One of the key changes in the family justice system on 22 April 2014 in England and Wales is the mandatory requirement to attend a mediation information and assessment meeting (known as a MIAM) before the commencement almost all family court proceedings relating to children or financial orders. This requirement has been in place since April 2011 but is now much stiffer and is likely to be strongly enforced by the courts. There has even been some suggestion that, now or later, applications will not be accepted by the court staff without the MIAMs certificate. Certainly it is quite likely that preliminary orders will be made to require attendance before the first hearing. Adjournments for attendance or to take part in dispute resolution are also likely.
But what about international cases? Does it apply? Which of the exemptions (FPR 2010, r 3.8) may be applicable? An international case is entirely appropriate for mediation, but may not be appropriate at the outset. This note looks at the exemptions as may be applicable.
Attendance is not required in certain proceedings, eg 1980 and 1996 Hague Convention, forced marriage cases, etc. Mediation may still be possible and indeed my colleague, Denise Carter OBE has trail-blazed mediation in complex, polarised and fast moving child abduction work. So although a MAIM may not be needed or appropriate before the issue of proceedings, mediation may still be very appropriate subsequently, eg when the position has been safeguarded through initial orders.
One exemption is that there is no MIAM mediator within 15 miles of the home of the applicant. Not all mediators undertake MIAM work, primarily because of the low cost. There are certain parts of the country where there are relatively few MIAM mediators. Most obviously if the applicant is abroad, outside of England and Wales, this exemption from attendance will apply. As far as I am aware, MIAM mediators are not yet offering electronic mediation information meetings although some of us conduct our mediations remotely. So this is an obvious exemption in an international case. Once the proceedings are underway, it may be appropriate to consider some form of mediation.
An exemption of chief importance in international cases is ‘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 seized of the dispute before a court in England or Wales'. This is not just Brussels II race to issue first although this is obviously a classic case for an exemption. It is any case in which proceedings could be issued in another jurisdiction. The drafters are to be congratulated on a very sensible wording. So if in any case proceedings in another jurisdiction could be commenced, then there is an exemption.
There is an exemption for matters of urgency and where an application would be made without notice (5.1 of PD 18A). This would naturally cover proceedings commenced with a preliminary without notice application, eg worldwide freezing orders.
Following on from the exemption if the applicant has a home abroad, ie not within 15 miles of a MIAM mediator, there is a further exemption when either the applicant or the prospective respondents are not habitually resident in England and Wales. It is in the alternative so applies if either party are not habitually resident here. It includes prospective respondents. So even if the applicant has a home in England and could attempt, there is an exemption if the respondent is habitually resident abroad. It is not unusual in an international case for one of the spouses to be habitually resident abroad. Care naturally would need to be taken in using this exemption because it might be evidential on any jurisdiction dispute.
MIAM attendance is not needed if the applicant does not have sufficient contact details for any of the prospective respondents for the MIAM mediator to make contact. In a number of international cases, contact has been lost over the years since separation and therefore this category would apply.
Other exemptions may apply in the particular circumstances of the case.
It does not apply to the commencement of divorce proceedings but only applications for orders relating to most children or financial orders. Even if there was no MIAM attendance at the outset because of one of the exemptions, it seems more likely now, post-22 of April 2014, that the court of its own initiative will require attendance once the proceedings are underway.
The worry of course is that at the mediation information meetings, the MIAM mediator may not be alert to the international elements. Some parties may be encouraged to engage immediately in mediation when instead they should be taking quick and careful advice either here or abroad. It is a frustration that there is insufficient recognition, as far as I am aware, across the mediation professions, including nonlawyer mediators, of the importance of the international element and quickly referring on to specialists.
A very good starting point would be a recognised body of mediators in England and Wales with international (children and finance) expertise to whom MIAM mediators could refer. Apart from some very specialist child abduction mediation training, I have not seen any mainstream mediation training courses on international aspects.
Mediators and settlement orientated solicitors fully support the MIAM initiative. But there are particular and distinctive elements in international cases which may often make a MIAM unsuitable or inappropriate before the issue of proceedings. So the exemptions should be appropriately used. Once jurisdiction is established and positions safeguarded, either a MIAM or referral to mediation may then be very beneficial. Even if one party is abroad, mediation is certainly possible. There are several innovative solutions to help an international couple mediate with specialist mediators.
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He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.
David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on firstname.lastname@example.org.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.