Adopting a child can be one of the most rewarding and fulfilling things anyone can do. But what is involved in adopting a child in England and Wales and how do you adopt a child?
First, we must consider adoption types and eligibility requirements.
There are two types of adoption: adoption though an adoption agency and non-agency adoption.
Agency adoption is where the child is placed with the prospective adopter by an adoption agency. The child may be voluntarily placed for adoption or removed due to welfare concerns. The agency will need to approve the prospective adopter before the child is placed with them.
A non-agency adoption is essentially where the child is already known to the prospective adopter. Examples include step-parent adoption, adoption by close relatives, and adoption by local authority foster carers.
Anyone aged twenty-one or over may apply to adopt a child. The application may be made by one person or by a couple. One parent must be at least eighteen, while the other must be twenty-one or older.
In most cases, the child must have had their home with the prospective adopter for a minimum period before the application can be made (the ‘residence requirement’). The length of the period depends upon who is applying for the adoption order.
For example, if the child was placed with the applicant by an adoption agency then the child must have had their home with the applicant(s) at all times during the period of ten weeks preceding the application, and in the case of a step-parent adoption the child must have had their home with the applicant(s) at all times during the period of six months preceding the application.
The agency adoption process begins with the prospective adopter(s) contacting the adoption agency. Once they have been approved and matched with a child they may apply to the court for an adoption order.
In non-agency cases the prospective adopter must notify the local authority in writing of their intention to apply for an adoption order, at least three months before the application is made. The local authority will then investigate the matter and prepare a report for the court. After a three-month notice period, prospective adopters can apply to the court for an adoption order.
The court requires parental consent or may dispense with it for the adoption order to proceed. Consent can be dispensed if parents are unavailable, incapable, or if child welfare necessitates dispensation, per court discretion.
The court process is similar for all types of adoption. It begins with the completion of an application and usually involves at least two hearings: the final hearing and before that a preliminary directions hearing, when the court will consider what needs to be done before the final hearing, such as what steps should be taken to find a birth parent if their whereabouts are not known.
The court will make the adoption order if it is satisfied that that is the best thing to do for the welfare of the child. The adoption order will give parental responsibility for the child to the adopters or adopter, and takes it away from the child’s birth parent or parents.
How long it will take to adopt a child can vary greatly, and will depend upon a number of factors. (The following time estimates do not include the residence requirement, referred to above).
If the adoption is through an agency the adoption approval process will normally take about six months. After that the prospective adopter(s) will be matched with a child for adoption, a process that usually take between six and twelve months, but can take longer. Finally, there is the court process of the adoption application, which will usually take about six to nine months.
In the case of a non-agency adoption there is the three month notice period before the application can be made, as mentioned above. Once the application is made the court process will again usually take about six to nine months.
For further information on how we can help, please see our adoption page.
Walker Family Law is an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.
Please contact us if you require any further information.
Last week we wrote here about the importance of cohabitation agreements, explaining what they are, and whether they are legally binding. This week we look in a little more detail into why you need a cohabitation agreement if you are in, or are about to enter into, a cohabiting relationship.
Cohabitation agreements serve various purposes, primarily outlining arrangements for children, property, and finances in case of relationship breakdown. This can ensure that each party is reasonably provided for following the breakdown.
In 2021 there were about 3.6 million cohabitating couples in the UK. The outcome of a cohabiting relationship breakdown is crucial for numerous individuals annually.
So what does happen if there is no agreement?
No legal recognition of “common law marriage” grants cohabiting couples the same rights as married ones. It is a myth. No matter how long the couple have lived together, their relationship will never become a ‘common law marriage’.
Accordingly, when a cohabiting relationship breaks down neither party has a right to claim any financial support for themselves from the other party, as they would if they had been married. Therefore they cannot claim maintenance for themselves, and they cannot claim a share of the other party’s property, including their pension.
Essentially, the legal position is simply that each party will keep what is theirs. If one party solely owns the home they shared, they retain ownership following the relationship’s end. Only in certain limited circumstances will a non-owning party be able to claim a share of the property, usually where they have contributed towards the purchase of the property.
