Encouraging non-court options for separation – can we do more?

Hannah Minty, Partner in the Russell-Cooke Solicitors, family and children team.
Hannah Minty
5 min Read

As we celebrate Family Mediation Week, it is important to acknowledge the sad reality that far too many separating families still end up in court. No one would seek to deny that there are cases that do need court intervention. However the question we must all consider is whether there is more that we as family lawyers can do to utilise the ever-evolving range of non-court options that we have available to us? It is more important than ever that those at the coal-face know about the full range of non-court options available to separating families and can explain these in a clear and simple way, to improve the experience of these families, reduce costs and delays, and help achieve better outcomes.

The growth of the non-court initiative

The Family Solutions Initiative is a national initiative that grew out of the ‘Surrey Initiative’, which was pioneered by Karen Barham and initially trialled in Surrey. It aims to ensure that family law professionals engage with non-court processes wherever appropriate, by focusing attention on the current rules set out in Part 3 of the Family Procedure Rules (FPR). As the initiative garners increased judicial awareness and support, Family Mediation Week seems the perfect opportunity to shine a spotlight on this simple concept, which has the potential to affect a meaningful shift in the experience of separating families.

The statutory background

Scope already exists under Part 3 of the FPR to encourage and facilitate the use of non-court options. The court has an ongoing duty at every stage in proceedings to consider if non-court options are appropriate and it must also consider whether a Mediation Information & Assessment Meeting (MIAM) took place and whether the parties attempted a form of non-court based resolution. The question is whether the family justice system currently does more than pay lip service to this important tool and, if not, what can we do to ensure that opportunities to resolve proceedings out of court are not being lost?

The Family Solutions Initiative aims to properly facilitate the court’s duty to consider non-court options through the introduction of a new Part 3 Protocol. This protocol, if adopted, would apply to both private law children and financial proceedings and the concept is a simple one.

What should family law professionals do?

The protocol places a number of obligations on family law professionals.

  • Make your client aware of Part 3 of the FPR and the range of out of court options.
  • Write to the other side on an open basis to invite them to engage in an appropriate non-court process, setting out your rationale as to which process/processes may be suitable. The Protocol contains draft letters at Annex 2 to assist you.
  • The other side should reply in open correspondence within a set timeframe with proposed arrangements to engage in the non-court process, proposals for an alternative non-court process, or an explanation of why the invitation is being declined and why no alternative process is being offered. 
  • At any future hearing, the court may be invited to consider this open correspondence and there will be an expectation that the parties may be required to explain why a non-court process is not being used.  
  • The court can stay or adjourn proceedings to enable the parties to explore or engage in non-court processes.
  • If there have been no reasonable invitations to engage in a non-court process or these have been ignored/unreasonably refused then judicial censure and possibly costs orders may follow.

It should be stressed that even with an increasingly sophisticated range of non-court processes available, there will always be cases that are not suited to an out of court resolution and the Protocol does not seek to force those parties to engage in a non-court process. 

Open correspondence provides the opportunity to set out the consideration which has been given to non-court processes and the reasons why these are not being pursued in a particular case.

Recent caselaw

There is a growing body of recent cases which demonstrate frustration on the part of the court about the level of legal costs and how matters are being conducted, with a leaning towards more robust case management and increased willingness of the court to impose costs orders where there has been an unreasonable refusal to negotiate and/or engage in an out of court process. The judgment of Recorder Allen QC in WL and HL is of particular note as an example of a case where the court’s use of the Part 3 powers resulted in a resolution that was cost-effective and proportionate to the issues. HHJ Wildblood QC put it starkly in B (A Child) (Unnecessary Private Law Applications): 

“Therefore, the message in this judgment to parties and lawyers is this, as far as I am concerned. Do not bring your private law litigation to the Family court here unless it is genuinely necessary for you to do so. You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you. There are many other ways to settle disagreements, such as mediation.”

Shining the spotlight on the process

The Family Solutions Initiative aims to put Part 3 front and centre for the parties, their lawyers and the court and to apply it at all times, with evidence of this being provided. While we wait to hear if the Protocol will be referred to the Family Procedure Rule Committee, anecdotally at least, it seems that the spotlight which has been shone on Part 3 has already had a positive impact. 

Family Mediation Week provides an excellent opportunity for family lawyers to reflect and with the concepts underpinning the proposed Protocol being so simple, it does beg the question, why are we not doing this already?  

Briefings Individuals & families Russell-Cooke Hannah Minty separation divorce Family Mediation Week Family Solutions Initiative FMC Family mediation council non-court processes mediation