Briefing

Early Neutral Evaluation - the further privatisation of justice?

Posted by: Mark Fenton and Annmarie Carvalho | Date posted : 20/11/2014

Chaos in the family courts encouraged both parties and advocates in a children case this summer to opt for a more creative solution to their dispute.  They instructed an Early Neutral Evaluator to decide the matter, and the parties agreed to be bound by that decision.  There is therefore now a quicker and more flexible method of resolving children cases where parties favour non-court dispute resolution but require a binding decision.

The father in this case had issued an application for a child arrangements order and sought a specific issue order to remove the parties' children to the USA, where he lived, for a holiday.  The First Hearing and Dispute Resolution Appointment took place but the parties were unable to resolve the issues.  It was at that point that an agreement was made to instruct an independent evaluator rather than to proceed through the courts, with the associated delay. In this case, Michael Horowitz QC was instructed to adjudicate and provided a decision in a matter of weeks rather than months as would have been the case at court.

 

The Early Neutral Evaluation ("ENE") process is flexible and can be tailored to suit the case in more ways than one. For example, in this case, the parties agreed to be bound by the decision.  However, in other cases, parties might simply ask the evaluator to provide them with an indication on a particular matter, without agreeing to be bound by it.  This would be akin to the private FDR process in financial proceedings with the judge's indication as to the likely outcome of the case having persuasive rather than binding force.  This would hopefully short-circuit the need to go to a final hearing and encourage settlement talks, as in finance cases.

 

Early Neutral Evaluation can be used as a tool at any stage in the process.  For example, an evaluator can be instructed to decide right at the outset whether experts should be appointed and what other evidence is required. Unlike with court proceedings, the parties can determine the venue and time of hearings, so that it is most convenient for them.

 

One of the other key benefits of instructing an evaluator is that the parties can contact him/her between hearings to ask for assistance or clarification on particular points.  The parties will have judicial continuity and will know that the evaluator has not only had time to familiarise themselves with the details of their case (something judges in the Central Family Court increasingly do not have the luxury of) and that he/she will be available to decide further issues in the case as they may arise in the future.

 

There has been increasing emphasis on transparency in the Family Court in recent years with the consequence that many more judgments are reported and the Press can attend the hearings themselves.  Although the anonymity of the parties and the children is protected, Early Neutral Evaluation will be a big draw for those clients who wish to keep their private lives precisely that, such as those in whom the media may have an interest.

 

Where parties have agreed to be bound by the evaluator's decision, turning that decision into a binding order should be a straightforward process (akin to the approach taken in arbitration cases, and adopted by Sir James Munby in S v S [2014] EWHC 7 (Fam)(14 January 2014)) although clearly this will be subject to the court's paramount consideration under section 1 of the Children Act 1989 of the welfare of the child/children.

 

There is limited scope for appeal from an early neutral evaluator's decision (if the parties agree to be bound by the evaluator's decision).  This can, of course, be both an asset of the process or a defect, depending on how content or otherwise the client is with the decision.  The appeal/review process is likely to be analogous to that in arbitration where the court will become involved only in cases of apparent serious irregularity which has or may result in substantial injustice, where the evaluator appears to have lacked substantial jurisdiction or incorrectly determined his/her substantive jurisdiction or an appeal on a point of law[1].

 

In summary, Early Neutral Evaluation looks set to be a further useful resource in providing swift resolutions in children cases.  One would hope that the recent publicity about this new non-court dispute resolution option will encourage legal representatives to be creative and to suggest such solutions to clients rather than continuing down the usual (often unsatisfying) court proceedings route.

 

If you require further information on anything covered in this briefing please contact Annmarie Carvalho (annmarie.carvalho@farrer.co.uk; 020 3375 7174) or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Family page on our website.

This publication is a general summary of the law.  It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2014


[1] See sections 67-69 Arbitration Act 1996