All of this can obviously mean that at the end of a relationship the non-owning party can be left both homeless and destitute, no matter how long the relationship lasted.
The custodial parent may seek financial support, potentially including housing, from the other party for the children’s welfare. This could mean that they can remain in the property, even if it belongs to the other party. However, the property will revert to the other party when the children grow up, again leaving the non-owning party homeless.
To drive home the importance of entering into a cohabitation agreement, here are two real-world examples of what can happen on relationship breakdown if there is no cohabitation agreement.
Both examples are taken from research undertaken back in 2007 by the University of Bristol.
The first example came from a lady called ‘Frances’.
Frances and her partner met while they were both university students and started living together in their early twenties. They had four children together. After twenty years Frances decided to separate, due to her partner’s physical and emotional abuse. Frances obtained an injunction requiring her partner to leave the home.
Frances remained in the family home with the children, and obtained an order that they should reside with her.
The family home was owned solely by her partner, who also bought a second property, just prior to the separation.
At the time of the research Frances and three of the children were still living in the family home. The other child was living with her partner, in his second property.
Frances had not worked at all since having the children. Her partner, on the other hand, worked in the financial sector, and always brought in a high income.
We were told that Frances had accepted totally, “though with initial shock and dismay”, that she had no claim in her own right against either of her partner’s properties. She would only be able to remain in the family home during the children’s minority.
The second example came from a lady named ‘Helen’.
Helen and her partner began cohabiting, initially in her rented flat. Her partner then bought a derelict property, in his sole name. The couple then worked together doing major renovation works to the property. After a while they both moved in to the property.
During the three years they lived together, Helen paid an agreed sum into her partner’s bank account, as her share of the bills and mortgage.
The relationship broke down and Helen sought a financial settlement to recompense her for the work she had done to the property. But her partner refused to negotiate, and Helen eventually abandoned her claim, having spent £3,000 in legal costs.
The outcomes of both of these examples could have been so different if Frances and Helen had had a cohabitation agreement.
For further information on how we can help, please see our Cohabitation agreements page.
For more information about cohabitation agreements and how we can help, see this page.
Under the present law couples who cohabit in England and Wales have few rights against each other should the relationship break down. As we will explain later on, a cohabitation agreement eliminates this issue.
Despite common belief, there’s no ‘common law marriage’, granting rights similar to married couples after cohabitation for a specified duration.
In a cohabitation breakup, neither partner can seek maintenance, and property ownership remains separate: ‘what’s yours is yours.’
This can obviously result in considerable hardship for the party who is weaker financially.
The situation is particularly serious if the property in which the parties lived is owned by just one party, meaning that the other party can be left homeless. There are some limited ways in which the non-owning party can claim a share in the property, for example where they have contributed towards its purchase, but such claims are notoriously difficult and expensive.
In case of death, a cohabitant may face financial vulnerability as they don’t automatically inherit their partner’s estate.
Parties can mitigate these risks by drafting a cohabitation agreement before they start living together.
A cohabitation agreement outlines the division of finances, property, and child custody arrangements in the event of separation. Additionally, it can address arrangements if one party becomes ill or in case of death, complementing any existing wills.
Accordingly, the agreement can deal with such things as:
The specifics of the agreement will vary based on individual circumstances and the parties’ preferences.
A cohabitation agreement is legally binding if properly drafted, fair, and signed without coercion or pressure.
Both parties must fully disclose their financial situations before signing the agreement to ensure fairness and reasonableness.
Both parties should ideally seek independent legal advice before signing the agreement to ensure they fully understand its implications.
Note that if there is any change in the parties’ circumstances after the agreement is entered into, for example if they have children or purchase property, then advice should be taken as to whether the terms of the agreement should be reviewed.
A cohabitation agreement is a legal document and, as such, should really be prepared by a specialist lawyer, who will ensure that it is clear, that it properly gives effect to the agreed terms, and that it is legally binding.
Whilst you can try to save money by writing your own cohabitation agreement, this could well turn out to be a false economy if the agreement turns out not to be legally binding.
