PRACTICE DIRECTION 3A – FAMILY MEDIATION INFORMATION AND ASSESSMENT MEETINGS (MIAMS)
PRACTICE DIRECTION 3A – FAMILY MEDIATION INFORMATION AND ASSESSMENT MEETINGS (MIAMS)
|Background: Consideration of mediation and other non-court dispute resolution||Para. 8.|
|The applications to which the MIAM requirement applies||Para. 11.|
|Private law proceedings relating to children||Para. 12.|
|Proceedings for a financial remedy||Para. 13.|
|Making an application||Para. 14.|
|MIAM exemptions||Para. 17.|
|MIAM exemption - Domestic violence||Para. 20.|
|MIAM exemption – Bankruptcy||Para. 21.|
|Finding an authorised family mediator||Para. 22.|
|Funding attendance at a MIAM||Para. 29.|
|Attending a MIAM||Para. 32.|
|MIAM exemption: Inquiries by the court||Para. 35.|
The purpose of this Practice Direction is to supplement the MIAM Rules in the Family Procedure Rules and to set out good practice to be followed by prospective respondents who are expected to also attend a MIAM.
Under section 10(1) of the Children and Families Act 2014, it is now a requirement for a person to attend a MIAM before making certain kinds of applications to obtain a court order. (A list of these applications is set out in Rule 3.6 and in paragraphs 12 and 13 below.) The person who would be the respondent to the application is expected to attend the MIAM. The court has a general power to adjourn proceedings in order for non-court dispute resolution to be attempted, including attendance at a MIAM to consider family mediation and other options.
A MIAM is a short meeting that provides information about mediation as a way of resolving disputes. A MIAM is conducted by a trained mediator who will assess whether mediation is appropriate in the circumstances. A MIAM should be held within 15 business days of contacting the mediator.
There are exemptions to the MIAM requirement. These are set out in the MIAM Rules (see Chapter 3 to Part 3 of the Family Procedure Rules), and are explained in more detail in this Practice Direction.
The effect of the MIAM requirement and accompanying Rules is that a person who wishes to make certain kinds of applications to the court must first attend a MIAM unless a ‘MIAM exemption’ or a ‘mediator's exemption’ applies. These exemptions are set out in Rule 3.8.
When making certain kinds of applications (see paragraphs 12 and 13 below), an applicant must therefore provide on the application form, or on a separate form, one of the following –
(i) confirmation from a mediator that she or he has attended a MIAM;
(ii) confirmation from a mediator that a 'mediator's exemption' applies; or
(iii) a claim that a MIAM exemption applies. An applicant who claims an exemption from the MIAM requirement is not required to attach any supporting evidence with their application, but should bring any supporting evidence to the first hearing.
If an applicant claims a MIAM exemption, the court will issue proceedings but will inquire into the exemption claimed, either at the stage at which the case is allocated or at the first hearing. At the first hearing, the court may review any supporting evidence in order to ensure that the MIAM exemption was validly claimed. As set out in more detail below, if a MIAM exemption has not been validly claimed, the court may direct the applicant or the parties to attend a MIAM, and may adjourn proceedings for that purpose.
The adversarial court process is not always best suited to the resolution of family disputes. Such disputes are often best resolved through discussion and agreement, where that can be managed safely and appropriately.
Family mediation is one way of settling disagreements. A trained mediator can help the parties to reach an agreement. A mediator who conducts a MIAM is a qualified independent facilitator who can also discuss other forms of dispute resolution if mediation is not appropriate.
Attendance at a MIAM provides an opportunity for the parties to a dispute to receive information about the process of mediation and to understand the benefits it can offer as a way to resolve disputes. At that meeting, a trained mediator will discuss with the parties the nature of their dispute and will explore with them whether mediation would be a suitable way to resolve the issues on which there is disagreement.
In accordance with section 10 of the 2014 Act, and Rule 3.6, the proceedings to which the MIAM requirement applies are the private law proceedings relating to children listed in paragraph 12 and the proceedings for a financial remedy listed in paragraph 13 below.
(1) The private law proceedings relating to children referred to in paragraph 11 are proceedings for the following orders, unless one of the circumstances specified in sub-paragraph (2) applies –
(a) a child arrangements order and other orders with respect to a child or children under section 8 of the Children Act 1989;
(b) a parental responsibility order (under sections 4(1)(c), 4ZA(1)(c) or 4A(1)(b) of the Children Act 1989) or an order terminating parental responsibility (under sections 4(2A), 4ZA(5) or 4A(3) of that Act);
(c) an order appointing a child's guardian (under section 5(1) of the Children Act 1989) or an order terminating the appointment (under section 6(7) of that Act);
(d) an order giving permission to change a child's surname or remove a child from the United Kingdom (under sections 13(1) or 14C of the Children Act 1989);
(e) a special guardianship order; and
(f) an order varying or discharging such an order (under section 14D of the Children Act 1989).
