As we previously posted (here) on 29 April 2024, the Family Procedure (Amendment No 2) Rules 2023 introduced a pivotal change to the Family Procedure Rules (FPR) 2010, emphasising the significance of Alternative Dispute Resolution (ADR) in family law. These amendments, effective from 31 May and 1 June 2024, marked a substantial shift towards non-court dispute resolution (NCDR), reinforcing the courts' commitment to promoting amicable settlements over adversarial litigation.

Key Amendments in the FPR

One of the most critical changes is the amendment of rule 28.3(7), now including provision (aa)(ii), which allows courts to deviate from the general rule of not making cost orders if a party, without good reason, fails to attend non-court dispute resolution. This change is reflected in paragraph 10E of Practice Direction 3A, which explicitly states that courts may consider a party's conduct concerning NCDR when deciding on costs. This amendment currently affects financial remedy proceedings under rule 28.3 but does not extend to other family proceedings like those under Schedule 1 of the Children Act 1989 or interim applications governed by rule 28.2.

Specific Practice Directions Affected

1. Practice Direction 7A: Effective June 1, 2024, this amendment refines procedures for applications in matrimonial and civil partnership proceedings. It now requires documents to be verified by translators, ensuring accuracy and reliability in legal documentation.
2. Practice Direction 9A: From May 31, 2024, a new pre-application protocol emphasises resolving disputes without court intervention. It encourages parties to engage in non-court dispute resolution (NCDR) and mandates full and honest disclosure before seeking financial remedies.
3. Practice Direction 12B: Also effective from May 31, 2024, this change introduces a pre-application protocol for child arrangements, guiding parties to resolve disputes through NCDR and outlining available support resources.
4. Practice Direction 12F: This update, effective immediately upon signing, updates communication protocols with UK Visas and Immigration, enhancing coordination in international child abduction cases.
5. Practice Direction 36N: Extends the online filing pilot scheme for financial remedy applications to December 31, 2024, promoting the use of digital processes in family law.
6. Practice Direction 36ZE: Introduces temporary modifications to procedures for parental responsibility and consent orders, ensuring that safeguarding checks and consent requirements are met before court orders are made.
7. Practice Direction 41G: Effective June 1, 2024, this new direction facilitates electronic proceedings for certain matrimonial and civil partnership orders, marking a significant step towards modernising family law procedures through digital means.

Upcoming Changes in October 2024

Looking ahead, the Civil Procedure (Amendment No. 3) Rules 2024, effective from 1 October 2024, will further align civil and family proceedings concerning ADR. A new power under CPR rule 3.1(2)(o) will allow courts to order parties to engage in ADR. Additionally, rule 44.2 will require courts to consider whether a party has failed to comply with an ADR order or unreasonably refused to engage in ADR when determining costs.

The new rules will apply to proceedings under Schedule 1 of the Children Act 1989, interim applications, and appeals governed by rule 28.2. Likewise, claims under the Trusts of Land and Appointment of Trustees Act 1996 and the Inheritance (Provision for Family and Dependants) Act 1975 will be covered, where previously they were not.

This alignment underscores the growing emphasis on ADR across legal disciplines, signalling a shift towards more collaborative dispute resolution methods.

What This Now Means for Legal Practitioners

For family law practitioners, these changes signal a need for a proactive approach to ADR. The expectation is now clear: parties must genuinely engage in ADR processes or face potential cost consequences. This shift represents a move away from the purely adversarial model and towards a more cooperative approach to resolving disputes.

The updates also highlight the importance of digital transformation in family law, with the introduction of Practice Direction 41G, which facilitates electronic proceedings for certain matrimonial and civil partnership orders. As these new rules come into effect, legal professionals must ensure they are well-versed in the protocols, prepared to advise clients on the benefits and requirements of ADR, and ready to navigate the evolving landscape of family law.