Last year the Government ran a consultation seeking views, particularly from family justice professionals and mediation service providers, on resolving private family disputes earlier through family mediation.
The consultation proposed supporting parents to resolve family matters without court involvement, including pre-court parenting programs and compulsory mediation attempts. Encouraging mediation before court application was another proposal, promoting amicable resolution for individuals involved in family matters. Those avoiding reasonable mediation efforts could face penalties, including covering part/all of the legal costs of the other party.
The Government has now published its response to the consultation.
The central proposal in the consultation was the introduction of the compulsory mediation requirement, in appropriate cases.
But the Government has decided against introducing such a requirement.
The Government proposed exemptions to mandatory mediation, particularly in cases involving domestic abuse, seeking feedback on the proposal.
However, many respondents to the consultation were concerned that the proposed exemptions would not be enough to adequately protect survivors of domestic abuse from being required to attend mediation when it is not suitable or safe for them. An example of this is where they do not fully realise that they have experienced domestic abuse.
In the light of these responses the Government has decided not to introduce the requirement “at this time”.
The Government is enhancing mediator roles in dispute resolution by improving domestic abuse screening and mediator training.
The Government aims to encourage mediators to provide child-inclusive mediation and increase the uptake of this service among families. One barrier to this which was mentioned in response to the consultation was that some mediators have been unable to apply for the enhanced Disclosure and Barring Service (DBS) check, to provide some assurance to families that they are safe and can be trusted to carry out child-inclusive mediation. The Government is therefore working with the Family Mediation Council to develop guidance for mediators to help them access this service and ensure they can apply for the enhanced DBS check. They aim to boost child-inclusive mediation by providing guidance, ensuring a safe and secure process for families and mediators.
The Government pledges ongoing support for the Mediation Voucher Scheme, offering £500 towards eligible cases’ mediation costs. By March 2025, the Government’s £23.6 million investment will aid 24,600 families, resolving issues without resorting to court.
Many respondents to the consultation considered that the lack of free, publicly funded, family law legal advice was a barrier to early dispute resolution, saying that providing funded access to early legal advice would improve the information available to parents, allowing them to make better informed decisions about their dispute, and potentially leading to improved outcomes for parents and their children.
Government plans pilot for tailored legal advice aiding parents facing challenges in child arrangements, aiming to support effective resolution. The pilot, which the Government plans to launch in specific regions in England and Wales by summer 2024, will seek to demonstrate the benefits of high-quality legal advice for families looking to resolve their issues through the courts and, where court is deemed necessary, better prepare them for the court process.
Government pilot to evaluate impact of funded early legal advice, aiming to expedite dispute resolution and court-based solutions.
Lastly, the Government has announced that it will expand its ‘pathfinder’ courts pilot. Pathfinder courts in Dorset and North Wales pilot an investigative, child-centred approach, reducing adversarial procedures and enhancing support for parties.
The Government says that the pilot will be extended to South-East Wales and Birmingham in April and June 2024 respectively and then, subject to the findings of an evaluation and decisions at the next Spending Review, it intends to roll out the new approach to all courts in England and Wales.
For further information on how we can help, please see our Family Mediation page.
When parents separate they will obviously need to sort out arrangements for where their children will live and what time the children will spend with each parent. Hopefully, they will be able to sort out these arrangements by agreement, but if that is not possible then they may need to ask the court to sort out the arrangements for them. This is done by applying to the court for a child arrangements order.
The power of the court to make child arrangements orders is set out in the Children Act 1989. The Act defines a child arrangements order as “an order regulating arrangements relating to any of the following—
(a) with whom a child is to live, spend time or otherwise have contact, and
(b) when a child is to live, spend time or otherwise have contact with any person”.
So the order will essentially set out what time the child will spend with each parent.
The order will generally last until the child reaches the age of sixteen.
Note that there is no particular distinction between ‘living’, ‘spending time’ or ‘having contact’ with a parent. Thus the order can be anything from the child spending equal time with each parent, to the child living with one parent and just having occasional contact with the other parent, or even having no contact at all.
