Lockdown and the Family Court – New Initiatives

In this blog, Director James Pirrie reflects on how cases can be dealt with outside the court arena by looking at non-court dispute resolution options and new initiatives highlighted by Recorder Allen QC’s recent judgment in WL v HL. 

When the textbook on dispute resolution is written, looking at the slow transition from:

• disputes being determined at court;
• to solutions being found away from the court

There will be some who provided the early stand-out moments on the route to the better place that we will have reached.

Recorder Allen QC was always likely to provide one of those stand-out moments and his judgment in WL v HL, released this month (March 2021) is an early blue-print in the way that situations that have ended up at court might be managed out of it to contain costs, reduce court burdens and improve outcomes.

Those outside the family law industry may be saying “nothing SO remarkable” … but it is. It is a break with how things have been done for so long. Though very much the zeitgeist, Recorder Allen QC provides a quick “how to” in the routine situation that is therefore applicable in so many cases we are encountering in our day to day work. Further, the judgment is published at the request of the National Lead Judge of the Financial Remedies Courts.  Mostyn J is intending this trail to be adopted in the management of cases.

It was only in October 2020 that Karen Barham spoke to FLiP about The Surrey Initiative. Her essential proposition (echoed by the Family Solutions Group) is that if cases are edging towards the doors of the court, then the parties should work to avoid the courts being burdened with them and the court should be proactive in redirecting all those cases that could settle elsewhere.

We can now see this process made flesh. This might be thought of as a blistering pace set against, for example, divorce reform. Here again the professionals sought improvements in the law to benefit the separating population, a campaign that started in the early 1980s and which is to become a reality … only later this year, after forty years.

We should also remember that Recorder Allen QC is operating at a time when parties cannot be required to engage in dispute resolution … engagement is dependent on the parties’ agreement. Whilst the court can express its disapproval, it is powerless in the face of litigant refusal. So he was operating in a situation presenting some challenges (hopefully shortly to be resolved in future cases with the change of the rules). And what Recorder Allen QC did was:

On 16^th December:

• Recognise that the court’s involvement in the case would generate disproportionate costs; and
• Adjourn the proceedings for the parties to gather information and engage in dispute resolution and report back.

And then to grant further adjournments on 14^th January, 29^th January, 13^th February, in effect encouraging the parties to haul their disagreement over the line to a consensus arrangement.

On the 27^th February he indicated that he would be prepared to resolve a narrow residual issue, which he did on the 5^th March 2021.

Time and again over this last year, we have seen our court service going above and beyond – but truly how fortunate we are to have someone patiently leaning back on the rope until ultimately the parties were able to narrow the points to something requiring only the most modest of judicial input. Rather than channel their efforts into the litigation, the parties found themselves taking back control over their future and no doubt building their problem-solving muscle for the resolution of further issues that may lie ahead. Truly it is a most inspiring illustration of the great exercise of judicial discretion.

Recorder Allen QC said this:

“I believe that my use of the court’s FPR Part 3 powers in this case to encourage 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 rather it being conducted in writing via their solicitors (with the potential for polarisation and the inevitable increase in costs). It also allowed them to discuss with a third party and eventually agree a solution that worked for them as parents of their young child (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 otherwise have been the case.”

From initiative to reality in a matter of months!  What else can we solve in the pressure cooker of lockdown?