Our articles are written by experts in their field and include barristers, solicitors, judges, mediators, academics and professionals from a range of related disciplines. Family Law provides a platform for debate for all the important topics, from divorce and care proceedings to transparency and access to justice. If you would like to contribute please email editor@familylaw.co.uk.
Spotlight
A day in the life Of...
Read on

The Family Solutions Initiative – a response to a system in crisis

Date:26 FEB 2021
Third slide
Solicitor, mediator and parenting coordinator
Barrister, arbitrator and mediator

The Family Solutions Group (‘FSG’) report, entitled What about me?: Reframing Support for Families following Parental Separation leaves us in no doubt as to the problems which are currently facing the family justice system which is, we are told, ‘in crisis’.

A key and unifying factor for the crisis is the volume of applications which find their way before the family court. Applications are ‘growing exponentially’. Those pressures which already exist are exacerbated by the current global health pandemic.

In the longer term, it is clear that proposals will be made for ‘an overhaul of the system’. However, until such time, the Family Solutions Group reminds us that current ‘child focussed legislation, rules and professional duties’ already provide a framework for practitioners and that the proper and consistent use of this framework (by lawyers and courts alike) could have a significantly positive impact on family dispute resolution.

One such example is the Surrey Initiative which was cited in the FSG report as ‘a new protocol … to facilitate the court’s duty to consider … non court dispute resolution options’ (FSG report p 159). The Surrey Initiative continues to gather momentum across the country.

Consequently, within this article we build upon and propose an amended version of the Surrey Initiative, which goes by the working title of The Family Solutions Initiative (‘The FSI’). The FSI represents a concerted effort to re-focus attention on current legislation, rules and professional duties with a view to encouraging parties to meaningfully engage in out of court processes with the aim of avoiding judicial determination of disputes.

The FSI recognises the cultural shift to move away from the language of ‘dispute resolution’ to ‘solution’ focussed processes.

The FSI is an initial response to the very positive feedback which has been received in respect of the Surrey Initiative and incorporates many ideas arising from discussions with practitioners who have been trialling the use of the Surrey Initiative in their own practices and local areas.

What we have tried to do

We have sought to provide practitioners with:

(i)      A general guide for practitioners; and

(ii)     A set of template letters, suitable for adaptation, which may be used in both children and finance cases.

Before considering the guide and template letters it is necessary to consider the ambit of the FSI and possible sanctions for non-compliance.

Application to finance and children cases

Whereas the FSG report considered that the Surrey Initiative may have greater application to family finance cases, the FSI has been adapted with consideration of both finance and children cases in mind.

It is acknowledged that each respective discipline necessitates consideration of different factors which, in turn, requires practitioners to identify and apply different approaches to dispute resolution. One size does not fit all.

Whilst a national response is required by all of those who operate within the family justice system, it is recognised that some geographical areas may have greater access than others to a diversity of suitable methods and processes for resolution of family issues.

Practitioners are encouraged to familiarise themselves with professional networks who are able to assist in the resolution of family issues with a view to being able to give consideration to the same in the course of their everyday work.

It is hoped that, over time, practitioners and courts will become increasingly familiar with the work undertaken by such resolution specialists within their local areas and gain a better understanding of those that ‘work’ (and those that have less success) in any given set of circumstances.

The main focus of the FSI is seeking to resolve issues without need for recourse to the court process. However, given that Part 3 of the Family Procedure Rules 2010 (‘FPR 2010’) requires ongoing consideration to be given to non-court dispute resolution, we are of the view that the FSI has application, even once proceedings have been commenced, with all cases having the potential to benefit from robust and focused Part 3 specific judicial case management.

Application to the cooperative parenting pathway

At present, the FSI relates only to those cases which may properly be described as following the cooperative parenting pathway recognising, as we must, that the pathways proposed within the FSG report should not come to be considered as ‘mutually exclusive’ (internal p 57 para 208) but also noting the complex picture surrounding the use of resolution processes within the context of the need for a safe system for those who are or have been vulnerable to domestic abuse (see paras 209–222).

