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Changes to Family Mediation Following the Children and Families Bill

04 Jun 2014

Introduction

The Family Justice Review commissioned by the Coalition Government in 2012 has resulted in intense activity across the whole spectrum of family justice. The past year has been one of significant change with major structural and procedural developments still to come. These developments fall outside the scope of this short paper/presentation. However, in brief, the structural change has been brought about by long-awaited creation of a single family court by the Crime and Courts Act 2013.

The family law jurisdiction currently exercised by the county and family proceedings courts will be transferred to the family court. It is a national court which may sit at any place determined by the Lord Chancellor.

The court’s powers will be aligned across all levels of the judiciary and may be exercised by any judge of the family court (including magistrates) subject to rules or directions about the allocation of particular types of case to a specified tier of judge.

Cases will no longer be described as being in the “South Shields County Court/South Tyneside Family Proceedings Court” but as the “Family Court sitting at South Shields” in the early stages at least the existing court buildings will retain their present function, but the unification of jurisdiction across all tiers of the judiciary should make it easier for judges and magistrates to move between different courthouses where appropriate. It is also anticipated that justices’ clerks (although not judges of the family court) will be permitted to carry out specified functions of the family court or a judge of the court.

The second major piece of legislation giving effect to the Government’s response to the Family Justice Review is the Children and Families Bill which will be enacted on 22 April 2014.

The Bill contains important provisions in relation to private law children proceedings including the introduction to section 1 Children Act 1989 a new provision in relation to parental involvement.
Clause 10 introduces a requirement for a person to attend a family mediation information and assessment meeting (“MIAM”) before making any relevant family application. This strengthens and gives statutory force to the provisions currently in Practice Direction 3A of the Family Procedure Rules 2010 in relation to the steps to be taken before issuing private law children proceedings or a financial remedy application.

The circumstances in which a potential applicant will not be required to attend a MIAM will be set out in revised provisions of PD3A and a Form FM1 will have to be filed with any relevant application. The rules will also provide for the court’s powers where there has been a failure to comply with the statutory requirement.

The Family Procedure Rule Committee have not published revised PD3A so it would be of benefit to remind practitioners/mediators of the present provisions which will apply until the revised ones have been published.

Part 3 Family Procedure Rules 2010

The Family Procedure Rules 2010 Practice Directions established a comprehensive modernised code of family procedure replacing a large body of unconsolidated rules, guidance and forms for different courts and different types of proceedings. The Rules came into force on the 6 April 2011.

The provisions of Part 3 and the issue of Alternative Dispute Resolution (ADR) were very important.

The court is required to consider at every stage of the proceedings whether ADR is appropriate and can adjourn the proceedings at any stage in order to enable the parties to engage in ADR.

Practice Direction 3A contains the pre-application protocol on Mediation Information and Assessment. This in effect initiates ADR prior to the commencement of proceedings. Whilst the Legal Services Commission previously tried to make consideration of ADR a pre-requisite of applying for public funding the protocol brought this into the domain of the court at the pre-proceedings stage.

As stated in the PD the rationale is to acknowledge that an adversarial court process is not always best-suited to the resolution of family disputes, particularly private law disputes relating to children.

The Practice Direction sets out best practice to be followed by any person who is considering making an application to court for an order in relevant family proceedings. Relevant family
proceedings are defined in Annex B of the PD and include most private law applications except emergency applications and applications for enforcement orders.

The Pre-Action Protocol itself is set out in Annex A. Applicants are expected to contact a family mediator to arrange the attendance at an information meeting about mediation or other forms of ADR. In the Protocol this is referred to as a “Mediation Information and Assessment Meeting” (“MIAM”).

The applicant has to provide the mediator with the contact details of the prospective respondent so that that party can also be invited to attend a meeting .The respondent will be invited, if they agree, to either a joint meeting if appropriate or a separate meeting.

Paragraph 8 of the Protocol states that if after complying with the Protocol any application is made to the court, the applicant should at the same time file a completed Family Mediation Information and Assessment Form or FM1 confirming attendance at a Mediation Information and Assessment meeting or giving reasons for not having attended such a meeting.

The applicant is not expected to attend a MIAM when making an application to the court in relevant family proceedings if any of the listed circumstances applies:

On Part 2 of the FM1 Form

The mediator is satisfied that mediation is not suitable because:

  • another party to the dispute is unwilling to attend a MIAM and consider mediation, or
  • the case is not suitable for a MIAM, or
  • a determination by a mediator within the previous four months has been made that the case is not suitable for a MIAM or for mediation.

