The new family procedure rules and new pre-action protocols in both private children and financial remedies

Hot on the heels of the new Family Procedure (Amendment No 2) Rules (FPR) effective from 29 April 2024, family lawyers should appraise themselves of the provisions in the two new pre-action protocols.

The new pre-action protocols

To support the recent changes to the FPR both the PD 12B Child arrangements programme and the PD 9A Application for a Financial Remedy have been updated to include pre-action protocols detailing the steps prospective parties should take before starting any court proceedings. Lawyers have an obligation to ensure their clients are aware of the provisions in the protocols.

The protocols applied with immediate effect.

The president is also signing off on two new letters (children and finances), to be sent in his name as ‘the most senior Family Law Judge in England & Wales’, to all new court applicants and respondents.

The new rules, new pre-action protocols and the presidential correspondence are designed to focus on the opportunities and obligations to reach resolution away from the court. They are intended to strengthen the court’s duty to encourage and facilitate non-court dispute resolution (NCDR), where safe and appropriate, thereby giving teeth to Part 3 FPR.

The parties and the professionals advising them, will be expected to comply with the pre-action protocols. Naturally there are differences between the children and financial protocols and the obligations and responsibilities of litigants in person and professional advisers.

Lawyers operating in the civil court arena have worked in the shadow of a pre-action protocol for some time. They would not dream of issuing proceedings without complying; family lawyers will need to adopt the same approach.

The private law children protocol includes helpful signposting to resources, particularly for litigants in person.

The financial remedies pre-action protocol (PAP) is more robust. In summary:

• the PAP applies to all applications for financial remedy, whether the asset are large or small and irrespective of whether the parties are legally represented or not;
• it provides that any legal representative instructed should (1) give a copy of the PAP to all parties and (2) explain the meaning and implications of the PAP to their client, before they start court proceedings;
• the objectives of the PAP are to encourage appropriate engagement in NCDR (defined in the new rules), to enable the parties to understand each other’s position, to assist the parties in deciding how to proceed, to identify the issues in dispute, to narrow the scope of the dispute, to try to settle the issue without court proceedings, to support efficient management of dispute resolution, and to reduce the costs of resolving the dispute;
• to comply with the PAP, the court will usually expect parties to have attended a mediation information and assessment meeting (MIAM) (unless a valid exemption applies), to have considered and, unless there is good reason for not doing so, proposed and engaged in NCDR, provided full disclosure to the other party, clearly set out their position (including the orders they would wish the court to make were proceedings started), and attempted negotiation by making reasonable proposals for settlement;
• before starting court proceedings parties should bear in mind that many (if not all) of the benefits of having a court timetable can be achieved via an NCDR process such as arbitration – see the very recent judgment of Nicholas Allen KC (sitting as a deputy High Court judge) in NA v LA [2024] EWFC 113;
• the court may consider the parties having obtained advice via the ‘single lawyer’ or ‘one couple, one lawyer’ scheme as good evidence of a constructive attempt to obtain advice and avoid unnecessary proceedings, provided they have complied with paragraph 6 of the PAP;
• although there is a place for constructive negotiation via correspondence between legal representatives, that alone will not be a sufficient attempt at NCDR for the purposes of the PAP. Other forms of negotiation between legal representatives, such as round table meetings, may be considered sufficient depending on when and how they took place;
• legal representatives should make parties aware that if they have not attempted at least one form of NCDR before starting court proceedings the court may (when invited or of its own initiative) decline to commence or suspend the Form C court timetable – again see the recent decision in NA v LA;
• there may be good reasons (including where there is a real risk that one party may start competing proceedings in another jurisdiction or dissipate assets) to start court proceedings before attempting NCDR, but the court will still expect parties to attempt NCDR once the urgent issue which necessitated court proceedings been issued has been resolved;
• if a party is not willing to attend NCDR they should give reasons in writing so the other party (and, if proceedings are started, the court) are clear as to their position. When the court is considering whether to make a costs order it will take into account any pre-action offers to settle, a failure (unless exempt from doing so) to attend a MIAM, the content of the new FM5 form, whether a party has provided appropriate financial disclosure, and a failure (without good reason) to attend NCDR;
• all correspondence must focus on the clarification of claims, identification of issues and their resolution and the impact of any correspondence upon the reader must always be considered. Where a first letter is drafted by a legal representative it should be approved by the client. Legal representatives writing to an unrepresented party should always recommend that he or she seeks independent legal advice; and
• the PAP underlines the duty of the parties to make full and honest disclosure of all material facts and other information, with documents, relevant to the issues. Legal representatives must tell their clients in clear terms of the duty to provide honest disclosure and of the possible consequences of providing false information.

