Court should be a Last Resort
Everyone agrees that court should be a last resort particularly with regard to the arrangements for children. Over time the court have removed themselves more and more from child arrangements. Initially a judge had to give his approval at an in person hearing, to the proposed arrangements for the care of the children before a divorce could be obtained. That then changed to the court simply receiving written information and giving their approval (or otherwise) to it. Today a couple can be divorced without referring even to the fact that they have children within the divorce application.
A Step Further for Children Matters
The court is now taking its desire for children issues to be resolved outside of the court process a step further, influenced by the significant delays in the court system and the pressures on both the court and Cafcass.
The rules always contained provision for the court to consider whether non-court dispute resolution was appropriate and this was supposed to happen at every stage of the proceedings. An application to the court for a child arrangements order also had to contain a certificate from a mediator confirming that the applicant had attended a meeting with the mediator (known as a MIAMS) or the person applying had to claim an exemption from attending that meeting. However, in practice, the requirement for a MIAMs certificate and the court’s consideration of non-court dispute resolution was honoured in the breach, with the Judges usually taking the approach “Well the parties are both here, lets get on with it!”.
Non-Court Dispute Resolution Encouraged
From April 2024 tighter measures are now in place to try and divert more disputes concerning children into non-court dispute resolution, primarily mediation but also arbitration, solicitors’ negotiation or collaborative law.
A summary of the key changes:
- There will be fewer reasons that an applicant can identify to exempt him or her from attending a MIAM appointment
- Some of the exemptions have been wholly removed, such as lack of availability of a physical office or residence of any party outside of England and Wales, as there is an expectation meetings can happen remotely
- Where an exemption is claimed, proof will be needed. This is intended to catch out any “wishy washy” excuses
- If the exemption claimed is that a previous non-court dispute resolution attempt has failed, written confirmation will be required from the provider
- Previously it was also possible to claim an exemption on the basis that the person who would be responding to the application would not attend a MIAM. That exemption has been removed.
- The intention is that the court will now scrutinise this more closely and where an application does not have an appropriate MIAM certificate or properly claimed exemption, the court can direct the parties to attend a MIAM.
Once proceedings are underway, the court can also now encourage the parties to look into non-court dispute resolution, between every hearing. It remains the law that the parties cannot be compelled to use non-court dispute resolution but the court can encourage it and can back up that encouragement by making costs orders against any person whom they feel has unreasonably refused to attend a MIAM appointment or engage with another form of non-court dispute resolution, without good reason.
Statistics gathered from the government mediation voucher scheme show a 77% settlement rate either in whole or in part and mediators believe that, because the parties have been in control of the outcome, the arrangements are likely to be longer lasting than those imposed by the court. By contrast around 25% of cases decided by the court, come back before the court again.
Financial Support
In making these changes that encourage mediation alongside other forms of non court dispute resolution, it is good to know there is some financial support behind this for couples. The government announced in January 2024 the indefinite continuation of the £500 non-means tested voucher scheme.
This does not prevent the cases that need to be dealt with by a court getting in front of a Judge, where there is domestic abuse, drug or alcohol misuse, physical or mental ill-health, high conflict individuals or psychological or personality disorders. If this new emphasis is successful in diverting cases that can be resolved elsewhere, out of the court system, it could allow the Judges more time and the opportunity of continuity to ensure those cases are better handled by the court system.
By Karen Anker, Family Solicitor at Cambridge solicitors Barr Ellison.