On Part 3 of the FM1 Form

  • Any party has made an allegation of domestic violence against another party and this has resulted in a police investigation or the issuing of civil proceedings for the protection of any party within the last 12 months.
  • The dispute concerns financial issues and the applicant or another party is bankrupt’.
  • The parties are in agreement and there is no dispute to mediate.
  • The whereabouts of the other party are unknown.
  • The prospective application is for an order in relevant family proceedings which are already in existence and are continuing.
  • The prospective application is to be made without notice to the other party.
  • The prospective application is urgent, meaning:
    • there is a real risk to the life, liberty or physical safety of the applicant or his or her family or his or her home; or
    • any delay caused by attending a MIAM would cause a risk of significant harm to a child, a significant risk of a miscarriage of justice, unreasonable hardship to your client or irretrievable problems in dealing with the dispute, such as an irretrievable loss of significant evidence.
  • There is current social services involvement as a result of child protection concerns in respect of any child who would be the subject of the prospective application.
  • A child would be party to the prospective application by virtue of Family Procedure Rule 12.3(1).
  • The applicant contacts three mediators within 15 miles of his home and none is able to conduct a MIAM within 15 working days of the date of contact.

Part 4 of the FM1 Form

Any other reason not specified in parts 2 or 3 of the FM1 Form and which should be set out in the form.

Although the FM1 is now very familiar, a copy has been included in the notes.

Funding

The Legal Services Commission (now the Legal Aid Agency) made funding available to applicants subject to financial eligibility criteria. Should the applicant qualify for public funding, mediation is free for the respondent.

Clearly where neither the applicant nor the respondent is financially eligible for public funding they will be required to pay the mediator’s fee.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)

On 1 April 2013, as legal aid was withdrawn from some 255,000 private family law cases under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), an extra
£10m was allocated to mediation.

This brought the total amount to meet the needs of divorcing or separating couples eligible for legal aid to about £25m for 2013-2014.

Despite the additional public funding family mediation fell substantially in 2013.

According to figures from the Ministry of Justice, only 6,090 couples attended a formal meeting to explore mediation options between April and August of 2013 in England and Wales – down from 12,415 in the same period in 2012.

Only 4,000 went on to embark on mediation in the first five months of the new system, down by 33 per cent.

The providers of mediation with a legal aid contract have seen their monthly income fall by as much as two-thirds since LASPO came into force.

The rules for eligibility to legal aid for family mediation have also been tightened, and this has further cut the income of mediation services.

The decline in referrals to mediation has been accompanied by a surge in the number of people applying directly to the courts often without the help of a lawyer due to fear of what their legal costs would be.

We know that people who represent themselves feel defensive; helpless and lost as a court is a completely alien environment to most litigants in person.

The situation is even worse for people turning up at court as respondents to an application as they often don’t understand what is going on and why they are there and they may not
always have a full set of papers.

Data accessed from the Relate website shows a sharp decline of interest in their mediation services. Comparing April to September 2012 with April to September 2013 the data shows a
sharp decline in numbers:

  • 52% decrease in Legal aid funded Mediation Information and Assessment meetings (MIAMs), with MIAMS down by 26% overall
  • 35% decrease in couples starting legal aid funded mediation (down 18% in total)
  • 72% decrease in the number of solicitor referrals to Relate’s mediation services

The decline in mediation referrals should be reversed with the introduction shortly of the provisions enacted by the Children and Families Act 2014.

Children and Families Act 2014

The statute comes into force on 22 April 2014.

The most significant changes for mediators and solicitors dealing with private law children work relate to:

  1. Compulsory MIAMS (section 10);
  2. Continued parental involvement (section 11);
  3. Child arrangements orders (section 12).

The Private Law Programme will shortly be replaced by the Child Arrangements Programme (‘CAP’).

The CAP is designed to make the necessary procedural changes to accompany the changing landscape of private law children work.

MIAMS

Section 10(1) of the Act provides:

“Before making a relevant family application, a person must attend a family mediation information and assessment meeting.”

The Explanatory Notes to the Children and Families Bill accessed from the UK Parliament website state:

Subsection (1)

Provides that any person who wishes to make a relevant family application must first attend a family mediation information and assessment meeting (a “MIAM”) to find out about and
consider mediation, or other forms of non-court based dispute resolution. Subsection (1) does not make a distinction between applicants who are publicly funded and applicants who are not.

