Loose Ends

The Family Procedure (Modification of Enactments) Order 2011 (SI 2011/1045) tie up a few of the loose ends and anomalies I had been wondering about, following the implementation of the Family Procedure Rules 2010. In particular, they bring part 28 on costs into effect in the FPC, and clarify the Allocation Order which provided for transfer to County Court on grounds of incapacity of an adult when the FPC had no power to appoint the OS or a litigation friend. The amendment removes the reference to the exercise of the power to transfer where there is a real risk that a party to proceedings may lack mental capacity within the meaning of the Mental Capacity Act 2005 as the FPR now make provision (in Part 15) for protected parties in relation to all three levels of court including the magistrates’ courts.

So where I had previously wondered how whether the Allocation order would continue to result in transfer because of adult incapacity notwithstanding Part 15, it seems that this is unlikely to be so.

However the preceding sub para in the Allocation Order (15(1)(g)): “may transfer where…there is a real possibility that a guardian ad litem will be appointed under rule 9.5 of the Family Proceedings Rules 1991;” remains, which seems to leave a slightly different anomaly.

Hat tip to Jordans Family Law for alerting me to this – the SI was only laid before Parliament on 30 March, so although I initially thought I must have missed it, in fact it seems to have been a bit of a Parliamentary afterthought!

PS My previous posts on the FPR can be found here.

Practice Directions to the New Family Procedure Rules 2010 – Mediation PD

I posted recently about the Practice Directions to the new Family Procedure Rules which come into force on 6 April. Practice Direction 3A Pre-Application Protocol for Mediation Information and Assessment has now been published along with a guidance note and Compliance Form FM1.

It provides that parties to private family proceedings must prior to issue have explored whether mediation might be an alternative method by which to resolve their dispute by attending a mediation information and assessment meeting. If they have not done this the court is likely on first hearing to adjourn pending attendance at such a meeting which constitutes non-compliance with the Protocol.

There are of course exceptions to the requirement to attend a Mediation information and assessment meeting. They are entirely those that I would expect to see, and they are numerous. For example domestic violence (but only where the police have been involved or an order has been sought in the last 12 months), urgency (but only where there is a risk to life, liberty or physical safety or to the home AND where any delay caused by mediation would cause a risk of significant harm to a child, significant risk of a miscarriage of justice, unreasonable hardship or irretrievable problems in dealing with the dispute (such as an irretrievable loss of significant data – which I take to be a nod to post-Imerman search orders).

It does strike me as odd that in a d.v. case where an applicant has fled or is fleeing the home and has yet to issue FLA Pt IV proceedings (or has no need of doing so because they are safely elsewhere, or who is too petrified to do so) one party wishes to issue s8 proceedings they would need to CROSS THRESHOLD in order to bypass mediation (the alternative would be to go through the motions and secure confirmation from a mediator that the case is unsuitable but this causes delay). I appreciate that there are a number of other exceptions which might apply to an application by the person fled from (for example that the whereabouts of the other party are unknown to the applicant), but the reference to significant harm nonetheless remains anomalous.

The problem with this long list of exceptions (and the almost comparably long list of exceptions to the exceptions) is that it may be rather more of a leaky bucket than a sieve. It’s practical effect is likely to be an increase in paperwork and irritation in many cases, and possibly an obstacle to justice in others, and I suspect (but am happy to be proved wrong) that it will not ultimately result in all that many more people using mediation, nor that it will result in a significant upshift in the numbers of people reaching durable, safe and fair agreements. I suppose it’s worth a try and I will embrace it, promote it, encourage my clients to comply with the spirit of it – but I’m skeptical.