Possible sanctions for non-compliance

The FSI envisages the court, in both finance and children matters, giving consideration to the conduct of the parties specifically in respect of their willingness (or otherwise) to engage in methods of non-court based issue resolution.

Currently, in certain circumstances, the court’s powers range from adjourning proceedings generally to making orders for costs in the event that the court determines proposals for out of court resolution to have been unreasonably refused or otherwise not engaged with.

Such sanctions are, relatively, rarely considered or used. However, in order to seek to ensure compliance with the FSI, it is anticipated that the court will be invited by parties to consider the conduct of the other party in this regard.

Clearly, practitioners play a key role in providing their clients with sufficient information from which to base considered decision as to their engagement or otherwise in non-court based processes.

The failure of a practitioner to assist a client’s decision making in this regard is likely to result in negative repercussions for a practitioner in certain circumstances.

Therefore, as is set out below, practitioners are encouraged to ensure that non-court based resolution processes are actively considered at all stages of the process from initial enquiry until, if relevant, the conclusion of the proceedings.

Alternatively, as is seen below, clients and practitioners will be required to explain the reasoning behind their non-engagement with non-court based processes which have been reasonably proposed.

At present the extent to which a practitioner’s failure to act in accordance with the FSI may leave them exposed to sanction or censure by their relevant professional body is less clear. However, practitioners should be made aware that this issue is under active consideration by representative and regulatory bodies.

The Family Solutions Initiative

Practitioners – what you need to know

Remind yourself of the requirements of Part 3 FPR (see Annex 1 at the end), ensure that you have made your client aware of Part 3 and the range of out of court options available, evidencing that you have done so throughout the conduct of the case.

Remember consideration of Part 3 is continuous (FPR r 3.31) – it is not just a one-off requirement prior to issuing proceedings – and so consideration must be evidenced throughout the entire conduct of the case.

Article continues below...
Emergency Remedies in the Family Courts
Emergency Remedies in the Family Courts
"A very good tool for the busy family lawyer"...
£519.99
Family Law
Family Law
"the principal (monthly) periodical dealing with...
£389
Family Law Webinars
Family Law Webinars
One hour of training for just £75+VAT. Our 2019...

Failure to consider non-court options with your client may result in increased costs for your client and/or the inability for costs to be recovered from the other side.

(1)     Invite other lawyer / LiP to engage in non-court process(es) setting out in open correspondence your rationale as to why one / a number of processes may be suitable. For ease we have termed this correspondence/communication the ‘Part 3 Communications’ and suggested draft letters are set out in Annex 2 at the end of this article. In part we draw inspiration from the firmly established practise of the formal exchange of open correspondence pursuant to the Civil Procedure Rules 1998, Pre-Action Conduct Protocol which conventionally includes an offer to try and resolve matters by way of non-court dispute resolution. We also note that the recently appointed Master of the Rolls, Sir Geoffrey Vos, has indicated, at the start of his term in office, the priority he places on non-court dispute resolution for civil disputes. Further, he has canvassed, in the preface to the 2020 White Book, whether it is time to revisit the decision of Halsey v Milton Keynes General NHS Trust; Steel v Joy [2004] EWCA Civ 576, which held that a court could not compulsorily require people to attend mediation.

(2)     If invited to engage in a non-court process, consider the various process options with your client and reply in open correspondence to all invitations within 14 days (requesting an additional 7 days if required). The response to include proposed arrangements to engage in a non-court process, an offer of alternative non-court process(es) setting out your rationale or an explanation as to why the invitation is being reasonably declined and why you are not offering an alternative non-court process(es).

(3)     NB correspondence/discussions as per (1) and (2) above (‘the Part 3 Communications’) must be open. Some practitioners will prefer to correspond but equally some prefer to speak with the other lawyer/LiP which is encouraged. In the absence of written correspondence a note should be taken of the oral, open, Part 3 Communications.

(4)     Part 3 Communications must be copied to the client at the same time they are written and / or received.

(5)     At hearings the court may be invited to consider a copy of the Part 3 Communications. Parties and their lawyers must expect therefore to explain why a non-court process is not being used.