And contact can be visiting or staying, direct and/or indirect, unsupervised or supervised.
‘Staying contact’ refers to contact whereby the child stays with that parent overnight, whereas ‘visiting contact’ refers to contact during the daytime, with the child returning to the other parent at night time.
‘Direct contact’ is where the child actually sees that parent, whereas ‘indirect contact’ refers to contact via indirect means, such as letter, telephone, email, text message, and so on. Note that contact can be both direct and indirect, with the child having indirect contact in between direct contact visits.
Lastly, supervised contact is where there are concerns over the parent having direct contact with the child, so the contact visits are supervised by someone trustworthy, for example a relative, or a supervisor at a child contact centre.
So now that we know what a child arrangements order is, the next question is: how does the court decide what order to make?
The overriding principle is that the child’s welfare is be the court’s ‘paramount consideration’. In other words, the court’s decision will be what it considers is best for the welfare of the child.
The court presumes it’s best for the child’s welfare that both parents are involved, unless proven otherwise.
To determine the child’s welfare, the court considers a ‘welfare checklist,’ prioritizing factors crucial for their best interests. These factors include:
1. The ascertainable wishes and feelings of the child concerned, considered in the light of the child’s age and understanding. Thus, generally speaking, the older the child the greater weight the court will give to the child’s wishes. And there can come a point with an older child when their wishes will actually determine the outcome.
2. The child’s physical, emotional and educational needs. It may be that the child has some special needs, and that one of the parents is best suited to meet those needs.
3. The likely effect on the child of any change in their circumstances. Thus, for example, if the child is living with one parent and the court is considering making an order that they should move to live with the other parent then obviously that move court have a serious effect (good or bad) upon the child.
4. The child’s age, sex, background and any of their characteristics which the court considers relevant. These days the sex of the child is less likely to be relevant to the outcome of the case, but such things as their religious beliefs and particular interests could be.
5. Any harm which the child has suffered, or is at risk of suffering. Obviously, this would have a very significant bearing upon the outcome.
6. Lastly, how capable each of the parents is of meeting the child’s needs. This will cover not just parenting skills, but also practicalities such as work commitments, which obviously could have a bearing on the capability of the parent to meet the child’s needs.
For further information on how we can help, please see our Child Arrangements page.
So you have decided that you want a divorce. But how do you go about getting one? This guide should provide you with the basic information that you need to know.
Divorce essentially involves three steps: making the application, receiving the conditional order (where the court confirms your entitlement to the divorce), and getting the final order.
We will now go through each of these steps in a little more detail.
Completing an application and sending it to the court initiates the process. Please note that one cannot make the application until one year has elapsed from the date of the marriage.
One party can make the application, or both parties can make the application jointly.
The application contains, amongst other things, details of both parties, details of the marriage, and a statement by one or both parties that the marriage has broken down irretrievably. The court must accept that statement as proof that the marriage has broken down irretrievably, which is the ground for divorce.
The application must include your original or certified marriage certificate and the current court fee of £593.
The court will issue the application and check it. If there are no problems, they will send notice to the applicant(s) that it has been issued.
If one party made the application, the court will send a copy to the other party along with a form. The other party should complete the form, acknowledging receipt of the application and stating whether they agree with the divorce.
The other party cannot oppose the divorce because they do not believe that the marriage has irretrievably broken down. They can only oppose the divorce if they do not believe that the court has jurisdiction to deal with the divorce, if they can prove that the marriage was never valid, or if the marriage has already legally ended.
After issuance, the applicant(s) must wait twenty weeks from the application date before progressing the divorce. This is often referred to as the ‘period for reflection’, during which the applicant(s) can consider whether they do, indeed, wish to have their marriage dissolved.
If they wish to proceed, after 20 weeks, they can apply for the divorce to move forward.
The court will then check that the divorce can proceed and, if so, fix a date for the conditional divorce order to be made. By making the conditional order the court is stating that there is no reason why a divorce cannot take place.
