Family law: What changes does the December 2023 Practice Direction Update contain?

In March 2023, the Family Procedure Rule Committee published a consultation on strengthening existing rules and Practice Directions to encourage speedier resolutions for private family disputes, as well as child and financial remedy arrangements.

The Government has now formally responded to that consultation with a Practice Direction Update, which lists a number of amendments to the Family Procedure Rules 2010 supplementary document. This update is “intended to increase MIAM [(Mediation Information and Assessment Meetings)] attendance and the earlier resolution of private law proceedings relating to children and financial remedy proceedings.”.

The updates include the following:

• A MIAM should be held within 15 business days of contacting a trained mediator, who is a qualified independent facilitator and will provide information about methods of non-court dispute resolution, such as mediation, arbitration, evaluation by a neutral third party and collaborative law.

  MIAM exemption:

  • To ensure the validity of any MIAM exemption claims, inquiries will be made by the court into any such claims.

  • If a MIAM exemption claim is found to be invalid or no longer applicable, the court may suggest the applicant or the parties attend a MIAM, and is entitled to adjourn proceedings to that end.

  • If any party attended non-court dispute resolution within four months prior to the date of the current court application for the same or a similar dispute, a MIAM exemption applies. In this case, evidence is required in the form of “written confirmation from the non-court dispute resolution provider that the prospective applicant has attended”.

  • Where a MIAM exemption claim requires evidence, this must be provided with the application form.

• In each case, the court has a duty to consider whether non-court dispute resolution would be appropriate. Unless an applicant has claimed a MIAM exemption based on domestic abuse or a form C1A (allegations of harm and domestic abuse) has been filed, the court may ask the parties for their views on non-court dispute resolution, though it cannot require parties to attend.

• The court has general powers to adjourn proceedings, which it may use to create gaps between hearings. If the court considers the parties should use this time to attend non-court dispute resolution, it should make this clear to the parties.

• If the above happens and any party fails to attend non-court dispute resolution, this will not affect any substantive decision the court makes in the proceedings. However, this may be taken into account when the court is making a decision as to whether an order for costs should be made.

Stone King Partner and Head of the Family and Mediation Team, Caroline Fell, said, “We welcome these changes as, together with the letter that the Ministry of Justice is sending to  encourage court applicants to consider mediation, this update asserts the Government’s stance that cases should be resolved, if at all possible, outside the court process, avoiding the stress, costs and delay which this often entails.”

More information on the updates, including the dates from which they will come into force, are detailed in ‘Practice Direction Update: No. 6 of 2023’.

It is worth noting that the Government is believed to be dropping plans to make mediation compulsory, according to a Financial Times report on 24 January 2024. (Please note the Financial Times uses a paywall.)

However, the Government is said to remain committed to the benefits of mediation and separating couples are still being encouraged to use the service.