(6)     The court has the power to stay/adjourn the proceedings to enable the parties to engage (or explore the possibility of engaging) in a non-court process (FPR, r 3.4(1)).

(7)     The court may increasingly express its judicial displeasure, including via the making of costs orders, if there have been no reasonable invitations to engage or such invitations have either been ignored or unreasonably refused (eg Mostyn J JB v DB [2020] EWHC 2301 (Fam) at [28]–[32] and HHJ Wildblood QC in Re B (A Child) (Unnecessary Private Law Applications) [2020] EWFC B44).

(8)     There are anecdotal reports of some courts engaging in the above process and similar. By way of illustration, we are aware of a recent case in the Central Family Court which was stayed for the parties to seek to resolve via non-court dispute resolution, with the court calling the parties back a few weeks later for a progress update. It is recognised that there will be regional variation in judicial and professional working practises although initial views are promising.

(9)     An objection to a particular strand of non-court DR was the alleged finality and difficulty of appealing an arbitral decision pursuant to an IFLA arbitration. This objection evaporated with the Court of Appeal’s decision in Haley v Haley [2020] EWCA Civ 1369 holding that an appeal from an arbitrator in financial remedy proceedings would adopt the same approach as would be adopted for an appeal against a first instance judge, thereby promoting fairness over finality. We submit that there is no reason why the same approach will not be taken on appeals in respect of children arbitrations.

(10)   The modern Family Court may draw inspiration from the traditional relationship between the court and an arbitral tribunal, with the court being there to supervise and support the orderly progression of the arbitration as and when it may be rarely called upon to do so. The Family Court could develop a habit of supervising and supporting all forms of non-court processes eg providing a date by when private FDRs must have taken place and directing open offers to follow any failed private FDR.

What you might expect of the court

(1)     Awareness of and support for this initiative.

(2)     Increased awareness of and knowledge about the sophisticated range of out-of-court options available both within and outside the local court area.

(3)     Judicial encouragement for the parties to explore and engage in an out-of-court process to include all and any practical arrangements to be made eg funding, the choice of resolution professional, geography etc;

(4)     Justification as to why a matter is in court ie parties and their lawyers may increasingly be required to explain why the case is within the court system;

(5)     A request to see the Part 3 Communications with judicial comment thereon;

(6)     An increased use of adjournments/stays to allow time to explore and hopefully engage in an appropriate process;

(7)     Increased consideration of the use of ‘Ungley Orders’. An Ungley Order was expressly approved by the Court of Appeal in the case of Halsey (above). It is named after a Chancery Master, Master Ungley, whose name became synonymous with the making of such orders. It provides

‘The parties … shall consider whether the case is capable of resolution by ADR. If any party considers that the case is unsuitable for resolution by ADR, that party shall be prepared to justify that decision at the conclusion of the trial, should the judge consider that such means of resolution were appropriate, when he is considering the appropriate costs order to make.

The party considering the case unsuitable for ADR shall, not less than 28 days before the commencement of the trial, file with the court a witness statement without prejudice save as to costs, giving reasons upon which they rely for saying the case was unsuitable.’

Concluding comments

In evolving the Surrey Initiative into the FSI, we have accepted the invitation from the FSG report to seek to develop the use of non-court processes within the family justice system. It is respectfully suggested that the judiciary, at all levels, have a hitherto unrealised potential to actively encourage, support and supervise all forms of non-court resolution process. We would be delighted if the courts were able to invigorate the use of part 3 and to adopt, further develop, refine and adapt, as may be required, the ideas contained within the FSI.

Annex 1: Part 3

THE COURT’S DUTY AND POWERS GENERALLY

Scope of this Chapter

3.2

This Chapter contains the court's duty and powers to encourage and facilitate the use of non-court dispute resolution.

The court's duty to consider non-court dispute resolution

3.3

(1)     The court must consider, at every stage in proceedings, whether non-court dispute resolution is appropriate.