After six weeks have elapsed from the conditional order the party or parties in whose favour the conditional order was made may give notice to the court that they wish the conditional order to be made final. (Please note that it is usually not advisable to finalise until financial arrangements have been sorted out.)
If the court receives the notice and finds no reason not to, it will finalise the conditional order.
If given over 12 months later, the notice must include an explanation stating why the application wasn’t made earlier.
Lastly, if one party has received a conditional order but hasn’t applied to finalize it, the other party can apply to make the conditional order final anytime after three months from the first available application date.
Please note that the above only covers the process of getting the divorce itself. It notably excludes sorting financial and child arrangements, which can be more complex.
For further information on how we can help, please see our Divorce & Separation page.
Whenever anyone thinks about financial planning through divorce, one of their first thoughts will be that it will be expensive.
But does that have to be true?
It’s inevitable that there will be costs associated with divorce, and that assets will usually be divided between the parties.
However, there are many steps that can be taken through financial planning to minimise the costs..
There are a number of practical steps that you can take that will help you get through the divorce.
Firstly, you should close all joint accounts, and separate your finances from those of your spouse, as far as possible. Obviously, if a joint account remains open then your spouse can drain it, including any money that you deposited into it.
Secondly, gather together details and paperwork in relation to all of your assets (including pensions) and liabilities. This will help you fully understand your financial position, and you will have to disclose these details.
Thirdly, make a budget. This will help get you through the divorce, and beyond. The budget will tell you your financial needs, which will be a vital piece of information when the financial settlement is decided.
Lastly, refrain from making any major financial commitments, until the divorce settlement is finalised. You may find that you will not be able to afford those commitments.
In most divorces the matrimonial home is the most valuable asset, and its value will usually be divided between the parties. Obviously, you will want to protect the asset, pending finalisation of the divorce settlement.
This is not a problem if the home is owned by you and your spouse jointly, as your spouse cannot deal with the property without your agreement.
But what if your spouse is the sole owner of the property?
You have a right to occupy the matrimonial home, even if your spouse is the sole owner. You can protect that right by registering a notice of home rights at the Land Registry. This will also effectively prevent your spouse from selling or re-mortgaging the property, as the buyer or lender would not proceed with the transaction until the notice is removed.
Various fees are likely to be incurred in the course of the divorce, from court fees to expert’s fees.
The amount of these fees can be quite substantial. There is currently a £593 court fee to issue the divorce application.
A simple way to save on these fees through financial planning is to share them with your spouse.
The divorce application can now be made jointly by both spouses, and they can agree to share the court fee.
Similarly expert fees can be shared, by the parties agreeing to instruct a joint expert, and to be bound by the expert’s valuation.
It is essential that you take expert legal advice. Obviously, the advice will cost money, but it may save you far more in the long run.
For example, good advice will help you to avoid unrealistic expectations, or arguing matters that will not be relevant to the outcome, such as the reasons for the marriage breakdown. If you have a good idea of what you may be entitled to, and avoid arguing over irrelevant matters, then you are likely to make smart financial planning decisions and to make a substantial saving on costs.
You may also need to take financial advice, for example in relation to pensions. Your lawyer will be able to put you in touch with a financial adviser.
Matters can be agreed with your spouse directly, through solicitors, or with the help of out of court solutions, such as family mediation and collaborative family law.
Note that before you can agree matters both parties will have to make full disclosure of their means, so that everyone knows what is at issue. It is therefore best to make this disclosure as quickly as possible.
If you can’t agree matters, consider arbitration, whereby the parties agree to have their case decided by a trained arbitrator, and to be bound by the arbitrator’s decision. This can be far cheaper than contested court proceedings.
There is of course no answer to this. The amount that the divorce costs will ultimately depend upon the issues involved, and upon the parties. As indicated above, if they are able to agree matters then the costs will be relatively little. On the other hand, if they argue about all matters then the costs will quickly skyrocket.
For further information on how we can help, please see our Divorce Finances page.
We wrote here back in September 2022 about the scourge of delay in court proceedings concerning children, with particular reference to private law proceedings between parents regarding arrangements for their children.
