Why Mediation Matters Before Making a C100 Application

When parents separate and cannot agree arrangements for their children, it can be tempting to think that the next step is simply to apply to the Family Court.

In most cases, however, the court should not be the first step.

Before making a C100 application for a Child Arrangements Order, Prohibited Steps Order or Specific Issue Order, an applicant will normally be required to attend a Mediation Information and Assessment Meeting (MIAM) unless a recognised exemption applies.

At DADSS, we regularly speak to parents who want to make a C100 application because contact with their children has broken down or stopped altogether. Understanding the purpose of mediation — and the MIAM requirement — can save considerable time, expense and conflict.

What is a C100 application?

A C100 is the form generally used to ask the Family Court to make an order concerning arrangements for a child.

It can be used to apply for:

• a Child Arrangements Order, including where a child should live and when they should spend time with each parent;
• a Prohibited Steps Order, preventing a particular action concerning a child; or
• a Specific Issue Order, asking the court to decide a particular issue about a child's upbringing.

It can also be used in certain circumstances to vary or discharge an existing Section 8 order.

However, before starting proceedings, most applicants must first consider whether the dispute can be resolved without going to court.

Why is mediation required before a C100?

The requirement comes from the Children and Families Act 2014 and the Family Procedure Rules.

Unless an exemption applies, a person intending to make certain private-law children applications must attend a MIAM before making their application.

This is not simply an administrative hurdle.

The Family Court operates on the principle that, where it is safe and appropriate, parents should be encouraged to resolve disagreements concerning their children without contested court proceedings.

Family disputes are different from many other legal disputes. Even after a court case ends, the parents will usually remain connected through their children for many years.

A court can make an order, but it cannot necessarily create a successful co-parenting relationship.

Mediation may help parents find an arrangement they can both live with rather than having an arrangement imposed upon them.

What is a MIAM?

MIAM stands for Mediation Information and Assessment Meeting.

It is usually a short meeting between you and an authorised family mediator and can take place in person or remotely.

Importantly, attending a MIAM does not mean that you have agreed to mediation.

The mediator will explain mediation and other ways of resolving the dispute outside court and assess whether mediation or another form of non-court dispute resolution may be suitable.

The mediator will also consider issues such as domestic abuse, safeguarding concerns and whether mediation can take place safely.

If mediation is not appropriate, or it does not proceed, the mediator can provide the necessary confirmation to enable a C100 application to be made.

What if the other parent refuses mediation?

This is something we hear frequently at DADSS:

"I am willing to mediate, but my ex won't."

That does not necessarily prevent you from making a C100 application.

The obligation is primarily about the prospective applicant attending the MIAM and properly considering the available options.

The Family Procedure Rules specifically recognise that the prospective respondent may be unwilling to attend. The applicant should still attend their MIAM.

If the other parent refuses to participate, the mediator can deal with the appropriate documentation so that, where necessary, the applicant can proceed to court.

In other words, one parent cannot indefinitely prevent the other from making an application simply by refusing mediation.

Why mediation can be better than immediately going to court

Court proceedings can take months and sometimes considerably longer. They can also become expensive, stressful and increasingly adversarial.

Mediation provides an opportunity to resolve matters much earlier.

For example, parents may be able to agree:

• which days and nights the children spend with each parent;
• weekends and school-week arrangements;
• collection and drop-off arrangements;
• school holidays;
• birthdays and Christmas;
• telephone and video contact;
• arrangements with grandparents and extended family;
• foreign holidays and passports; and
• how future changes to arrangements will be discussed.

Parents can often create much more detailed and practical arrangements through discussion than would be appropriate for a court to manage.

Most importantly, mediation keeps decision-making with the parents.

If the matter reaches a judge, the parents are asking somebody who does not know their family to decide what arrangements are in the child's best interests.

Sometimes that is absolutely necessary. But where parents can reach a safe and workable agreement themselves, it will often provide a better foundation for the future.

Mediation is not about winning

One misconception about mediation is that it involves convincing the mediator that one parent is right and the other is wrong.

That is not the mediator's role.

A mediator is independent and does not decide the case.

Good family mediation concentrates on identifying the issues, reducing conflict and seeing whether practical arrangements can be agreed — particularly arrangements that meet the needs of the children.