(2)     In considering whether non-court dispute resolution is appropriate in proceedings which were commenced by a relevant family application, the court must take into account –

(a)     whether a MIAM took place;

(b)     whether a valid MIAM exemption was claimed or mediator's exemption was confirmed; and

(c)     whether the parties attempted mediation or another form of non-court dispute resolution and the outcome of that process

When the court will adjourn proceedings or a hearing in proceedings

3.4

(1)     If the court considers that non-court dispute resolution is appropriate, it may direct that the proceedings, or a hearing in the proceedings, be adjourned for such specified period as it considers appropriate –

(a)     to enable the parties to obtain information and advice about, and consider using, non-court dispute resolution; and

(b)     where the parties agree, to enable non-court dispute resolution to take place.

(2)     The court may give directions under this rule on an application or of its own initiative.

(3)     Where the court directs an adjournment under this rule, it will give directions about the timing and method by which the parties must tell the court if any of the issues in the proceedings have been resolved.

(4)     If the parties do not tell the court if any of the issues have been resolved as directed under paragraph (3), the court will give such directions as to the management of the case as it considers appropriate.

(5)     The court or court officer will –

(a)     record the making of an order under this rule; and

(b)     arrange for a copy of the order to be served as soon as practicable on the parties.

(6)     Where the court proposes to exercise its powers of its own initiative, the procedure set out in rule 4.3(2) to (6) applies.

Annex 2: Suggested draft correspondence

Below we set out suggested draft correspondence for use in finance and children matters. The draft correspondence has also been tailored to the requirements of both professional ‘opponents’ as well as litigants in person.

In its current iteration (and in contrast to the original Surrey Initiative), the FSI does not include requirement of certification of Part 3 Communications and correspondence between the parties. We consider that professional obligations relating to the sharing of correspondence with clients should, at present, be sufficient to ensure that clients are made fully aware of non-court based resolution proposals made and received.

Additionally, the FSI envisages that Part 3 correspondence will be placed before the court as a matter of course which, of itself, provides further reassurance that parties will engage in the FSI process without the need for certification of Part 3 Communications and correspondence.

FINANCE – PROFESSIONAL CLIENT LETTER

Dear [INSERT]

Open invitation to engage in out-of-court resolution process(es)

I have been contacted by Mr/Mrs X in respect of financial issues associated following the relationship breakdown with your client Mr/Mrs X.

With that in mind, Mr/Mrs X proposes [INSERT PROCESS] which would be undertaken by [INSERT NAME OR NAMES OF THOSE PROPOSED].

The costs of [INSERT PROCESS] will be [INSERT APPROXIMATE COST]. Mr/Mrs X suggests he/she will fund [INSERT PROCESS] /or that such costs should be shared between our clients.

It is hoped that, by completing [INSERT PROCESS], arrangements for the finances may be finalised much sooner than if the Family Court became involved.

We invite you to take your client’s instructions on the above proposals within 14 days of receipt of this letter. In the event that Mr/Mrs X suggests alternative ways by which they may resolve matters please do not hesitate to let me know so that they may be discussed and considered with Mr/Mrs X.

For the avoidance of doubt, a copy of this correspondence and any reply received in response to it will be shared with our client.

Finally, you will be aware, the court ‘must consider, at every stage in proceedings, where non-court dispute resolution is appropriate’.

In the event proceedings are commenced and if, in the view of Mr/Mrs X, Mr/Mrs X has unreasonably refused to engage in non-court dispute resolution as proposed by Mr/Mrs X, then Mr/Mrs X reserves the right to:

(i)      invite the court to consider [INSERT PROCESS] at the next hearing;

(ii)     invite the court to adjourn the proceedings to allow for Mr/Mrs X to obtain more information and advice in respect of [INSERT PROCESS] with a view to this taking place;

(iii)   draw to the court’s attention all correspondence between the us in respect of non-court dispute resolution; and,

(iv)    if appropriate, seek the costs associated with that hearing /other hearing which have taken place.

(v)     Invite the court to make an ‘Ungley Order’ direction. This would require you or your client to give a ‘without prejudice save as to costs’ statement, setting forth any reasons why you state that dispute resolution is inappropriate in this instance. The court can then consider this when it comes to make a decision about costs at the end of any trial.

