PRACTICE DIRECTION 3A – FAMILY MEDIATION INFORMATION AND ASSESSMENT MEETINGS (MIAMS)

PRACTICE DIRECTION 3A – FAMILY MEDIATION INFORMATION AND ASSESSMENT MEETINGS (MIAMS)

Summary

1.

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.

2.

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.

3.

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.

4.

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.

5.

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.

6.

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.

7.

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.

Background: Consideration of mediation and other non-court dispute resolution

8.

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.

9.

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.

10.

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.

The applications to which the MIAM requirement applies

11.

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.

Private law proceedings relating to children

12.

(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.

Proceedings for a financial remedy

13.

(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).

(2) The circumstances referred to in sub-paragraph (1) are that the proceedings –

(a) are for a consent order; or

(b) are for enforcement of any order made in proceedings for a financial remedy or of any agreement made in or in contemplation of proceedings for a financial remedy.

Making an application

14.

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)).

15.

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.

16.

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.

MIAM exemptions

17.

FPR Rule 3.8(1) sets out the circumstances in which the MIAM requirement does not apply. These are called MIAM exemptions.

18.

In order to claim that a MIAM exemption applies, an applicant will need to tick the appropriate MIAM exemption boxes on the relevant form.

19.

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.

MIAM exemption - Domestic violence

20.

(1) The forms of evidence referred to in Rule 3.8(1)(a) are –

(a) a relevant unspent conviction for a domestic violence offence;

(aa) a relevant conviction for a domestic violence offence where a prospective party was convicted of that offence within the sixty month period immediately preceding the date of the application;

(b) a relevant police caution for a domestic violence offence given within the sixty month period immediately preceding the date of the application;

(c) evidence of relevant criminal proceedings for a domestic violence offence which have not concluded;

(d) a relevant protective injunction which is in force or which was granted within the sixty month period immediately preceding the date of the application;

(e) an undertaking given in England and Wales under section 46 or 63E of the 1996 Act (or given in Scotland or Northern Ireland in place of a protection injunction) –

(i) by any prospective party in relation to another prospective party; and

(ii) within the sixty month period immediately preceding the date of the application;

(f) evidence that a prospective party is on relevant police bail for a domestic violence offence;

(g) a letter from any person who is a member of a multi-agency risk assessment conference confirming that –

(i) any prospective party was referred to the conference as a victim of domestic violence; and

(ii) the conference has, within the sixty month period immediately preceding the date of the application, put in place a plan to protect that party from a risk of harm by another prospective party;

(h) a copy of a finding of fact, made in proceedings in the United Kingdom within the sixty 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;

(j) 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 –

(i) has examined any prospective party in person within the sixty month period immediately preceding the date of the application; and

(ii) was satisfied following that examination that that party had injuries or a condition consistent with those of a victim of domestic violence;

(ja) a letter from a social services department in England or Wales (or its equivalent in Scotland or Northern Ireland) confirming that, within the sixty 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;

(k) a letter or report from a domestic violence support organisation in the United Kingdom confirming –

(i) that within the sixty month period immediately preceding the date of the application, any prospective party had been accommodated in a refuge;

(ii) the dates on which that prospective party was admitted to and, if applicable, left the refuge; and

(iii) that that party was admitted to the refuge because of allegations by that party of domestic violence;

(l) a letter or report from a domestic violence support organisation in the United Kingdom confirming –

(i) that a prospective party was, within the sixty 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

(ii) the date on which that prospective party was refused admission to the refuge;

(m) a letter or report from –

(i) the person to whom the referral described below was made;

(ii) the health professional who made the referral described below; or

(iii) a health professional who has access to the medical records of a prospective party,

confirming that there was, within the sixty 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;

(n) 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 sixty month period immediately preceding the date of the application;

(o) 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 sixty month period immediately preceding the date of the application; or

(p) 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 sixty month period immediately preceding the date of the application.

MIAM exemption – Bankruptcy

21.

The forms of evidence referred to in Rule 3.8(1)(h) are –

(a) application by the prospective applicant for a bankruptcy order;

(b) petition by a creditor of the prospective applicant for a bankruptcy order; or

(c) a bankruptcy order in respect of the prospective applicant.