(2) The circumstances referred to in sub-paragraph (1) are that the proceedings –
(a) are for a consent order;
(b) are for an order relating to a child or children in respect of whom there are ongoing emergency proceedings, care proceedings or supervision proceedings; or
(c) are for an order relating to a child or children who are the subject of an an emergency protection order, a care order or a supervision order.
(1) The proceedings for a financial remedy referred to in paragraph 11 are proceedings for the following orders, unless one of the circumstances specified in sub-paragraph (2) applies –
(a) the following financial orders –
(i) an order for maintenance pending suit;
(ii) an order for maintenance pending outcome of proceedings;
(iii) an order for periodical payments or lump sum provision as mentioned in section 21(1) of the Matrimonial Causes Act 1973, except an order under section 27(6) of that Act;
(iv) an order for periodical payments or lump sum provision as mentioned in paragraph 2(1) of Schedule 5 to the Civil Partnership Act 2004, made under Part 1 of Schedule 5 to that Act;
(v) a property adjustment order;
(vi) a variation order;
(vii) a pension sharing order; or
(viii) a pension compensation sharing order;
(b) an order for financial provision for children (under Schedule 1 to the Children Act 1989);
(c) an order for financial provision in a case of neglect to maintain (under section 27 of the Matrimonial Causes Act 1973 or under Part 9 of Schedule 5 to the Civil Partnership Act 2004);
(d) an order for alteration of a maintenance agreement (under section 35 of the Matrimonial Causes Act 1973 or under paragraph 69 of Schedule 5 to the 2004 Act);
(e) an order for financial provision for failure to maintain for parties to a marriage and children of the family (under Part 1 of the Domestic Proceedings and Magistrates' Courts Act 1978 or an order under Schedule 6 to the Civil Partnership Act 2004); and
(f) an order for special protection for respondent in certain separation cases (under section 10(2) of the Matrimonial Causes Act 1973 or under section 48(2) of the Civil Partnership Act 2004).
An application to the court in any of the proceedings specified above must be on the relevant court form which must contain either: (a) a confirmation from a mediator that the applicant has attended a MIAM; (b) a claim by the applicant that a MIAM exemption applies (the list of MIAM exemptions is set out in Rule 3.8(1)); or (c) a confirmation from a mediator that a mediator's exemption applies (the list of circumstances that qualify for a mediator's exemption is in Rule 3.8(2)).
Relevant application forms are available from the HMCTS form finder service at www.justice.gov.uk/forms/hmcts. For matters concerning children you can find out which form to use by reading the leaflet CB1 - Making an application - Children and the Family Courts'. Leaflet CB7 – Guide for separated parents: children and the family courts also provides guidance on the court process.
The relevant form can be completed either by the applicant or his or her legal representative. Any reference in this Practice Direction or in the Rules to completion of the form by an applicant includes a reference to completion by a legal representative.
FPR Rule 3.8(1) sets out the circumstances in which the MIAM requirement does not apply. These are called MIAM exemptions.
In order to claim that a MIAM exemption applies, an applicant will need to tick the appropriate MIAM exemption boxes on the relevant form.
Applicants should note that some of the MIAM exemptions require that certain evidence is available. The next section of the Practice Direction specifies those forms of evidence. This evidence does not need to be provided with the application but applicants should bring such evidence to the first hearing because the court will inquire into such evidence in order to determine whether the MIAM exemption has been validly claimed.
