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The requirement to attend a Mediation Information and Assessment Meeting (MIAM) before making an application has also been strengthened and given statutory force - the requirement is now set out in statute, by the Child And Families Act 2014, s 10.
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Apr 17, 2014, 00:33 AM
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This our penultimate article in our series of essential updates ahead of the family law reforms. It summarises the essential points you need to know about MIAMs for the 22 April 2014.
In a nutshell:
There is a new FPR 2010, Pt 3 and a new Practice Direction 3A to supplement it. The requirement to attend a Mediation Information and Assessment Meeting (MIAM) before making an application has also been strengthened and given statutory force - the requirement is now set out in statute, by the Child And Families Act 2014, s 10.
22 April 2014
The Statutes and Statutory Instruments that make the changes:
FPR 2010 Practice Direction 3A - Non-Court Dispute Resolution
Summary of the changes:
(1) The court must consider, at every stage in the proceedings, whether non-court dispute resolution is appropriate and must consider whether a MIAM took place, whether a MIAM exemption was claimed/mediator's exemption confirmed and whether the parties attempted mediation/another form of non-court dispute resolution and the outcome. The court can adjourn proceedings if it considers non-court dispute resolution is appropriate.
(2) Before filing an application for a private law children proceedings or proceedings for a financial remedy the applicant is required to attend a MIAM (CFA 2014, s 10(1) and FPR 2010, r 3.6). Any application for private law children proceedings or proceedings for a financial remedy must be accompanied by a form containing either: (a) a confirmation from an authorised family mediator that the prospective applicant has attended a MIAM; (b) a claim by the prospective applicant that one of the MIAM exemptions applies; or (c) a confirmation from an authorised family mediator that a mediator's exemption applies.
(3) The MIAM exemptions are:
There is evidence of domestic violence, as specified in Practice Direction 3A.
Child protection concerns
A child would be the subject of the application; and that child or another child of the family who is living with that child is currently the subject of enquiries by a local authority under section 47 of the 1989 Act or the subject of a child protection plan put in place by a local authority.
The application must be made urgently because:
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 any delay caused by attending a MIAM would cause a risk of harm to a child; a risk of unlawful removal of a child from the UK, or a risk of unlawful retention of a child who is currently outside England and Wales; a significant risk of a miscarriage of justice; unreasonable hardship to the prospective applicant; or irretrievable problems in dealing with the dispute (including the irretrievable loss of significant evidence); or
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.
Previous MIAM attendance or MIAM exemption
In the 4 months prior to making the application, the person attended a MIAM or participated in another form of non-court dispute resolution relating to the same or substantially the same dispute or at the time of making the application, the person is participating in another form of non-court dispute resolution relating to the same or substantially the same dispute.
In the 4 months prior to making the application, the person filed a relevant family application confirming that a MIAM exemption applied and that application related to the same or substantially the same dispute.
The application would be made in existing proceedings which are continuing and the prospective applicant attended a MIAM before initiating those proceedings.
The application would be made in existing proceedings which are continuing and a MIAM exemption applied to the application for those proceedings.
There is evidence that the prospective applicant is bankrupt, as specified in FPR 2010, PD 3A and the proceedings would be for a financial remedy.
The prospective applicant does not have sufficient contact details for any of the prospective respondents to enable a family mediator to contact any of the prospective respondents for the purpose of scheduling the MIAM.
The application would be made without notice.
The prospective applicant is or all of the prospective respondents are subject to a disability or other inability that would prevent attendance at a MIAM unless appropriate facilities can be offered by an authorised mediator; the prospective applicant has contacted as many authorised family mediators as have an office within 15 miles of his or home (or three of them if there are three or more), and all have stated that they are unable to provide such facilities; and the names, postal addresses and telephone numbers or email addresses for such authorised family mediators, and the dates of contact, can be provided to the court if requested.
The prospective applicant or all of the prospective respondents cannot attend a MIAM because he or she is, or they are, as the case may be:
in prison or any other institution in which he or she is or they are required to be detained;
subject to conditions of bail that prevent contact with the other person; or
subject to a licence with a prohibited contact requirement in relation to the other person.
The prospective applicant or all of the prospective respondents are not habitually resident in England and Wales.
A child is one of the prospective parties by virtue of FPR 2010, r 12.3(1).
The prospective applicant has contacted as many authorised family mediators as have an office within 15 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 15 business days of the date of contact; and the names, postal addresses and telephone numbers or email addresses for such authorised family mediators, and the dates of contact, can be provided to the court if requested.
There is no authorised family mediator with an office within 15 miles of the prospective applicant's home.
(4) The Mediator's exemptions are:
Mediation is not suitable as a means of resolving the dispute because none of the respondents is willing to attend a MIAM.
Mediation is not suitable as a means of resolving the dispute because all of the respondents failed without good reason to attend a MIAM appointment.
Mediation is otherwise not suitable as a means of resolving the dispute.
(5) Only an authorised family mediator may conduct a MIAM. FPR 2010, r 3.9(2) sets out what a mediator must do at a MIAM (for example, provide information and assess suitability, the risk of domestic violence and the risk of harm to a child).
(6) If the party making the application uses one of the MIAM exemptions listed above the court can inquire into whether the exemption was validly claimed. If the court finds it was not validly claimed the court can adjourn proceedings and direct the parties to attend a MIAM. In deciding whether to adjourn for a MIAM the court will have regard to the factors listed at FPR 2010, r 3.10(3).
(7) FPR 2010, Practice Direction 3A supplements the new Pt 3 and in particular provides useful information (amongst other things) about:
What proceedings are ‘private law proceedings relating to children' (for example, s 8 orders, parental responsibility orders, orders appointing a children's guardian, an order giving permission to change a child's surname or remove a child from the UK, a special guardianship order and an order varying or discharging such an order).
What proceedings are ‘proceedings for a financial remedy' (for example, proceedings for MPS, periodical payments, property adjustment orders, variation orders, pension sharing orders or pension compensation sharing orders, Sch 1 proceedings, neglect to maintain proceedings, alteration of maintenance agreements proceedings, failure to maintain proceedings and applications under MCA 1973, s 10(2) / CPA 2004, s 48(2)).
What evidence can be used for the domestic violence MIAM exemption and the bankruptcy MIAM exemption.
How to find an authorised family mediator.
How to fund a MIAM (Legal Aid is available for MIAMs).
(1) Remember the term ‘Alternative dispute resolution' is OUT and the term ‘non-court dispute resolution' is IN.
Check out our Family Law Reform page, which is a free resource bringing together everything you need to know about the family law reforms in one place. It will continue to be updated post 22 April 2014 with any new developments. On that note, the new version of the Red Book will be published soon with the amended rules and legislation together with insightful expert commentary. The Practice Notes in Practice Plus are currently also being updated to be up to date with all the 22 April 2014 changes too.
Amy Royce-Greensill is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.