Finding an authorised family mediator

22.

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.

23.

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

24.

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;

and

(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.

25.

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.

26.

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.

27.

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.

28.

Information about the Family Mediation Council, including its code of conduct can also be found at www.familymediationcouncil.org.uk

Funding attendance at a MIAM

29.

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.

30.

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.

31.

Parties can find out whether they are eligible for Legal Aid by using the calculator tool available at www.gov.uk/legal-aid

Attending a MIAM

32.

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.

33.

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.

34.

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.

MIAM exemption: Inquiries by the court

35.

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.

36.

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.

37.

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.

Definitions

38.

For the purpose of this Practice Direction –

accommodated [in paragraph 20(1)(k)(i)] does not require a stay of a minimum time period;

‘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;

‘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;

‘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;

‘health professional’ means a registered –

(a) medical practitioner who holds a licence to practise;

(b) nurse;

(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 –

(a) a non-molestation order under section 42 of the 1996 Act or article 20 of the Family Homes and Domestic Violence (Northern Ireland) Order 1998;

(b) an occupation order under section 33, 35, 36, 37 or 38 of the 1996 Act or article 11, 13, 14, 15 or 16 of the Family Homes and Domestic Violence (Northern Ireland) Order 1998;

(c) an exclusion order under section 4 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 or section 104 of the 2004 Act;

(d) a forced marriage protection order or interim forced marriage protection order under any of the following provisions –

(i) Part 4A of the 1996 Act;

(ii) section 2 of, and paragraph 1 of Schedule 1 to, the Forced Marriage (Civil Protection) Act 2007;

(iii) section 1 of the Forced Marriage etc. (Protection & Jurisdiction) (Scotland) Act 2011; and

(iv) section 5 of the Forced Marriage etc. (Protection & Jurisdiction) (Scotland) Act 2011;

(da) an injunction under section 3A of the Protection From Harassment Act 1997;

(e) a restraining order under section 5 or 5A of the Protection from Harassment Act 1997;

(f) a restraining injunction under article 5 or a restraining order under article 7 or 7A of the Protection from Harassment (Northern Ireland) Order 1997;

(g) a non-harassment order under section 234A of the Criminal Procedure (Scotland) Act 1995 or section 8 or 8A of the Protection from Harassment Act 1997;

(h) a common law injunction;

(i) any of the following interdicts –

(i) a matrimonial interdict within the meaning of section 14 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981;

(ii) a domestic interdict within the meaning of section 18A of the Matrimonial Homes (Family Protection) (Scotland) Act 1981;

(iii) an interdict for civil partners within the meaning of section 113 of the Civil Partnership Act 2004;

(iv) an interdict that has been determined to be a domestic abuse interdict within the meaning of section 3 of the Domestic Abuse (Scotland) Act 20011; and

(v) a common law interdict;

(i) a female genital mutilation protection order under paragraph 1 or 18 of Schedule 2 to the Female Genital Mutilation Act 2003;

(j) a violent offender order within the meaning of section 98 of the Criminal Justice and Immigration Act 2008;

refuge means a refuge established for the purpose of providing accommodation for victims of, or those at risk of, domestic violence;

‘relevant’ in paragraph 20 of this Practice Direction means that the evidence –

(a) identifies a prospective party as being, or at risk of being, the victim of domestic violence unless the evidence –

(i) is in a form described in paragraph 20 (1)(a) to (c), (f), (n) or (o); and

(ii) relates to a domestic violence offence which does not identify the victim; and

(b) identifies another party as being –

(i) for evidence described in paragraph 20(1)(a) to (c) and (f), convicted of, cautioned with, on police bail for, or charged with the domestic violence offence; and

(ii) for evidence described in paragraph 20(1)(d), the respondent to the protective injunction;

(iii) for evidence described in paragraph 20(1)(n), the person against whom the notice or order has been issued or made; and

(iv) for evidence described in paragraph 20(1)(o), the person against whom the order binding over has been made.

‘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.

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