Subsection (2)

Enables provision to be made in Family Procedure Rules for how the requirement in subsection (1) is to work in practice. This may include provision:

  • Setting out circumstances in which the requirement to attend a MIAM before making an application to court will not apply (subsection (2) (a)). For example, the Government intends that in cases which are urgent (as to be defined) or where a MIAM cannot be arranged within a specified time, or where there is evidence of domestic violence, the requirement to attend will not apply.
  • About how attendance at a MIAM is arranged and how a MIAM is to be conducted (subsection (2) (b)).
  • For the court to refuse to issue or otherwise deal with an application if the requirement to attend a MIAM should have, but has not, been complied with (subsection (2) (c)).
  • About the evidence which is to be considered when determining whether the requirement to attend a MIAM applies and, if so, whether it has been complied with (subsection (2) (d)).

In short, the effect of section 10 (1) of the Act is that MIAMS are now compulsory and so all clients will be expected to attend such a meeting before making an application to the court.

However, what the Act does not do is to provide the detail of how that general principle is to operate in practice, it being left (by virtue of clause 10(2)) to the Family Procedure Rules to
specify the circumstances in which MIAM attendance is not required; to make provision about the convening and conduct of a MIAM; to set out the consequences where the applicant has not attended a MIAM; and to make provision as to the evidence that is to be considered when the court determines whether there has been any contravention of the attendance provision.

Until the Family Procedure Rule Committee comes up with further details concerning the interpretation of section 10, it is suggested that the exemptions set out in Annex C of Practice Direction 3A of the FPR 2010 (as earlier set out) are followed and an FM1 completed in every case.

The requirement to complete and file an FM1 applies to a “relevant family application” which is defined by s 10(3) of the Act as an application which

  1. is made to the court in, or to initiate, family proceedings [as defined by the Courts Act 2003, s 75], and
  2. (b) is of a description specified in Family Procedure Rules.

In broad terms this will include all the most usual applications in private law proceedings relating to children and in proceedings for a financial remedy.

It is clear that any application to court will be rejected unless accompanied by a completed FM1 signed by the applicant’s solicitor or a mediator.

Brief details on other changes brought in by the Act

Section 11

Section 11 is entitled “Welfare of the child: parental involvement” and introduces a presumption of continued parental involvement into the welfare checklist in s 1 Children Act 1989.

It is worth quoting the amended s 1 in full (the amendments by the 2014 Act are shown in bold):

“1 Welfare of the child

    • (1) When a court determines any question with respect to—
      1. the upbringing of a child; or
      2. the administration of a child’s property or the application of any income arising from it,

      the child’s welfare shall be the court’s paramount consideration.

 

    • (2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

 

    • (2A) A court, in the circumstances mentioned in subsection (4) (a) or (7), is as respects each parent within subsection (6) (a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

 

    • (2B) In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.

 

    • (3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to
      1. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
      2. his physical, emotional and educational needs;
      3. the likely effect on him of any change in his circumstances;
      4. his age, sex, background and any characteristics of his which the court considers relevant;
      5. any harm which he has suffered or is at risk of suffering;
      6. how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
      7. the range of powers available to the court under this Act in the proceedings in question.

 

    • (4) The circumstances are that—
      1. the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or
      2. the court is considering whether to make, vary or discharge [a special guardianship order or] an order under Part IV.

 

    • (5) Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.

 

    • (6) In subsection (2A) “parent” means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned –
      1. is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and
      2. is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.

 

  • (7) The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother).”

In short Section 11 means that whenever the court is considering one of the following applications it will need to have regard to the presumption of continued parental involvement:

  • An application for a section 8 order or a special guardianship order, and for variation or discharge of such orders (s 1(4) CA 1989);
  • An unmarried father’s application to the court for parental responsibility (s 4(1)(c) CA 1989);
  • An application for removal of parental responsibility granted under s 4(1) CA 1989 (s1(2A) CA 1989);
  • An application by an unmarried second female parent for parental responsibility (these types of case arise out of lesbian couples undergoing IVF) (s 4ZA(1)(c) CA 1989); and
  • An application for removal of parental responsibility granted under s 4ZA (1) (c) (s 4ZA (5) CA 1989).