Sadly, the latest statistics show that the scourge of delay in child proceedings, (and in private law children proceedings and public law children proceedings) (i.e. proceedings involving the local authority)) has not gone away.
In fact, the problem in relation to private law proceedings has hardly improved at all.
In December the Ministry of Justice published its latest quarterly statistics for the Family Court, for the period July to September 2023. The statistics showed that in that period it took on average 45 weeks for private law cases to reach a final order, i.e. case closure.
In September 2022 we reported that such cases were taking an average of 46 weeks to reach a final order. That was the highest value since 2014, when the quarterly Family Court statistics were first published.
The Law Society, the representative body for solicitors, warned that the statistics “show a growing crisis in the family justice system”.
Law Society president Nick Emmerson said: “There were more than 80,000 children caught up in the family backlogs last year. We are seeing similar numbers this year. It is unacceptable that thousands of children are waiting almost a year to find out who they will be living with long-term because of delays in the family court system.
“Delayed justice can cause significant harm to the wellbeing of both children and parents by preventing them from having the stability they need to thrive. Research shows that children involved in private law proceedings are more likely to experience depression and anxiety.”
The latest Family Court statistics did not include data for the timeliness of public law cases.
However, such data was included in the annual report and accounts of the Children and Family Court Advisory and Support Service (‘Cafcass’, which looks after the interests of children involved in family proceedings), which were published in December.
The report covers the year to March 2023, and shows that in the final quarter of that year (January to March 2023) the average length of public law care and supervision proceedings was 46 weeks, which was 10 weeks longer than reported for the same period in 2020.
It should of course be noted that the Children and Families Act 2014 introduced a requirement that public law proceedings should be completed within 26 weeks, a target that is clearly not being met in very many cases.
Cafcass says that delays “continue to have a negative impact on children”, and that: “Delay for children as a result of longer case durations is now the single most pressing issue for the family justice system.”
Cafcass reports that it has prioritised reducing delay, although an Ofsted inspection of Cafcass in January 2023 concluded that delayed proceedings in most instances are outside of Cafcass’ control, citing a range of reasons, including a lack of court time, constrained court administrative capacity and local authority delays.
Sadly, there is little that families involved in public law proceedings can do to reduce delay in their cases. As Ofsted indicated, the answer primarily lies with providing greater resources for courts and local authorities.
But whilst similar considerations apply regarding court resources in private law proceedings, parents involved in such proceedings are able to take steps to reduce delays.
For one thing they can ensure that they comply with the timetable set by the court, in particular for filing evidence.
But they can also avoid court proceedings entirely, by seeking an out of court solution, for example via family mediation, collaborative family law or arbitration. Resolving matters out of court will not only be quicker for them, but will also of course reduce the pressure on the court system for others.
For further information on how we can help, please see our Expertise pages.
As is well known, the primary piece of legislation concerning the law relating to children is the Children Act 1989. But there has since been other legislation passed in relation to children law, including legislation that amends the Children Act itself. One such piece of legislation, and one of the most important since 1989, is the Children and Families Act 2014 (‘the 2014 Act’).
The 2014 Act is a lengthy statute, running to 140 sections and seven schedules. While we can’t cover all details here, the Act significantly impacted arrangements for children, addressing three crucial aspects.
It has long been recognised that family issues should best be resolved out of court, preferably by agreement.
Since the 1990s, mediation has been recognized as one of the most effective methods for couples to reach agreement.
The problem is that many couples are not aware of mediation, or that their case is suitable for mediation.
In about 2011 this was recognised by the introduction of Mediation Information and Assessment Meetings, or ‘MIAMs’ for short.
The MIAM informs the couple about mediation and assesses the suitability of their case for this process.
But initially attendance at a MIAM was not compulsory.
The 2014 Act changed that by stating that anyone wishing to make an application to the family court must first attend a MIAM, unless they are exempt from doing so, for example because they have been a victim of domestic abuse.
One of the more controversial reforms of the 2014 Act was an amendment to the Children Act.
