PART 3 – NON-COURT DISPUTE RESOLUTION
See also Practice Direction 3A
Contents of this Part
I INTERPRETATION
3.1
In this Part –
‘allocation’ means allocation of proceedings other than appeal proceedings to a level of judge;
“authorised family mediator” means a person identified by the Family Mediation Council as qualified to conduct a MIAM.
‘family mediation information and assessment meeting’ has the meaning given to it in section 10(3) of the 2014 Act.
‘harm’ has the meaning given to it in section 31 of the Children Act 1989;
‘MIAM’ means a family mediation information and assessment meeting;
‘MIAM exemption’ has the meaning given to it in Rule 3.8(1);
‘MIAM requirement’ is the requirement in section 10(1) of the 2014 Act for a person to attend a MIAM before making a relevant family application;
‘private law proceedings’ has the meaning given to it in Rule 12.2;
‘prospective applicant’ is the person who is considering making a relevant family application;
‘prospective party’ is a person who would be likely to be a party to the proceedings in the relevant family application;
‘relevant family application’ has the meaning given to it in section 10(3) of the 2014 Act.
To the topII THE COURT’S DUTY AND POWERS GENERALLY
Scope of this Chapter
3.2
This Chapter contains the court’s duty and powers to encourage and facilitate the use of non-court dispute resolution.
To the topThe court’s duty to consider non-court dispute resolution
3.3
(1) The court must consider, at every stage in proceedings, whether non-court dispute resolution is appropriate.
(1A) When the court requires, a party must file with the court and serve on all other parties, in the time period specified by the court, a form setting out their views on using non-court dispute resolution as a means of resolving the matters raised in the proceedings.
(2) In considering whether non-court dispute resolution is appropriate in proceedings which were commenced by a relevant family application, the court must take into account –
(a) whether a MIAM took place;
(b) whether a valid MIAM exemption was claimed was confirmed; and
(c) whether the parties attempted mediation or another form of non-court dispute resolution and the outcome of that process.
To the topTimetabling proceedings: encouraging non-court dispute resolution
3.4
(1) Paragraph (1A) applies when the court considers that non-court dispute resolution is appropriate.
(1A) Where the timetabling of proceedings allows sufficient time for these steps to be taken, the court should encourage parties, as it considers appropriate, to—
(a)obtain information and advice about, and consider using, non-court dispute resolution; and
(b)undertake non-court dispute resolution.
(2) The court may give directions about the matters specified in paragraph (1A) on an application or of its own initiative.
(2A) Subject to paragraph (2B), the court may give directions referred to in paragraph (2) at any time during the proceedings.
(2B) In proceedings to which Practice Direction 12B applies, the court may give directions referred to in paragraph (2) at any time after the court has received the safeguarding letter or safeguarding report referred to in Practice Direction 12B.
(3) Where paragraph (1A) applies, the court will give directions about the timing and method by which the parties must tell the court if any of the issues in the proceedings have been resolved.
(4) If the parties do not tell the court if any of the issues have been resolved as directed under paragraph (3), the court will give such further directions as to the management of the case as it considers appropriate.
(5) The court or court officer will –
(a) record the making of any directions to which this rule applies; and
(b) arrange for a copy of the directions to be served as soon as practicable on the parties.
(6) Where the court proposes to exercise its powers of its own initiative, the procedure set out in rule 4.3(2) to (6) applies.
To the topIII FAMILY MEDIATION INFORMATION AND ASSESSMENT MEETINGS (MIAM)s
Scope of this Chapter
3.5
This Chapter contains Rules about the requirement in section 10(1) of the 2014 Act to attend a MIAM.
To the topApplications to which the MIAM requirement applies
3.6
(1) The MIAM requirement applies to any application to initiate the proceedings specified in paragraph (2), unless a MIAM exemption applies.
(2) The specified proceedings are –
(a) the private law proceedings relating to children specified in Practice Direction 3A; and
(b) the proceedings for a financial remedy specified in Practice Direction 3A.
To the topMaking an application
3.7
An application to initiate any of the proceedings specified in Rule 3.8 must contain, or be accompanied by, a form containing, either –
(a) a confirmation from an authorised family mediator that the prospective applicant has attended a MIAM; or
(b) a claim by the prospective applicant that one of the MIAM exemptions applies.
(A list of MIAM exemptions is set out in Rule 3.8(1) below.)