Please do not hesitate to contact me to discuss further should you wish to do so but be aware that any note of those discussions may, in due course, be placed before the court.

cc my client Mr/Mrs X

FINANCE – LIP LETTER

Dear [insert]

Open invitation to engage in out-of-court resolution process(es)

I write to introduce myself and to inform you that I have been contacted by Mr/Mrs X in respect of financial issues associated with your relationship breakdown.

Mr/Mrs X would prefer, if at all possible, to resolve matters between you without the need to involve the court.

With that in mind, Mr/Mrs X proposes [[INSERT PROCESS] which would be undertaken by [INSERT NAME OR NAMES OF THOSE PROPOSED].

Please also see their CVs which are attached to this letter.

The costs of [INSERT PROCESS] will be [INSERT APPROXIMATE COST]. Mr/Mrs X suggests he/she will fund [INSERT PROCESS] /or that such costs should be shared between you.

It is hoped that, by completing [INSERT PROCESS] your financial affairs may be resolved in a less costly and acrimonious manner than through the court.

We invite you to respond to Mr/Mrs X’s proposals within 14 days of receipt of this letter.

In the event that you suggest alternative ways by which the issues between you may be resolved without recourse to the court, please do not hesitate to let me know what you suggest so that they may be discussed and considered with Mr/Mrs X.

For the avoidance of doubt, a copy of this correspondence and any reply received in response to it will be shared with our client.

Finally, the Family Court Rules also state that the court ‘must consider, at every stage in proceedings, where non-court dispute resolution is appropriate’.

In the event that the court does become involved with the issues between yourself and Mr/Mrs X and the court considers that either of you has unreasonably refused to engage in efforts to resolve matters then the court has the power to:

(i)      Adjourn the case with a view to allow for agreement to be reached as suggested by either yourself or Mr/Mrs X;

(ii)     consider the correspondence between yourself and Mr/Mrs X;

(iii)   possibly make the person who has unreasonably refused to engage in efforts to resolve the matter pay the costs of any court hearings which need not have taken place.

(iv)    make an ‘Ungley Order’ direction. This would require you to give a ‘without prejudice save as to costs’ statement, setting out any reasons why you state that a non-court based resolution process is inappropriate in this instance. The court can then consider this when it comes to make a decision about costs at the end of any trial.

As requested above, please let me have your response to this letter within 14 days of receipt. You may wish to seek legal advice if you have not already done so.

If you have any questions, please do not hesitate to contact me but be aware that, should you do so, any note of the conversation between us may be placed before the court.

cc my client Mr/Mrs X

Encs CVs

CHILDREN – PROFESSIONAL CLIENT LETTER

Dear [INSERT]

Open invitation to engage in out-of-court resolution process(es)

I have been contacted in by Mr/Mrs X in respect of [INSERT CHILDREN’S NAMES].

Mr/Mrs X informs me that there are difficulties between the parents in managing arrangements for the children [OR INSERT SPECIFIC ISSUE IF APPROPRIATE].

As you will be aware, the Family Procedure Rules state:

‘family disputes … are often best resolved through discussion and agreement, where that can be managed safely and appropriately.’

We are informed that there is no reason why arrangements for the children cannot be resolved through discussion and agreement and managed safely and appropriately.

With that in mind, Mr/Mrs X proposes [[INSERT PROCESS] which would be undertaken by [INSERT NAME OR NAMES OF THOSE PROPOSED].

The costs of [INSERT PROCESS] will be [INSERT APPROXIMATE COST]. Mr/Mrs X suggests he/she will fund [INSERT PROCESS] /or that such costs should be shared between our clients.

It is hoped that, by completing [INSERT PROCESS], arrangements for the children may be finalised much sooner than if the Family Court became involved.

We invite you to respond to Mr/Mrs X’s proposals within 14 days of receipt of this letter. In the event that Mr/Mrs X suggests alternative ways by which they may resolve their issues in respect of arrangements for the children, please do not hesitate to let me know so that they may be discussed and considered with Mr/Mrs X.