A considerable responsibility now sits with lawyers to ensure protocol compliance. They should correspond openly and reasonably with the other party/their lawyer on the subject of NCDR and keep any initial decision not to engage under careful ongoing review. They must advise their clients that the court may increasingly of its own volition or on application, adjourn proceedings.

Failure to comply with the protocols and the new rules may lead to lawyers and their firms being named in reported cases.

If the new rules and protocols fail to achieve their objective in directing cases away from the courts, where it is safe and appropriate to do so, the move to some form of NCDR mandation may become unstoppable, particularly in the light of Churchill v Merthyr Tydfil. Lawyers need therefore to sit up and take notice of the new landscape.

It behoves all of us working with separating families, to use our skills and talents to resolve matters away from the court, where it is safe and appropriate to do so – ‘let’s get this Part 3 started'.

A reminder of the Family Procedure (Amendment No 2) Rules

1. The definition of ‘non-court dispute resolution’ at FPR 2.3(1)(b) is widened to mean: ‘methods of resolving a dispute other than through the court process, including but not limited to mediation, arbitration, evaluation by a neutral third party (such as a private Financial Dispute Resolution process) and collaborative law.’

Lawyers’ negotiations, whether without prejudice or open, although to be encouraged, will not be a form of NCDR within the new definition. Lawyers will be unable to self-certify that there has been NCDR by virtue of negotiations with one another, unless they are part of the collaborative process.

2. MIAMs – authorised providers can be found on the FMC register.

The number of MIAM exemptions has been reduced and when claimed, evidence for an exemption will be required at issue of proceedings.

Unless exempt, lawyers should ensure their clients are MIAM compliant. I recommend that both applicants and respondents, to include those already in the court system, obtain a MIAM. The MIAM is not just a tick-box exercise; it is a fulsome explanation of all forms of NCDR and an opportunity for signposting to support and other services, which is extremely beneficial to families, particularly where there are children involved. MIAM compliance may protect your client from a costs order.

3. The new court Form FM5 seeking views on NCDR – FPR 3.3 (1A). ‘When the court requires, a party must file with the court and serve on all other parties, in the time specified, the new form setting out their views on using NCDR as a means of resolving matters raised in the proceedings’.

4. Increased use of stays/adjournments – FPR 3.4 (1A) – the agreement of the parties will no longer be required ‘where the timetabling of proceedings allows […], the court may adjourn proceedings to encourage parties to undertake non-court dispute resolution’.

5. New costs provisions in financial remedies – FPR 28.3, namely ‘the court must have regard to any failure by a party, without good reason, to (i) attend a MIAM or (ii) attend non-court dispute resolution’.

This provision will apply equally to applicants and respondents. It is also expected to include compliance with the incoming pre-action protocols.

6. The increasing importance of Part 3 correspondence which may be brought to the attention of the court in respect of case management and costs.

Invite the other lawyer/LIP to an appropriate NCDR setting out the proposed process/es, the practical and costs arrangements; enlist the assistance of the court for case management, see WL v HL [2021] EWFC B10 where Mr Recorder Allen KC exercised his Part 3 duties.

Engage in open NCDR correspondence – see contentious probate case Jones v Tracey [2023] EWHC 2256 (Ch) – Master Marsh determined that correspondence between solicitors to consider ADR is to be treated as open even if written without prejudice.

Respond to an invitation to engage in NCDR in a considered and timely fashion.

Read this very recent judgment by Nicholas Allen KC (sitting as a deputy High Court judge) in NA v LA [2024] EWFC 113. Read this short and recent judgment by Mrs J Knowles Re X (financial remedy: non-court dispute resolution).

It does not name the solicitors’ firms, but future judgments almost certainly will, particularly in the climate of transparency and an increase in reported cases. Noteworthy comments include:

• ‘this judgment is for those involved in family proceedings, to understand the court’s expectation, that a serious effort must be made to resolve differences before they issue and at any stage of the proceedings […]. I want to signal that the court will be active in considering if NCDR is suitable […]. The FPR changes will give added impetus’;
• ‘it may be thought that the decision in Churchill v Merthyr Tidfil is of limited relevance to family proceedings. To make that assumption is unwise’;
• ‘I have learned today that the parties never engaged in any form of NCDR before issuing – a failure I regard as utterly unfathomable’.