Bloomsbury Family Law Seminars

Mediation law: negotiation and agreement

Mediation forms a fundamental part of any proceedings for family – married and unmarried – breakdown. But to what extent can mediation and court proceedings work alongside one another: eg to help to try to reach agreement on issues for trial (if not final agreement on all issues)?

What is mediation? How important to it is the without prejudice rule? What is the rule; and what are the exceptions to it (Unilever plc v The Procter & Gamble Co (2000); Ofulue v Bossert (2009) and Oceanbulk (2010) cases)? Without prejudice privilege only applies where the negotiation is proximate to litigation (Framlington Group Ltd & Anor v Barnetson (2007)), as can be seen equally to financial relief as to other civil proceedings.

Mediation, without prejudice immunity and settlement: what is the effect of agreement in correspondence (and how far does this apply to a litigant in person)? Disclosure and consent orders apply as with any other family litigation in the mediation context. And mediation may be called to assist where parties seek to vary an existing pre-marital agreement (Radmacher (formerly Granatino) v Granatino (2010)).


Evidence and family proceedings

Rules of evidence apply equally in family as in any other civil litigation (and one or two criminal evidence rules apply too…). This introduction to evidence in family cases explains the burden and standard of proof (especially in care proceedings: most recently in Re B (Children) (2008) per Lord Hoffman and Lady Hale).

Some facts need not be proved: admissions generally bind the party who admits; and issue estoppel has its place in family proceedings (less so, perhaps in children proceedings). Disclosure creates its own separate rules for financial relief and children proceedings. And running through all aspects of disclosure are rules in relation to privilege – especially legal professional privilege and without prejudice immunity – and confidentiality (see separate seminar).

Rule specifically provide for control of evidence in family proceedings (FPR 2010, r 22.1(1)). Special rules apply for evidence for children (Re W (Children) (Abuse: Oral Evidence) (2010)) and vulnerable witnesses; and special case management arrangements may be needed for both. Of expert evidence: the rules (FPR 2010, Pt 25) are defined by the common law. In civil proceedings and children and other family proceedings they diverge slightly: differences will be explained.


Human rights in family law

An understanding of human rights is pervasive to all litigation; and family proceedings are no exception. Central to the subject is European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 introduced formally into English courts by Human Rights Act 1998 (with effect from October 2000).

Charter of Fundamental Rights of the European Union goes a little further than the European Convention 1950. The present plan is that the Charter will be abolished with Brexit. What difference will this make to family proceedings (especially children law)?

The seminar will explain how claims arise and proceed under Human Rights Act 1998, especially in judicial review (Civil Procedure Rules 1998, Pt 54) and on appeal; and how this applies in family proceedings. Principles of claim follow Anufrijeva and anor v Southwark London Borough Council (2003). The remedy in a Human Rights Act 1998 claim is damages; but in eg civil proceedings how does the legal aid statutory charge (Legal Aid Sentencing and Punishment of Offenders Act 2012, s 25) apply if damages are awarded from a claim arising from care proceedings. This developing area of law will be discussed in the light of recent Legal Aid Agency guidance.


Emergency remedies in family proceedings

In this developing area of family law, procedurally the variety of interim remedies proceeds nder FPR 2010, Pt 20 (derived from Civil Procedure Rules 1998, Pt 25). The same broad rules as to service, notice and enforcement apply equally to domestic abuse (Family Law Act 1996, Pt 4); financial relief (including eg freezing and search orders (Civil Procedure Act 1997, s 7; Matrimonial Causes Act 1973, s 37(2))); children proceedings orders; and reporting restrictions orders.

How urgent is ‘urgent’ to override rules as to notice (National Commercial Bank v Olint Corp Ltd (Jamaica) (2009); and see FPR 2010, r 20.4); and when might notice destroy the basis of any order (see RROs and super-injunctions (briefly))?

The extent of availability of non-molestation orders (on application by a local authority) has recently been reviewed by the Court of Appeal in Re T (A Child) (2017); and the subject of domestic abuse is being reviewed by a government interdepartmental group (Home Office and Ministry of Justice). The question of cross-examination of a complainant by her alleged abuser remains as critical – and unresolved – as ever (Re A (A Minor: Fact Finding; Unrepresented Party) (2017); but see criminal proceedings arrangements under Youth Justice and Criminal Evidence Act 1999, s 38(4)).

And when enforcement of a family proceedings order arises: some factors for pleading pursuing the application will be reviewed (see eg Egeneonu v Egeneonu (2017)).


Disclosure: privilege and confidentiality

Disclosure law and rules derive from civil proceedings generally (see especially Civil Procedure Rules 1998, Pt 31) and are dictated by the common law. Family proceedings have developed some of its own rules; but mostly it depends on the common law – as will be fully explained, and often as codified by CPR 1998, Pt 31. Confidentiality is entirely a creature of the common law. Disclosure may be restricted by public interest immunity (for procedure see FPR 2010, r 21.3).

This seminar will explain the sources for disclosure law and will show how different parts of the procedural rules are to be found in Family Procedure Rules 2010. Confidentiality – of which privilege, especially legal professional privilege – will be explained and applied in a family law context. The extent to which European Convention 1950 – especially Arts 6, 8 and 10 – influences family proceedings will be born in mind throughout the seminar. Confidentiality and privilege may in limited circumstances be overridden. And in particular emphasis will be given to confidentiality and the rights of children (Gillick v West Norfolk (1985)).

Disclosure applies between parties. Non-party disclosure (FPR 2010 r 21.2 derived from CPR 1998, r 31.19) where statute allows, and the limitation of such disclosure will be explained. And when it’s all over: to what extent may a party release documents from family proceedings to a third party (‘implied undertaking’, CPR 1998, r 31.22 and Clibbery v Allan (2002)).

For more information or to book a space on one of the seminars, click here.

Written by Ellie MacKenzie

Subscribe to the Bloomsbury Professional Law Newsletter

Law Online

Bloomsburyprofessionallaw Online research for solicitors and barristers practising in English law Free Trial

Need Help?

Bloomsburyprofessionallaw If you need any help with finding publications or just ask a question. Talk to an Advisor: 01444 416119
or send us a message