Section 12

Introduces child arrangements orders

The effect of s 12 of the Act is that “contact” and “residence” orders are no more. Instead, there will be a single order, a “child arrangements order”, which deals with the arrangements as to “with whom a child is to live, spend time or otherwise have contact” and
“when a child is to live, spend time or otherwise have contact with any person.”

As one might expect, this change has a lot of knock-on effects and schedule 2 to the Act sets out the consequential amendments. Perhaps the most interesting are the changes in the context of child abduction.

Section 1(1) of the Child Abduction Act 1984 (“CAA”) makes it a criminal offence to take a child under 16 out of the UK without appropriate consent. However, s 1(4) of that Act provides that a person who has a residence order in respect of a child may take that child
out of the UK for a period of up to one month. Schedule 2, para 47 amends section 1(4) CAA so that it refers to a person “named in a child arrangements order as a person with whom the child is to live”.

Finally a brief introduction to the Child Arrangements Programme (“CAP”); a
detailed consideration of which is outside the scope of these notes.

Summary

    • The CAP was devised by the Private Law Working Group (“PLWG”) between September and November 2013 to make necessary changes to the practice and procedure of Private Family Law in relation to children in light of the introduction of the Single Family Court and the changes brought about by the Children and Families Bill 2013.

 

    • CAP is intended to highlight the child as the focus of the scheme; this is in place of ‘Pre-application Protocol’ (PD3A) 1 and ‘Private Law Programme’ (PD12B) which inherently emphasise a court process.

 

    • To reduce the duration of a private law and the tendency of litigants to become dependent on the court process, the CAP recommends that courts should not retain involvement by ordering a Review or Review of a Final Order unless it is necessary and in the interests of the child.

 

    • If a section 7 report is ordered, Cafcass should, where possible, recommend a stepped phasing-in of arrangements for the child so that there is no need to return to court at each stage.

 

  • Where professional oversight or involvement is felt to be needed after a substantive order designed to settle the dispute, the court may consider making: i) An order under section 11H CA 1989 (Cafcass Monitoring); ii) A Family Assistance Order under section 16 CA 1989) (in accordance with the practice in section 12M CA 1989, and if all named in the order agree to the making of such an order and the child lives.

Dispute Resolution – The CAP also emphasises the urgent need for people to be guided down the appropriate route to resolve their disputes away from the court system.

Parenting Plans – The CAP notes that the Government is currently piloting the wider use of “Parenting Plans” specifically at an early stage of parental separation and recommends the use of the Parenting Plan published by Cafass. It suggests that consideration may need to be given to the weight to be attached to a Parenting Plan in the event of a court dispute and any such Plan should be admissible in any subsequent proceedings to establish what the couple had considered a reasonable arrangement at the time.

Mediation and Dispute Resolution during proceedings – The CAP identifies that mediation should not be seen as a ‘once and for all’ exercise. Parties can be particularly effectively engaged at different stages of a dispute, away from the court, even once proceedings have commenced. The CAP specifically references points at which re-referral to
MIAM or dispute resolution is to be actively considered such as when the parties return to court after attending a Separated Parents Information Programme (SPIP); at that point the parties could benefit from such assistance (Cafcass will not be likely to attend this later
hearing, being present only for the FHDRA or possibly fora final hearing).

Dispute Resolution Appointment (DRA) – The CAP recommends that such an
appointment could be directed when either the section 7 or other expert report is available, or for example the parties have attended a SPIP. This hearing will be likely to have a short time-estimate (for instance, 30-45 minutes).

The DRA will be convened for the court and the parties to cover the following issues:

  1. To identify the key issue(s) (if any) to be determined and the extent to which those issues can be resolved or narrowed at the DRA;
  2. To consider whether the DRA can be used as a final hearing;
  3. To resolve or narrow the issues by hearing evidence;
  4. To identify the evidence to be heard on the issues which remain to be resolved at the final hearing;
  5. To give final case management directions including: filing of further evidence; filing of a statement of facts/issues remaining to be determined; filing of a witness template and / or skeleton arguments; ensuring compliance with PD27A (the Bundles Practice Direction) and
    listing the Final Hearing.

Child contact centres – The CAP emphasises that supervised and supported contact centres play a key role in complex private law cases, providing a secure and child centred environment for contact and recommends that there should be more obvious and ready mechanisms available for parents and family members to self-refer to contact centres in the
right cases. In a case in which a Judge / Justice wishes to engage a contact centre, directions should be given to the parties to engage in the self-referral process, providing proof to the court of their compliance with that process.

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