Alex Verdan QC and Harry Nosworthy, 4 Paper Buildings
Deborah Eaton QC and Katherine Kelsey, 1 Kings Bench Walk
This article looks at the use of Early Neutral Evaluations (ENEs)
in private law children disputes following, what is understood to be, the first
ENE in a children case on 11 July 2014. Dispute resolution is well
established in the UK
legal system. Indeed, the new Practice Direction 3A of the Family
Procedure Rules 2010 provides for the parties’ mandatory attendance with a
mediator before issuing an application. There is a ‘general acknowledgment that
an adversarial court process is not always best suited to the resolution of
family disputes, particularly private law disputes between parents relating to
children, with such disputes often best resolved through discussion and
agreement, where that can be managed safely and appropriately’.
ENE is a method of ADR and can be summarised as a technique
whereby the parties agree to employ a senior lawyer, or appropriate expert, in
this instance a retired judge to evaluate the likely outcome of the case. He or
she is to consider the strengths and weaknesses of the parties’ evidence and
arguments, and to provide the parties with a decision, or opinion on a
particular question, or issue to assist the parties in reaching an agreement or
determine the case. In this instance, the parties were in the early stages of
proceedings, the father having initially issued an application for a child
arrangement order and a specific issue order to remove the parties’ children to
where the father lived, for a holiday. The matter then progressed to the First
Hearing Dispute Resolution Appointment where the following issues were
identified between the parties:
- the quantum and
share of the children’s school holidays;
- which parent was
to have which half of the holidays;
- the disclosure of
details of third parties caring for the children;
- the responsibility
for and the associated cost of drop offs and collections for contact.
At the first hearing the parties were unable to resolve the
issues. It was agreed that the parties would instruct an ENE to assist in
reaching an agreement on the issues, or to determine them. Crucially, it was
agreed that both parties would be bound by the determination of the evaluator.
The court proceedings were adjourned generally pending the outcome of the evaluation.
Procedure for an Early Neutral EvaluationThe process is a flexible one and is within the control of the
parties. There is no set procedure to be undertaken, however, the following
steps, which broadly mirror the procedure in the FPR 2010 were undertaken in
(a) The parties agree
to seek the instruction of an ENE (as a single joint expert), this is to be
recorded on the court order with the court proceedings being adjourned
generally pending the outcome of the evaluation.
(b) The parties agree
to be bound by the decision of the evaluator.
(c) The parties agree
the questions/issues to be determined by the evaluator in a joint letter of
instruction, and include any other relevant terms such as the procedure to be
adopted, and for example the use of confidentiality clauses.
(d) The parties will
submit to the evaluator the relevant documents – their case summaries,
statement of issues, chronologies and written submissions and an agreed bundle
of documents in advance of the hearing.
(e) The evaluator then
hears evidence or argument (as may be agreed) as in a contested court hearing.
(f) The evaluator
provides a judgment on the identified issues, or an indication to assist
negotiations should the parties seek to use the hearing as an FDR type model.
(g) The decision or
agreement is then converted into an order to be lodged with the family court as
a ‘consent order’.
(h) The parties to
arrange the venue for the hearing and recording of it.
(i) The parties to
share the costs of the instruction.
Jurisdiction and enforceability of the evaluation
The parties to the evaluation need to agree to submit to it and be bound by its decision in order for the Evaluator to have jurisdiction to determine the issues. In absence of this the decision of the Evaluation cannot be binding. Matters may be more complex where the parties have not yet issued proceedings. It is likely in these circumstances that the evaluator will need to be satisfied that the parties agree that the child is habitually resident in England and Wales, and the parties submit to the jurisdiction of England and Wales in order for the decision to be converted into an enforceable court order.
In order for the decision to be enforceable, the contents of the decision needs to be drafted into a consent order, the parties having already agreed to be bound by the decision of the evaluator. Once the court has approved and made the consent order it can be enforced as any other court order. There is no mechanism in place to appeal the decision of the evaluator should one party consider the decision to be wrong. In these circumstances, it is expected that the court will uphold the decision where it follows an impartial adjudication following a recognised process where the objective is to achieve a fair result. However, the court in approving the order will as with any consent order have to consider and apply the s 1(1) of the Children Act 1989.
It remains to be seen what approach the courts are likely to take where one party seeks to undo the decision of the evaluator. It is likely, as with other orders made by agreement that the aggrieved party will need to demonstrate that there has been a material change in circumstances and for that reason, and having regard to the child’s welfare, the order should not be made/enforced.
Practical considerations for practitioners
The ENE process is flexible and within the control of the parties. This is likely to be attractive to litigants searching for a speedy and discreet resolution to their issues. The obvious advantages to the process can be summarised as follows:
(a) A determination or agreement is reached far more quickly than within court proceedings.
(b) The parties’ costs are likely to be reduced by having the issues determined at an earlier date.
(c) The ENE is confidential, which provides many litigants with reassurance at a time when the court is process is becoming more open and transparent, or may attract media attention.
(d) The parties have control over the choice of tribunal, whom if agreed could determine/assist with any future dispute the parties may have.
There is considerable potential for the use of ENEs within private law children disputes. The Child Arrangements Programme (FPR 2010, PD12B) provides for the First Hearing Dispute Resolution Appointment to be listed between 5 and 6 weeks following the issuing of the application. However, the reality is that a further delay can ensue before the matter comes to court. It is, therefore, likely that litigants seeking a speedy determination will seek to use ENEs to resolve their disputes at early stage.