Family update

Family law update: compelling reasons for attending the MIAM – Part 1

The 2011 Family Justice Review heralded a cultural sea change in the approach to resolving family disputes, in which mediation was slated to play a central role.¹

About the author
Kenneth Clarke is a lawyer mediator at Laceys Mediation.

Mediation was never going to be an easy fit into a territory where the adversarial model of dispute resolution has prevailed for centuries. Nonetheless, recent statistics for attendance at mediation information and assessment meetings (MIAMs) before the issue of proceedings are both worrying and disturbing, and suggest failure on two levels: first, in the courts’ gatekeeping role when screening C100 and Form A applications and, second, in the government’s efforts to market and promote mediation effectively.

In a response to a Freedom of Information request made to the Ministry of Justice in April 2016, National Family Mediation (NFM) ascertained that, out of 112,000 court applications, only 4,359 satisfied the MIAMs requirement.²  At just under 4%, this represents a drop in the ocean not a cultural sea change. This statistic is even more jarring when one reads the comments of Lord Thomas, the Lord Chief Justice, in his 2016 annual report.³  In the second quarter of 2016, there was a 16% increase in new private law applications. Lord Thomas’s comments bristle with exasperation: ‘This, in combination with the [24%] increase in public law cases, is a major concern for the judiciary’ (page 22).

With the number of litigants in person (LiPs) also on the increase, the last thing our creaking family justice system needs is a lax disregard of pre-action protocol, either by the courts or those advising potential litigants.

The legal requirement

Children and Families Act (CFA) 2014 Part 2 s10(1) makes the requirement clear: ‘before making a relevant family application, a person must attend a family mediation information and assessment meeting’. Section 10(2) states that the Family Procedure Rules SI No 2955 may ‘provide for subsection (1) not to apply in circumstances specified in the Rules’.

 … CFA 2014 Part 2 s10(1) makes the requirement clear: ‘before making a relevant family application, a person must attend a family mediation information and assessment meeting’

Section 10(2) also states that the rules may make ‘provision for the court not to issue, or otherwise deal with, an application if, in contravention of subsection (1), the applicant has not attended a family mediation information and assessment meeting, and [further] may provide for a determination as to whether the applicant has contravened subsection (1) to be made after considering only evidence of a description specified in the rules’. The legal requirement is, therefore, clear and unequivocal.

Family litigation is a hotbed of bitter and twisted emotions. There are hard-bitten and determined individuals ready to rush blindly into litigation, and left unchecked these people will clog up an already overworked system with their unreasonable and contentious approach to resolving matters. In children cases, in particular, it is imperative that parents are steered away from a collision course that will leave their children as the damaged victims.

Furthermore, if the courts are not proactive and rigorous in enforcing procedure at the outset, mediation will fall at the first hurdle, which means that such conciliation will not be able to reach and help parents and children who should not be enmeshed in brutal and damaging litigation. This litigation, moreover, is likely to have adverse repercussions long after the litigation has ceased and the files are gathering dust in court archives.

Unless the statutory exemptions apply, it is the function of the mediator in a MIAM to determine whether a case is suitable for mediation (Child Arrangements Programme 2014 para 5.3). This is an important point that referrers need to bear in mind. Too often, I get people turning up with their C100 court form or their Form A expecting me to act as a ‘tick box’ when the circumstances of their case are plainly suitable for mediation to be attempted, or at least given serious consideration, once they are given a clear explanation of the process.

The exemptions

The exemptions for attending a MIAM are detailed in Practice Direction 3A – Family Mediation Information and Assessment Meetings (MIAMs) and in CFA Part 3. In terms of domestic violence allegations, an applicant will not be expected to attend a MIAM if evidence of any of the following can be supplied:

• a relevant unspent conviction for a domestic violence offence, or a relevant conviction for a domestic violence offence where a prospective party was convicted of that offence within the 60-month period immediately preceding the date of the application;
• a relevant police caution for a domestic violence offence given within the 60- month period immediately preceding the date of the application;
• evidence of relevant criminal proceedings for a domestic violence offence which have not concluded;
• a relevant protective injunction which is in force or which was granted within the 60-month period immediately preceding the date of the application;
• an undertaking given in England and Wales under section 46 or 63E of the Family Law 1996 Act (or given in Scotland or Northern Ireland in place of a protection injunction):
  - by any prospective party in relation to another prospective party; and
  - within the 60-month period immediately preceding the date of the application;
• evidence that a prospective party is on relevant police bail for a domestic violence offence;
• a letter from any person who is a member of a multi-agency risk assessment conference confirming that:
  - any prospective party was referred to the conference as a victim of domestic violence; and
  - the conference has, within the 60-month period immediately preceding date of the application, put in place a plan to protect that party from a risk of harm by another prospective party;
• a copy of a finding of fact, made in proceedings in the UK within the 60-month period immediately preceding the date of the application, that there has been domestic violence giving rise to a risk of harm by one prospective party to another prospective party;
• a letter or report from a health professional who has access to the medical records of a prospective party confirming that that professional, or another health professional:
• has examined any prospective party in person within the 60-month period immediately preceding the date of the application; and was satisfied following that examination that that party had injuries or a condition consistent with those of a victim of domestic violence;
• a letter from a social services department in England or Wales (or its equivalent in Scotland or Northern Ireland) confirming that, within the 60-month period immediately preceding the date of the application, any prospective party was assessed as being, or at risk of being, a victim of domestic violence by another prospective party;
• a letter or report from a domestic violence support organisation in the UK confirming:
  - that within the 60-month period immediately preceding the date of the application, any prospective party had been accommodated in a refuge;
  - the dates on which that prospective party was admitted to and, if applicable, left the refuge; and -
• that that party was admitted to the refuge because of allegations by that party of domestic violence;
• a letter or report from a domestic violence support organisation in the UK confirming:
  - that a prospective party was, within the 60-month period immediately preceding the date of the application, refused admission to a refuge on account of there being insufficient accommodation available in the refuge; and
  - the date on which that prospective party was refused admission to the refuge;
• a letter or report from:
  - the person to whom the referral described below was made;
  - the health professional who made the referral described below; or
  - a health professional who has access to the medical records of a prospective party, confirming that there was, within the 60-month period immediately preceding the date of the application, a referral by a health professional of a prospective party to a person who provides specialist support or assistance for victims of, or those at risk of, domestic violence;
• a relevant domestic violence protection notice issued under section 24 of the Crime and Security Act 2010, or a relevant domestic violence protection order made under section 28 of that Act, against a prospective party within the 60-month period immediately preceding the date of the application;
• evidence of a relevant court order binding over a prospective party in connection with a domestic violence offence, which is in force or which was granted within the 60-month period immediately preceding the date of the application; or
• evidence which demonstrates that a prospective party has been, or is at risk of being, the victim of domestic violence by another prospective party in the form of abuse which relates to financial matters, where that evidence dates within the 60-month period immediately preceding the date of the application.

The other exemptions that apply are as follows:

• The application you want to make to the court relates to other family law matters in which you are currently involved.
• An application to the court needs to be made urgently because there is a risk to the life or safety of the person who is making the application (the applicant) or their family (for example, their children) or their home.
• The dispute is about money, and you or your husband, wife or civil partner (the respondent) is bankrupt.
• You and your husband, wife or civil partner are in agreement and there is no dispute.
• You do not know where your husband, wife or civil partner is.
• You wish to make an application to the court, but for certain reasons you do not want to tell your husband, wife or civil partner in advance.
• You are currently involved with social services because there are concerns about the safety and wellbeing of your child(ren).
• You cannot find a mediator within 15 miles of where you live, or you have contacted three mediators based within 15 miles of where you live and you are unable to get an appointment with any of them within 15 working days.
• You or your partner cannot access a mediator’s office because one of you has a disability. However, if the authorised mediator can provide the appropriate facilities, then you will both still be required to attend the meeting.
• A mediator shows, on the court form, that mediation is not suitable; for example, the other person is not willing to attend a MIAM.
• In the past four months you have tried mediation but it has not been successful. A mediator has to confirm this and state that mediation is not the best way for you to resolve your dispute.
• You or your partner do not normally live in either England or Wales, and therefore cannot be considered as being habitually resident.

1 Family Justice Review: final report, available at: http://tinyurl.com/lmot5dw
2 ‘Government divorce policy failing as separating couples head straight to court’, NFM News, available at: http://tinyurl.com/qehy99h
3 The Lord Chief Justice’s Report 2016, available at: http://tinyurl.com/mhl6yfd

•  ‘Family law update: compelling reasons for attending the MIAM – Part 2’ will appear in (2017) July CILExJ.