The forms of evidence referred to in Rule 3.8(1)(a) are–
(a) evidence that a prospective party has been arrested for a relevant domestic violence offence;
(b) evidence of a relevant police caution for a domestic violence offence;
(c) evidence of relevant criminal proceedings for a domestic violence offence which have not concluded;
(d) evidence of a relevant conviction for a domestic violence offence;
(e) a court order binding a prospective party over in connection with a domestic violence offence;
(f) a domestic violence protection notice issued under section 24 of the Crime and Security Act 2010 against a prospective party;
(g) a relevant protective injunction;
(h) an undertaking given in England and Wales under section 46 or 63E of the Family Law Act 1996 (or given in Scotland or Northern Ireland in place of a protective injunction) by a prospective party, provided that a cross-undertaking relating to domestic violence was not given by another prospective party;
(i) a copy of a finding of fact, made in proceedings in the United Kingdom, that there has been domestic violence by a prospective party;
(j) an expert report produced as evidence in proceedings in the United Kingdom for the benefit of a court or tribunal confirming that a person with whom a prospective party is or was in a family relationship, was assessed as being, or at risk of being, a victim of domestic violence by that prospective party;
(k) a letter or report from an appropriate health professional confirming that-
(i) that professional, or another appropriate health professional, has examined a prospective party in person; and
(ii) in the reasonable professional judgment of the author or the examining appropriate health professional, that prospective party has, or has had, injuries or a condition consistent with being a victim of domestic violence;
(l) a letter or report from-
(i) the appropriate health professional who made the referral described below;
(ii) an appropriate health professional who has access to the medical records of the prospective party referred to below; or
(iii) the person to whom the referral described below was made;
confirming that there was a referral by an appropriate 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;
(m) a letter from any person who is a member of a multi-agency risk assessment conference (or other suitable local safeguarding forum) confirming that a prospective party, or a person with whom that prospective party is in a family relationship, is or has been at risk of harm from domestic violence by another prospective party;
(n) a letter from an independent domestic violence advisor confirming that they are providing support to a prospective party;
(o) a letter from an independent sexual violence advisor confirming that they are providing support to a prospective party relating to sexual violence by another prospective party;
(p) a letter from an officer employed by a local authority or housing association (or their equivalent in Scotland or Northern Ireland) for the purpose of supporting tenants containing-
(i) a statement to the effect that, in their reasonable professional judgment, a person with whom a prospective party is or has been in a family relationship is, or is at risk of being, a victim of domestic violence by that prospective party;
(ii) a description of the specific matters relied upon to support that judgment; and
(iii) a description of the support they provided to the victim of domestic violence or the person at risk of domestic violence by that prospective party;
(q) a letter which-
(i) is from an organisation providing domestic violence support services, or a registered charity, which letter confirms that it-
(aa) is situated in England and Wales,
(bb) has been operating for an uninterrupted period of six months or more; and
(cc) provided a prospective party with support in relation to that person’s needs as a victim, or a person at risk, of domestic violence; and
(aa) a statement to the effect that, in the reasonable professional judgment of the author of the letter, the prospective party is, or is at risk of being, a victim of domestic violence;
(bb) a description of the specific matters relied upon to support that judgment;
(cc) a description of the support provided to the prospective party; and
(dd) a statement of the reasons why the prospective party needed that support;
(r) a letter or report from an organisation providing domestic violence support services in the United Kingdom confirming-
(i) that a person with whom a prospective party is or was in a family relationship was refused admission to a refuge;
(ii) the date on which they were refused admission to the refuge; and
(iii) they sought admission to the refuge because of allegations of domestic violence by the prospective party referred to in paragraph (i);
(s) a letter from a public authority confirming that a person with whom a prospective party is or was in a family relationship, was assessed as being, or at risk of being, a victim of domestic violence by that prospective party (or a copy of that assessment);
(t) a letter from the Secretary of State for the Home Department confirming that a prospective party has been granted leave to remain in the United Kingdom under paragraph 289B of the Rules made by the Home Secretary under section 3(2) of the Immigration Act 1971, which can be found at https://www.gov.uk/guidance/immigration-rules/immigration-rules-index;
(u) 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.
As set out in Rule 3.9, a MIAM must be conducted by an authorised family mediator. Under that rule, an authorised family mediator is a person identified by the Family Mediation Council as qualified to conduct a MIAM.
A list of authorised family mediators, including their location, can be found using the ‘Find your local mediator’ search engine at: www.familymediationcouncil.org.uk
The expectation is that a prospective applicant should be able to find an authorised family mediator within 15 miles of his or her home. As stated in Rule 3.8(1)(o) a MIAM exemption is available if –
(i) the prospective applicant has contacted as many authorised family mediators as have an office within fifteen miles of his or her home (or three of them if there are three or more), and all of them have stated that they are not available to conduct a MIAM within fifteen business days of the date of contact;
(ii) the names, postal addresses and telephone numbers or e-mail addresses for such authorised family mediators, and the dates of contact, can be provided to the court if requested.
Rule 3.8(1)(p) also provides an exemption if there is no authorised family mediator with an office within fifteen miles of the prospective applicant's home.
To determine whether a mediator is within the distance of 15 miles from their home, applicants can use the ‘Find your local mediator’ search engine to type in their own post code and then use the distance option to display only family mediators within a 15 mile distance.
