Written evidence from Family Mediation Cymru (CFA0072)

HOUSE OF LORDS CHILDREN AND FAMILIES ACT 2014 SELECT COMMITTEE INQURY

Evidence to the House of Lords Select Committee on the Children and Families Act 2014.

26 April 2022

1.              Family Mediation Cymru is the only not-for-profit family mediation service in Wales and one of the only two legal aid providers of family mediation based in Wales.

2.              Our submission of evidence is with regard to section 10 of the Children and Families Act 2014, that ‘before making a relevant family application, a person must attend a family mediation information and assessment meeting.’

3.              The intention of this provision was to encourage more couples to consider mediation and avoid unnecessary litigation. This intention was undermined by the withdrawal of legal aid for legal advice by solicitors under the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 because most referrals to mediation had previously been made by solicitors.

4.              Recent years have seen a gradual revival and increase in the number of MIAMs we have delivered, despite this being affected by the pandemic. The introduction of online MIAMs and mediation sessions during the pandemic has increased the scope and availability of MIAMs for clients who find online meeting more accessible and suitable.

5.              However, we believe the take-up of mediation, through more couples being informed about it through MIAMs, could be significantly increased if the following issues were addressed.

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6.              The potential for mediation to assist more families is not consistently and actively promoted by legal professionals. Clients sometime come to us although they have been informed by solicitors that mediation is not suitable and often at a relatively late stage in negotiations. This can result in the clients having paid unnecessary legal fees and experiencing delays.

7.              Two years ago, the Private Law Working Group set out a list of concerns about recommendations for the use of MIAMs, which they said were too often seen by legal professionals as obstacles, not opportunities [see paras 57-72]. The Working Group found there was strong support for making attendance at a MIAM compulsory for respondents [para 6]. However, it appears that attention is not currently being paid to the enforceability of applicant attendance.

8.              These concerns are reflected in a recently reported judgment, K v K [2022] EWCA Civ 468, the Court of Appeal noted that a case that may well have been suited to mediation instead resulted in a series of court hearings and the children not seeing their non-resident parent for two years. The judgment sets out the requirements for an applicant to be referred to a MIAM and the duty on the court to enforce this, unless there is a statutory exemption. However, in this case the procedure under Part 3 Family Procedure Rules 2010 was not followed [paras 22-46].

9.              The number of Client 2’s who are seen for MIAM is still relatively lower as they are aware that they do not have to attend a MIAM prior to any application being heard in court. However, many Applicants or Client 1’s also decide to go directly to court rather than invite the respondent to Mediation. If the Willingness Test was reintroduced and MIAM’s were free for all attendees, we feel this would greatly increase the number of couples attending Mediation rather than going directly to court.

10.         Legal aid rates for MIAMs and mediation are too low. We can claim £84.00 + VAT from the Legal Aid Agency for a MIAM where a client is eligible through being on a very low income. This figure of £84 is unrealistic for the amount of work each MIAM requires, namely, administration on receiving the referral, sending the client initial information, booking in and setting up the first meeting, a one hour MIAM with a mediator (which includes hearing about their circumstances and providing all the information they need), completing a legal aid assessment which often means repeated request to clients for their evidence and signed forms, sending a letter to the other party or sending forms that they need to make an application to court. We may also have to update solicitors, make safeguarding referrals to local authorities or signpost to other services.

11.         Although successive governments state their policy is to promote family mediation, there has been no increase in Legal Aid rates for undertaking mediation for 20 years.

12.         Despite encouragement to increase the use of Child Inclusive Mediation, the Legal Aid Agency do not pay anything towards sessions where mediators see children and young people and there is no funding toward attending the mandated training required.

13.         Lack of capacity. There is a shortage of accredited legal aid mediators. Training is lengthy and expensive. To train as a fully accredited mediator who can offer Legal Aid, the initial course costs more than £2,900. After completion, students have to find and pay for a Professional Practice Consultant to oversee their work. If they succeed in this, they can offer mediation on a private paying basis relatively quickly. However, to qualify to provide mediation that is within scope for Legal Aid, the trainee must complete a portfolio of work which demonstrates a wide range of competencies. Mediators working toward accreditation also often have to pay for a placement to work alongside experienced mediators whilst completing the portfolio, which has to be assessed before full mediator status is achieved. This process can take between 18 months and 3 years. Historically, the Legal Aid Agency offered training contracts to encourage people with the correct skills to take up training and assist them in working toward their accreditation. This is no longer offered, and it is extremely difficult to recruit new mediators, particularly those whose work has been accredited.

14.         We believe that mediation as a profession should be regulated and all mediators should be fully accredited, having completed portfolios which are assessed to ensure that the quality of mediation is upheld and standardised. However, if the lack of funding is not addressed, the shortage of mediators will continue.

Contact details: Helen Johnson, Director

Email:  helen.johnson@familymediationcymru.co.uk             

April 2022