The amendment introduced a requirement that, when considering an application to the court in relation to a child, the court must presume, unless the contrary is shown, that the involvement of both parents in the life of the child concerned will further the child’s welfare.
The reason that this was somewhat controversial is that it didn’t go as far as some people wanted. In some quarters, particularly those interested in fathers’ rights, it was argued that there should be a presumption that the child should spend equal time with each parent, unless there was a good reason why this should be so.
But the presumption of parental involvement didn’t say that. In reality, it is commonly believed that it had minimal impact on the courts’ decisions concerning children.
The last change in the 2014 Act that we want to mention is perhaps the most significant.
Again, this change amended the Children Act.
The Children Act introduced the terms ‘residence’ and ‘contact’, to replace the old terms ‘custody’ and ‘access’, which were considered to be outdated, particularly the word ‘custody’, which inappropriately implied physical ‘ownership’ of a child.
By 2014, the terms ‘residence’ and ‘contact’ were deemed outdated, with ‘residence’ implying a higher status for the parent with the order. It was thought that this perceived status made it more difficult for parents to resolve matters by agreement.
The Children and Families Act 2014 replaced ‘residence’ and ‘contact’ orders with the ‘child arrangements order’ in the Children Act.
A child arrangements order regulates with whom a child lives, spends time, and has contact, specifying when these arrangements occur.
Thus what was once called a ‘residence order’ is commonly referred to as a ‘lives with’ order. The term ‘contact’, still present in the definition of a child arrangements order, is commonly used for the non-residential parent.
It goes without saying that family law-related issues should be resolved by agreement if possible, rather than through the courts. But often the parties need help to reach agreement. This is where family mediation comes in. Family mediation is a voluntary process of assisted negotiation, where an independent, professionally trained, mediator helps couples resolve issues. Family mediation typically involves a number of meetings between the couple and the mediator. So what happens at a mediation meeting?
Before we answer that we should briefly mention another type of meeting related to mediation: the Mediation Information and Assessment Meeting, or MIAM for short.
Before making an application to the court all applicants must first attend a MIAM, unless they are exempt.
The MIAM is a first meeting with a mediator, to explain how mediation works, and to assess whether the case is suitable for mediation. If the case is assessed as being suitable then the couple can decide whether they want it to be referred to mediation.
Essentially, the MIAM aims to inform those considering court action about mediation’s existence and assess its suitability for their case.
Mediation meetings can involve the couple and the mediator meeting face to face in the same room. They can also take place as an online meeting. It is even possible for the couple to be in separate rooms, if that is preferred.
Exactly what happens at a mediation meeting will vary from one case to another, and will depend upon the type of issue that needs resolution – an issue relating to arrangements for children or an issue relating to finances and property on separation or divorce.
Generally, the mediator assists the couple in identifying agreed matters and resolving issues that require further discussion and resolution.
The meetings are entirely confidential.
Note that even if the mediator is a lawyer they will not provide legal advice, save to indicate in general whether a proposed solution is likely to be approved by the court.
The mediator will however indicate to the parties when they might need independent advice upon a particular matter. (Note that the parties can take legal advice at any time during the mediation process.)
In the course of the meetings the mediator will seek to ensure that both parties have an equal say, and that any proposed solution is fair to both parties and any children involved.
If the meetings lead to an agreement, the mediator documents it and provides each party with a copy. Note that the agreement is not legally binding, but can be incorporated into a binding court order, if appropriate.
And if the mediation is not entirely successful, the mediator will provide the couple with a written summary of the outstanding matters, and what action the couple should take next.
There are no hard and fast rules as to how long the mediation process will take. The duration depends on the specific case, including the issues and their complexity.
In general, however, the process might typically involve three to five meetings, each lasting between one and two hours.
The meetings will usually be spread over a number of weeks, although more complex cases may take several months.
Note that mediation concerning finances and property may take longer, as the couple will need to make full disclosure of their finances before the mediation can proceed, so that both parties and the mediator know exactly what is involved.
For more information about family mediation, and how we can help, visit our family mediation page.