For the avoidance of doubt, a copy of this correspondence and any reply received in response to it will be shared with our client.

Finally, you will be aware, the court ‘must consider, at every stage in proceedings, where non-court dispute resolution is appropriate’.

In the event proceedings are commenced and if, in the view of Mr/Mrs X, Mr/Mrs X has unreasonably refused to engage in non-court dispute resolution as proposed by Mr/Mrs X then Mr/Mrs X reserves the right to:

(i)      invite the court to consider [INSERT PROCESS] at the FHDRA/other hearing;

(ii)     invite the court to adjourn the proceedings to allow for Mr/Mrs X to obtain more information and advice in respect of [INSERT PROCESS] with a view to this taking place;

(iii)   draw to the court’s attention any correspondence between us in respect of non-court dispute resolution; and,

(iv)    if appropriate, seek the costs associated with that hearing /other hearings which have taken place.

(v)     Invite the court to make an ‘Ungley Order’ direction. This would require you or your client to give a ‘without prejudice save as to costs’ statement, setting forth any reasons why you state that dispute resolution is inappropriate in this instance. The court can then consider this when it comes to make a decision about costs at the end of any trial.

Please do not hesitate to contact me to discuss further should you wish to do so but be aware that any note of those discussions may, in due course, be placed before the court.

cc my client Mr/Mrs X

CHILDREN – LIP LETTER

Dear [INSERT]

Open invitation to engage in out-of-court resolution process(es)

I write to introduce myself and to inform you that I have been contacted by Mr/Mrs X in respect of [INSERT CHILDREN’S NAMES].

Mr/Mrs X informs me that there have been difficulties between you about managing arrangements for the children [OR INSERT SPECIFIC ISSUE IF APPROPRIATE]

Mr/Mrs X would prefer, if at all possible, to resolve any differences between you without the need to involve the court. Indeed, the Family Court Rules state that ‘family disputes..are often best resolved through discussion and agreement, where that can be managed safely and appropriately.’

With that in mind, Mr/Mrs X proposes [[INSERT PROCESS] which would be undertaken by [INSERT NAME OR NAMES OF THOSE PROPOSED].

Please also see their CVs which are attached to this letter.

The costs of [INSERT PROCESS] will be [INSERT APPROXIMATE COST]. Mr/Mrs X suggests he/she will fund [INSERT PROCESS] /or that such costs should be shared between you.

It is hoped that, by completing [INSERT PROCESS] arrangements for the children may be finalised much sooner than if the Family Court became involved. Any delay in concluding arrangements for children is not in the children’s best interests.

We invite you to respond to Mr/Mrs X’s proposals within 14 days of receipt of this letter.

In the event that you suggest alternative ways by which the issues and difficulties between you may be resolved, please do not hesitate to let me know what you suggest so that they may be discussed and considered with Mr/Mrs X.

For the avoidance of doubt, a copy of this correspondence and any reply received in response to it will be shared with our client.

Finally, the Family Court Rules also state that the court ‘must consider, at every stage in proceedings, where non-court dispute resolution is appropriate’.

In the event that the court does become involved with the issues between yourself and Mr/Mrs X and the court considers that either of you has unreasonably refused to engage in efforts to resolve matters then the court has the power to:

(i)      Adjourn the case with a view to allow for agreement to be reached as suggested by either yourself or Mr/Mrs X;

(ii)     consider the correspondence between us;

(iii)   possibly make the person who has unreasonably refused to engage in efforts to resolve the matter pay the costs of any court hearings which need not have taken place;

(iv)    make an ‘Ungley Order’ direction. This would require you to give a ‘without prejudice save as to costs’ statement, setting out any reasons why you state that non-court based resolution is inappropriate in this instance. The court can then consider this when it comes to make a decision about costs at the end of any trial.

As requested above, please let me have your response to this letter within 14 days of receipt.  You may wish to seek legal advice if you have not already done so.

If you have any questions, please do not hesitate to contact me but be aware that, should you do so, any note of the conversation between us may be placed before the court.

cc my client Mr/Mrs X

Encs CVs

 

 

Categories:
Articles