To the topCircumstances in which the MIAM requirement does not apply (MIAM exemptions)
3.8
The MIAM requirement does not apply if –
(1) a prospective applicant claims in the relevant form that any of the following circumstances (a ‘MIAM exemption’) applies –
(a) there is evidence of domestic abuse, as specified in Practice Direction 3A; or
(i) a child would be the subject of the application; and
(ii) that child or another child of the family who is living with that child is currently –
(aa) the subject of enquiries by a local authority under section 47 of the 1989 Act; or
(ab) the subject of a child protection plan put in place by a local authority; or
(c) the application must be made urgently because –
(i) there is risk to the life, liberty or physical safety of the prospective applicant or his or her family or his or her home; or
(ii) any delay caused by attending a MIAM would cause –
(aa) a risk of harm to a child;
(ab) a risk of unlawful removal of a child from the United Kingdom, or a risk of unlawful retention of a child who is currently outside England and Wales;
(ac) a significant risk of a miscarriage of justice;
(ad) significant financial hardship to the prospective applicant; or
(ae) irretrievable problems in dealing with the dispute (including the irretrievable loss of significant evidence); or
(iii) there is a significant risk that in the period necessary to schedule and attend a MIAM, proceedings relating to the dispute will be brought in another state in which a valid claim to jurisdiction may exist, such that a court in that other state would be seised of the dispute before a court in England and Wales; or
Previous MIAM attendance or non-court dispute resolution attendance
(i) in the 4 months prior to making the application, the person attended a MIAM or a non-court dispute resolution process relating to the same or substantially the same dispute; and
(ii) where the person attended a non-court dispute resolution process, there is evidence of that attendance, as specified in Practice Direction 3A; or
(i) the application would be made in existing proceedings which are continuing; and
(ii) the prospective applicant attended a MIAM before initiating those proceedings; or
(g)Omitted
(i) there is evidence that the prospective applicant is bankrupt, as specified in Practice Direction 3A; and
(ii) the proceedings would be for a financial remedy; or
(j) the application would be made without notice; or
(Paragraph 5.1 of Practice Direction 18A sets out the circumstances in which applications may be made without notice.)
(k) –
(ai)the prospective applicant is not able to attend a MIAM online or by video-link and an explanation of why this is the case is provided to the court;
(i) the prospective applicant is subject to a disability or other inability that would prevent attendance in person at a MIAM unless appropriate facilities can be offered by an authorised mediator;
(ii) the prospective applicant has contacted as many authorised family mediators as have an office within fifteen miles of his or home (or five of them if there are five or more), and all have stated that they are unable to provide such facilities; and
(iii) the names, postal addresses and telephone numbers or e-mail addresses for the authorised family mediators contacted by the prospective applicant, and the dates of contact, are provided to the court; or
(l) the prospective applicant cannot attend a MIAM because the prospective applicant is –
(i) in prison or any other institution in which the prospective applicant is required to be detained and facilities cannot be made available for them to attend a MIAM online or by video-link;
(ii) subject to conditions of bail that prevent contact with the other person; or
(iii) subject to a licence with a prohibited contact requirement in relation to the other person; or
(n) a child is one of the prospective parties; or
(ai) the prospective applicant is not able to attend a MIAM online or by video-link and an explanation of why this is the case is provided to the court;
(i) the prospective applicant has contacted as many authorised family mediators as have an office within fifteen miles of his or her home (or five of them if there are five 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 the authorised family mediators contacted by the prospective applicant, and the dates of contact, are provided to the court; or
(p)—
(i) the prospective applicant is not able to attend a MIAM online or by video-link;
(ii) there is no authorised family mediator with an office within fifteen miles of the prospective applicant’s home; and
(iii) an explanation of why this exemption applies is provided by the prospective applicant to the court.
To the topConduct of MIAMs
3.9
(1) Only an authorised family mediator may conduct a MIAM.
(2) At the MIAM, the authorised family mediator must
(a) provide information about the principles, process and different models of mediation, and information about other methods of non-court dispute resolution;
(b) consider and explain the potential benefits of mediation and other methods of non-court dispute resolution as a means of resolving the dispute;
(c) assess whether there has been, or is a risk of, domestic abuse; and
(d) assess whether there has been, or is a risk of, harm by a prospective party to a child that would be a subject of the application;
(e)indicate to those attending the MIAM which form, or forms, of non-court dispute resolution may be most suitable as a means of resolving the dispute, and why; and
(f)where sub-paragraph (e) applies, provide information to those attending the MIAM about how to proceed with the form, or forms, of non-court dispute resolution in question.
To the topMIAM exemption not validly claimed or no longer applicable
3.10
(1) If a MIAM exemption has been claimed, the court will inquire into whether the exemption—
(a)was not validly claimed; or
(b)was validly claimed but is no longer applicable.
(1A) The inquiry referred to in paragraph (1) must be made—
(a)when making the decision on allocation, in private law proceedings to which the MIAM requirement applies; or
(b)when making a decision on allocation (if such a decision is made), and in any event at the first hearing, in proceedings for a financial remedy to which the MIAM requirement applies.
(2) If a court finds that the MIAM exemption was not validly claimed, or that it was validly claimed but is no longer applicable, the court will –
(a) direct the applicant, or direct the parties to attend a MIAM; and
(b) if necessary, adjourn the proceedings to enable a MIAM to take place;
unless the court considers that in all the circumstances of the case, the MIAM requirement should not apply to the application in question.
(3) In making a decision under Rule 3.10(2), the court will have particular regard to –
(a) any applicable time limits;
(b) the reason or reasons why the MIAM exemption was not validly claimed;
(ba) the reasons why a MIAM exemption which was validly claimed is no longer applicable;
(c) the applicability of any other MIAM exemptions;
(ca) the potential benefits of attending a MIAM, including the opportunity to receive information about options for non-court dispute resolution; an
(d) the number and nature of issues that remain to be resolved in the proceedings.
To the top