The applicant will need to be prepared to produce at the first hearing the names, contact information and details of the dates of contact with the authorised family mediators.
Information about the Family Mediation Council, including its code of conduct can also be found at www.familymediationcouncil.org.uk
The cost of attending a MIAM will depend on whether the prospective parties attend separately or together and whether at least one of the prospective parties is eligible for Legal Aid. If at least one party is eligible for Legal Aid then the total cost of MIAM attendance can be met by the Legal Aid Agency, whether the parties attend the same MIAM or separate MIAMs.
If neither party is eligible for Legal Aid then the mediator will agree with the prospective parties how the cost of MIAM attendance is to be met.
Parties can find out whether they are eligible for Legal Aid by using the calculator tool available at www.gov.uk/legal-aid
Prospective respondents are expected to attend a MIAM, either with the prospective applicant or separately. A respondent may choose to attend a MIAM separately but this should usually be with the same authorised family mediator.
The prospective applicant should provide contact details for the prospective respondent to an authorised family mediator for the purpose of the mediator contacting them to discuss their willingness to attend a MIAM and, if appropriate, to schedule their attendance at a MIAM.
If the mediator contacts the prospective respondent and determines that he or she is unwilling to attend a MIAM, a prospective applicant should ask the mediator to confirm this as a ground for MIAM exemption in the relevant section of the application form, which should then be returned signed to the applicant.
Where a MIAM exemption requires that certain evidence is available, the evidence does not need to be provided with the application form. Applicants should instead bring any such evidence to the first hearing because the court will inquire into such evidence in order to determine whether the MIAM exemption was validly claimed.
The court may if appropriate adjourn proceedings where such evidence is not available or may give directions about how and when such evidence is to be filed with the court.
If the court determines that the MIAM exemption was not validly claimed, the court may direct the applicant, or the parties, to attend a MIAM and may adjourn proceedings pending MIAM attendance.
For the purpose of this Practice Direction –
'appropriate health professional' means-
(a) a medical practitioner licensed to practise by the General Medical Council;
(b) a health professional who is registered to practise in the United Kingdom by-
(i) the Nursing and Midwifery Council; or
(ii) the General Dental Council; or
(c) a paramedic, practitioner psychologist, radiographer or social worker registered to practise in the United Kingdom by the Health and Care Professions Council;
‘care order’ has the meaning given to it in Rule 2.3 of the FPR;
‘care proceedings’ has the meaning given to it in Rule 12.2 of the FPR;
‘consent order’ has the meaning given to it in Rule 2.3 of the FPR;
'domestic violence offence' has the meaning given in the list published by the Lord Chancellor which can be viewed at https://www.gov.uk/government/publications/domestic-violence-and-child-abuse-offences;
‘emergency proceedings’ has the meaning given to it in Rule 12.2 of the FPR;
‘emergency protection order’ has the meaning given to it in Rule 12.2 of the FPR;
'expert report' means a report by a person qualified to give expert advice on all or most of the matters that are the subject of the report;
‘FPR’ means the Family Procedure Rules 2010;
‘financial order’ has the meaning given to it in Rule 2.3 of the FPR;
‘financial remedy’ has the meaning given to it in Rule 2.3 of the FPR;
'housing association' has the same meaning as in section 1(1) of the Housing Associations Act 1985;
'local authority' means a county council, a district council, a London borough council or a parish council but, in relation to Wales, means a county council, county borough council or community council;
‘health professional’ means a registered –
(a) medical practitioner who holds a licence to practise;
(c) midwife; or
(d) practitioner psychologist who holds a licence to practise;
‘mediator's exemption’ has the meaning given to it in Rule 3.1 of the FPR;
‘MIAM’ means a family mediation information and assessment meeting;
‘MIAM exemption’ has the meaning given to it in Rule 3.1 of the FPR;
‘MIAM requirement’ has the meaning given to it in Rule 3.1 of the FPR;
‘non-court dispute resolution’ has the meaning given to it in Rule 2.3 of the FPR;
‘pension compensation sharing order’ has the meaning given in Rule 9.3 of the FPR;
‘pension sharing order’ has the meaning given in Rule 9.3 of the FPR;
‘private law proceedings’ has the meaning given to it in Rule 12.2 of the FPR;
‘prospective applicant’ has the meaning given to it in Rule 3.1 of the FPR;
‘prospective party’ has the meaning given to it in Rule 3.1 of the FPR;
‘prospective respondent’ has the meaning given to it in Rule 3.1 of the FPR;
'protective injunction' means an order made by the court–
(a) in respect of persons who are in a family relationship with each other, containing any of the following provisions-
(i) protecting a person from harm, intimidation, threats or harassment;
