Family judge tells divorcing couples to use ADR before going to court

Knowles: “Unfathomable” failure to engage in ADR

A Family Court judge has told divorcing couples that the court expects them to make “a serious effort” to resolve their differences before issuing proceedings.

They should also continue to do so “at any stage of the proceedings where this might be appropriate”, said Mrs Justice Knowles.

In a ruling she gave so as to make the point, she continued: “Furthermore, I want to signal that, at all stages of the proceedings, the court will be active in considering whether non-court dispute resolution is suitable.

“Changes to the Family Procedure Rules 2010 (FPR) which are due to come into effect on 29 April 2024 will give an added impetus to the court’s duty in this regard.”

The asset base in the financial remedy proceedings before her were approaching £30m and the judge said that, despite the parties each making open offers, they “never engaged in any form of non-court dispute resolution before issuing either financial remedy or children proceedings. I regard their failure to do so as utterly unfathomable”.

They had spent £581,000 in costs to date, with projected costs of £511,400 to a final hearing, plus at least another £300,000 on the children proceedings.

Knowles J put next month’s changes in the context of last year’s Court of Appeal ruling in Churchill that the civil courts could compel parties to engage in alternative dispute resolution so long as it did not restrict their ability to proceed to a judicial hearing.

It would be “unwise” to assume that this decision was of limited relevance to family proceedings, she said.

“The active case management powers of the CPR mirror the active case management powers in the FPR almost word for word and both the civil and the family court have a long-established right to control their own processes.

“The settling of cases quickly supports the accessibility, fairness and efficiency of the civil, and I emphasise, the family justice system.”

She continued: “Though the FPR rule changes due on 29 April 2024 do not go as far as compelling parties to proceedings to engage in non-court dispute resolution, the agreement of the parties to an adjournment for that purpose will no longer be required.

“Instead, the family court may – where the timetabling of the proceedings allows sufficient time for these steps to be taken – ‘encourage’ the parties to obtain information and advice about and consider using non-court dispute resolution and ‘undertake non-court dispute resolution’.”

Knowles J said ADR was “particularly apposite for the resolution of family disputes”, saying that “family resources should not be expended to the betterment of lawyers, however able they are”.

Parties could in future expect – at each stage of the proceedings – for the court to keep under active review whether ADR was suitable.

“Where this can be done safely, the court is very likely to think this process appropriate especially where the parties and their legal representatives have not engaged meaningfully in any form of non-court dispute resolution before issuing proceedings.”

The parties before her had now agreed to try ADR and the judge said the case would have justified an adjournment were the new rules in place.

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