the nature, importance and complexity of the issues’; (c) ensuring that the parties are on an equal footing; (d) saving expense; and (e) allotting an appropriate share of the court’s resources to the case, while taking into account the need to allot resources to other cases.
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 courts.
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 protocol.
The pre-action protocols are designed to encourage what one author of the new rules has called ‘cards on the table’ litigation, that is an open and co-operative approach. They are also designed to encourage serious consideration of alternative dispute resolution (ADR), 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 itself 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.
Alternative dispute resolution/mediation
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.
The basic rule in family cases is still that costs orders will not be made in applications for financial remedies unless there has been litigation misconduct. However, it may be that under the new rules costs orders will become more common in financial remedy cases.
Under the old rules, it was relatively unusual for judges to make costs orders: judges tended to disregard more minor litigation misconduct, and were primarily concerned with misconduct which had led the other side to incur considerable costs. One of the authors of the new rules suggests that courts hearing financial cases are going to be increasingly influenced by any unnecessary increases in costs that may result from failure to comply with the pre-action protocols or the various practice directions attached to the new rules, or from related litigation misconduct. He believes that courts will be more likely to make costs orders under the new rules than they were under the old. Certainly, the new rules encourage the courts considering whether or not to make a costs order to consider specifically any pre-application offers to settle and the disclosure given to the other party.