(ii) protecting a person from being forced into a marriage or from any attempt to be forced into a marriage;
(iii) prohibiting a person from contacting, or communicating with, another;
(iv) concerning entry or access to, or the use or occupation of, property;
(b) for the protection from female genital mutilation under paragraph 1 or 18 of Schedule 2 to the Female Genital Mutilation Act 2003; or
(c) in respect of a violent offender within the meaning of section 98 of the Criminal Justice and Immigration Act 2008,
but does not include an order made without notice to the respondent that was subsequently set aside by the court;
'public authority' has the same meaning as in section 6 of the Human Rights Act 1998;
'registered charity' means a charity which is registered in accordance with section 30 of the Charities Act 2011;
(a) a refuge established for the purpose of providing accommodation for victims of, or those at risk of, domestic violence; or
(b) a residential home established and maintained by a public body for any other purpose that also provides accommodation to the victims of, or those at risk of, domestic violence;”; and
'relevant' in paragraph 20 of this Practice Direction means that the evidence–
(a) identifies a person with whom a prospective party is or was in a family relationship as being, or at risk of being, the victim of domestic violence; or
(i) in a form described in paragraph 20(1)(a) to (d);
(ii) identifies a prospective party as the person arrested for, cautioned with, charged with, or convicted of the domestic violence offence; and
(iii) relates to a domestic violence offence which does not identify the victim;
‘supervision order’ has the meaning given to it in Rule 12.2 of the FPR;
‘supervision proceedings’ has the meaning given to it in Rule 12.2 of the FPR; and
‘variation order’ has the meaning given to it in Rule 9.3 of the FPR.
(1). For the purposes of paragraph 20, there is a family relationship between two people if they are associated with each other. A person is associated with another person if-
(a) they are or have been married to each other;
(b) they are or have been civil partners of each other;
(c) they are cohabitants or former cohabitants;
(d) they live or have lived in the same household, otherwise than merely by reason of one of them being the other's employee, tenant, lodger or boarder;
(e) they are relatives;
(f) they have agreed to marry one another (whether or not that agreement has been terminated);
(g) they have entered into a civil partnership agreement (as defined by section 73 of the Civil Partnership Act 2004) (whether or not that agreement has been terminated);
(h) they have or have had an intimate personal relationship with each other which is or was of significant duration;
(i) in relation to any child, they are both persons falling within sub-paragraph (3); or
(j) they are parties or prospective parties to the same family proceedings.
(2) For the purposes of sub-paragraph (1)-
(a) 'cohabitants' are two persons who are neither married to each other nor civil partners of each other but are living together as husband and wife or as if they were civil partners, and
(b) 'cohabit' and 'former cohabitants' are to be read accordingly, but the latter expression does not include cohabitants who have subsequently married each other or become civil partners of each other.
(3) A person falls within this sub-paragraph in relation to a child if—
(a) the person is a parent of the child; or
(b) the person has or has had parental responsibility for the child.
(4) If a child has been adopted or falls within sub-paragraph (6), two persons are also associated with each other for the purposes of sub-paragraph (1) if—
(a) one is a natural parent of the child or a parent of such a natural parent; and
(b) the other is the child or any person—
(i) who has become a parent of the child by virtue of an adoption order or has applied for an adoption order, or
(ii) with whom the child has at any time been placed for adoption.
(5) A body corporate and another person are not, by virtue of sub-paragraph (1)(i) or (j), to be regarded as associated with each other.
(6) A child falls within this sub-paragraph if—
(a) an adoption agency, within the meaning of section 2 of the Adoption and Children Act 2002, has power to place him for adoption under section 19 of that Act (placing children with parental consent) or he has become the subject of an order under section 21 of that Act (placement orders), or
(b) the child is freed for adoption by virtue of an order made—
(i) in England and Wales, under section 18 of the Adoption Act 1976, or
(ii) in Northern Ireland, under Article 17(1) or 18(1) of the Adoption (Northern Ireland) Order 1987, or
(c) the child is the subject of a Scottish permanence order which includes provision granting authority to adopt.
(7) In sub-paragraph (6)(c) 'Scottish permanence order' means a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007 (including a deemed permanence order having effect by virtue of article 13(1), 14(2), 17(1) or 19(2) of the Adoption and Children (Scotland) Act 2007 (Commencement No 4, Transitional and Savings Provisions) Order 2009).
(8) For the avoidance of doubt, where paragraph 20 refers to a person with whom a prospective party is in a family relationship, that person could be (but need not necessarily be), another prospective party.