ENGLAND & WALES Law and Practice Contributed by: Jeremy Levison, Miranda Green and Alexander Bartlett, Levison Meltzer Pigott
Settlements Outside Court Most cases do settle prior to a judge making a deci ‑ sion at a final hearing. An agreement between parties can never oust the jurisdiction of the court, and any agreement will always be subject to the court’s over ‑ riding responsibility to ensure that it is a fair outcome in the circumstances of the case. That is a separate question from whether it is an outcome which any given judge would have imposed, particularly in cir ‑ cumstances where the parties have entered into a nuptial agreement. In practice, it is rare that the court will refuse to endorse settlement terms, particularly terms informed by legal advice on both sides, but it is possible. Where an agreement has been reached in “open” (as opposed to without prejudice) correspondence, par ‑ ticularly between two solicitors, it would be difficult for a party to seek to resile from that agreement. In those rare circumstances, it is open for a party to apply to the court to ask that the other party show good rea ‑ son why they should not be held to the terms of the original agreement. Where agreement is reached in mediation, a summary of the agreed terms will typically be circulated on a without prejudice basis; it will not bind the parties until they have received legal advice on its terms and reaf ‑ firmed their agreement openly. 3. Child Law 3.1 Choice of Jurisdiction in Children Proceedings Jurisdiction and the Hague Convention 1996 Most commonly, the courts will have jurisdiction to deal with children matters on the basis that a child is habitually resident in England or Wales. Otherwise, there are complex rules determining jurisdictional grounds, which have been impacted by the UK’s departure from the EU. In the first instance, the courts will look to the 1996 Hague Convention. It is worth noting that there is more than one “Hague Conven ‑ tion” – references to the convention in this section shall refer specifically to the 1996 Convention.
NCDR alternatives are considered before an applica ‑ tion to the court can be made. In the summer of 2022, a process known as “one cou ‑ ple, one lawyer” was introduced. The model allows a sole solicitor to advise both parties to a divorce. This is different from a mediator who does not advise but rather facilitates agreement. Solicitors must have undergone training and there are various safeguards in place to deal with the inherent risk of conflict. It remains to be seen whether there will be widespread uptake among both the legal profession and clients but there is an obvious logic to the idea for the right case. Practice Direction 9A In April 2024, the pre-action protocol provisions of Practice Direction 9A concerning financial applica ‑ tions were amended with a fresh emphasis on NCDR. While the use of NCDR is frequently a welcome balm, elements of the new provisions have caused some among the profession to wonder whether the balance has tipped too far away from proper access to justice. For those parties that do proceed with a court pro ‑ cess, they are required to produce a form, known as an FM5, in which they explain why they are not taking advantage of an NCDR option. The court is required actively to consider whether the timetabling of matters allows sufficient time for NCDR options to be explored, and indeed the court is empowered to stay proceedings and compel NCDR to be explored where appropriate. Examples of this power being exercised have been observed in prac ‑ tice, albeit sparingly. Failure to Engage A failure by a party to engage, without good reason, in NCDR is expressly cited as a reason to depart from the typical cost provisions in financial remedy pro ‑ ceedings (in which parties are generally required to meet their own legal fees absent bad behaviour), in the same way that the court may be invited to consider costs on the basis of a parties’ litigation misconduct.
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