Top 100 UK law firm Moore Barlow has launched “The Surrey Initiative” seeking a reform to the Family Procedure Rules (FPR) that will substantially encourage awareness and adoption of out-of-court dispute resolution options in both private law children matters and financial remedies.
The proposed reform to Part 3 of the FPR would see cases directed away from court by increasing the court’s power to refer a matter into an Alternative Dispute Resolution (ADR) process with sanctions where an out-of-court process has either failed to be considered or been unreasonably refused.
If implemented, the proposed reform promises to revolutionise the family law process by improving the experience and outcome of separating and divorcing families. It will also significantly ease the burden upon the already overstretched court system by allowing time for those cases that genuinely require state intervention or adjudication.
Only last week HHJ Wildblood QC sitting in the Bristol Family Court in Re (B) (a child) (unnecessary Private Law Applications) said:
“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 the 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.”
The Surrey Initiative is spearhead by Karen Barham, Mediator, Parenting Coordinator and Consultant in the Family team at Moore Barlow. In 2016 she was awarded the national Resolution John Cornwell award for outstanding work in helping separating families. Karen is firmly of the view that most families can be assisted out of court by utilising the existing skills of family lawyers and other professionals (i.e. in mediation, collaborative law, early neutral evaluation, private family dispute resolution, arbitration etc).
Karen was invited to advance her proposal by forming part of the family solutions group for Mr Justice Cobb’s Private Law Working Group reviewing the Child Arrangements Programme, which is due to report shortly.
The pressures on the Family Court are unrelenting – everyone keeps saying it – we simply cannot go on. Despite this, individuals and lawyers continue to cling to the courts, despite there now being a sophisticated and in many cases affordable suite of out-of-court options. Part 3 of the FPR as it stands is not working; at best it is paid lip service. It lacks teeth and rigour.
Starting in Surrey we are encouraging and enabling parties, their lawyers, and the courts to apply Part 3 of the Family Procedure Rules at all times, with evidence they have done so. Within the first few days of the launch colleagues in Sussex, Kent, Hampshire and London have asked how they can join the revolution.
We urge other firms across the country to join us.Karen Barham, of Moore Barlow
Further information and updates about The Surrey Initiative and the proposed Part 3 Protocol / FPR amendment, including resources and advice for practitioners, is available at here.
Advice for Practitioners – what you need to know
- This initiative applies to both children matters and financial remedies
- Remind yourself of the requirements of Part 3 FPR, ensure that you have made your client aware of Part 3 and the range of ADR options available evidencing that you have done so throughout the conduct of the case. Remember consideration of Part 3 is continuous – it is not just a one-off requirement prior to issuing proceedings – consideration must be evidenced throughout the entire conduct of the case
- Failure to consider an out of court option with your client could give rise to a client complaint, an inability to recover your fees, negligence and / or disciplinary proceedings, wasted costs orders and a breach of the Resolution Code
- Lawyers are encouraged to invite the other side to engage in an ADR process. All invitations must be responded to within 14 days (with an extra 7 days where required). All invitations and responses (‘the Part 3 communications’) must be open and contain a certificate that they have been copied to the client.
What you might expect of the court
- Awareness of and support for this initiative with increased judicial awareness of the range of out of court process options
- A firmer judicial steer towards an ADR process with directions where appropriate (e.g. how it is to be paid for, the choice of ADR professional etc)
- A requirement to show cause why the case is within the court system with the court requesting sight of the Part 3 communications and commenting thereupon
- An increased use of adjournments / stays to allow time to explore and hopefully engage in an appropriate ADR process (an Ungley Order)
- An increased willingness to vocalise judicial displeasure directed at the parties and / or lawyers with costs orders against one or both
Karen Barham is involved in The Family Solutions Group (subgroup of The Private Law Working Group (PrLWG) ). They have released this report “What about me?” – Reframing Support for Families following Parental Separation. Press release – Family Solutions subgroup of Private Law Working Group recommends a new Part 3 FPR Protocol to direct separating and divorcing families to out-of-court processes.