Family dispute – off to Court we go. That is the only option, isn’t it? Answer: No!!

The recent Judgment of Recorder Allen QC, a part time county court judge in WL v HL, published last month (March 2021) serves as a timely reminder of the benefits of considering family alternative dispute resolution (ADR) and not going to court.

There is a common misunderstanding that all family disputes must go to court to be resolved but there are an increasing number of alternatives which can both reduce legal fees and also bring about a swifter resolution. This is commended not least because the courts are overwhelmed with cases, judicial availability is scant, meaning that it can take an incredibly long time not just to get your matter listed (given a date) but also to be heard. On top of that given that many family cases require a number of hearings, the delays between hearings can be months.

Often as family solicitors, we see cases go to court to determine discrete issues i.e. very narrow points, which with the right advice and/or signposting could have been resolved without the emotional and financial cost of going to court. WL v HL was one such case.

Brief Case Summary

In 2018 an order had been made by consent in financial proceedings between the parties. This provided for HL to pay WL one-half of the family’s nursery costs and, from the date that the child started primary education, one-half of her reasonable childcare costs. In June 2020, the full-time Nanny the child had had since birth resigned. Thereafter, WL employed the services of a number of people to replace the nanny on a more informal but nevertheless fee-paying basis. HL stopped making any payments towards the cost of childcare and this led to WL issuing an enforcement application which was reluctantly dismissed but the Judge reserved any further applications by the parties to himself.

WL subsequently issued further applications which all came before the same Judge. At the hearing the Judge recognised that the Court’s involvement would continue to generate costs disproportionate to the issue between the parties who by that time had already spent more than £15,000 on legal fees and estimated incurring a similar sum by the next hearing. As such, he exercised his case management powers under Family Procedure Rule (FPR) Part 3, in particular Rule 3.3 which states: -

1. the Court must consider, at every stage in the proceedings, whether non-court dispute resolution is appropriate;

and further, having determined non-court dispute resolution was appropriate the Judge adjourned the proceedings for the parties to gather information and advice on non-court dispute resolution and engage in this if they agreed to do so

Given the parties subsequent engagement in non-court dispute resolution the Judge continued to adjourn the proceedings to enable the parties to reach an agreement between themselves firstly in mediation and thereafter directly.

The Judge later indicated he was prepared to resolve a narrow issue between the parties regarding the drafting of the order “on the papers” i.e. in the absence of the parties and their lawyers. In his Judgment Recorder Allan QC stated: -

“I believe that my use of the court’s FPR Part 3 powers in this case encouraged the parties to consider and enter non-court dispute resolution and my request for fortnightly updates assisted them in reaching settlement even though agreement was not reached in mediation but was reached thereafter between the parties themselves. My order took the matter out of the court arena and the inevitable focus on the next court hearing. It allowed the parties to maintain a direct dialogue…. and eventually agree a solution that worked for them as parents for their young children (rather than having one imposed) but, importantly, in the context of knowing that I was maintaining an overview of the progress of their negotiations.

Even though I ultimately had to decide a discrete issue on paper I am confident that adopting the approach I did led to a better, quicker and less expensive outcome than would have otherwise been the case”.

Presently there is no obligation upon parties in family proceedings to engage in non-court dispute resolution. Although the court can express its disapproval it is powerless to compel parties to engage unless they agree. This contrasts with civil disputes where the court can impose a stay (a temporary halt) to proceedings in favour of alternative dispute resolution taking place whether all the parties agree to this or not.

This judgment has been published at the request of the National Lead Judge of the Financial Remedy Courts, Mr Justice Mostyn, a senior High Court Judge, who previously suggested that family and civil matters should be placed on the same footing. At the time of writing no amendments to the Family Proceedings Rules have been made.

Whilst the court’s approach in this matter reflects the exercise of judicial discretion, it also serves as a timely reminder of the good sense of exploring all other options and keeping matters out of the court system if possible. An application to the Court, although right in some circumstances, can be misguided in others. If negotiations directly or through solicitors have failed or are gridlocked, or if a court matter is not progressing quickly enough, it makes emotional and financial sense to consider non-court dispute resolution e.g. mediation, collaborative law, or a private financial dispute resolution hearings and/or arbitration may be more appropriate.

If you find yourself needing family legal advice and wish to consider resolving any dispute that you may have outside of, or even in the court arena, then please contact the Family Department at Clifton Ingram, we can guide you through all the alternative dispute resolution options. We have lawyers who are trained mediators and trained as Collaborative lawyers. We have access to any number of excellent barristers and trained arbitrators.

We can help at any stage of the process, whether court proceedings have been issued or not. Details of our firm’s mediators and Collaborative lawyers can be found here.

This article is written as a general guide and believed correct at the date of publication. If you need further or more specific information relating to your situation, please get in touch with us.

AUTHOR: Joanne Backwith and Sarah Benfield