Neither parent is required to accept a proposal simply because a mediator suggests discussing it.

When mediation may not be appropriate

There are important exceptions to the MIAM requirement.

The Family Procedure Rules provide a number of circumstances in which an applicant may claim a MIAM exemption. These can include certain situations involving:

• domestic abuse;
• child protection concerns;
• urgency;
• previous relevant non-court dispute resolution;
• particular circumstances where mediation cannot practically take place; and
• certain existing proceedings or orders concerning the child.

The precise exemptions and evidence requirements matter. An applicant should therefore not simply tick an exemption on the C100 because they would prefer not to mediate.

The court can examine whether an exemption has been validly claimed. If it concludes that the exemption was not valid, the court may direct attendance at a MIAM and may adjourn the proceedings.

Domestic abuse allegations and mediation

This is particularly relevant to many people who contact DADSS.

Where domestic abuse has been alleged, people sometimes assume that mediation is automatically prohibited. That is not necessarily the case.

There are specific domestic-abuse exemptions from the MIAM requirement where the relevant criteria and evidence are satisfied.

Equally, an allegation of domestic abuse does not automatically mean that mediation can never take place. Suitability is something that should be assessed carefully by an appropriately qualified mediator, taking account of safety, safeguarding and the circumstances of the particular family.

No person should feel pressured into mediation where it would be unsafe or inappropriate.

The court increasingly expects parents to consider alternatives

The Family Procedure Rules place considerable emphasis on non-court dispute resolution.

The court has a duty to consider throughout proceedings whether non-court dispute resolution may be appropriate.

This means that mediation should not necessarily be viewed as something that becomes irrelevant as soon as the C100 has been submitted. Even after proceedings begin, opportunities to reach agreement should continue to be considered where it is safe and appropriate to do so.

The objective is straightforward: court proceedings should be used where judicial intervention is genuinely required, rather than automatically becoming the first response to every disagreement between separated parents.

What happens if mediation succeeds?

If mediation results in an agreement, a C100 application may not be necessary at all.

Parents may be able to operate the agreed arrangements voluntarily.

That can save both parties considerable time, legal costs and emotional stress.

It may also help establish a more cooperative relationship in which future issues can be resolved through communication rather than repeated court applications.

There will, of course, be circumstances where a formal court order is still appropriate, and legal advice should be obtained where necessary.

What happens if mediation fails?

Mediation does not have to succeed for it to have been worthwhile.

Sometimes the parties simply cannot agree.

Sometimes one parent refuses to participate.

Sometimes mediation identifies that the dispute is unsuitable for resolution in that way.

In those circumstances, the appropriate MIAM documentation can enable the applicant to proceed with their C100 application.

The important point is that a genuine opportunity has been given to resolving the dispute without litigation before asking the Family Court to intervene.

Mediation and the welfare of the child

It is easy during a difficult separation for discussions about children to become discussions about the behaviour of the other parent.

The Family Court's focus is different.

Its central concern is the welfare of the child.

Mediation can help move the discussion away from:

"What does my ex deserve?"

and towards:

"What arrangement is best for our child?"

That distinction is extremely important.

Children generally benefit when the adults around them can reduce conflict and find safe, predictable and workable arrangements.

Before submitting your C100

If you are considering making a C100 application, do not overlook the MIAM section of the form.

Unless you have a valid exemption, you will normally need to attend a MIAM with an authorised family mediator before making your application.

Think of mediation not simply as something you have to do before getting to court, but as an opportunity to determine whether court can be avoided altogether.

If an agreement can be reached safely, that may be the quickest and least confrontational solution.

If agreement cannot be reached, you can then move forward with your C100 application knowing that the appropriate pre-court steps have been considered.

How DADSS can help

DADSS regularly speaks to parents who have lost contact with their children, are struggling with informal arrangements or believe that a C100 application may now be necessary.

We can provide information about the process, explain the role of mediation and MIAMs.

Mediation does not mean giving up your position. It means exploring whether a solution can be found without asking a court to make the decision for your family.

Where that is safe and possible, it can be better for the parents, better for the court system and, most importantly, better for the children.

This article provides general information about family law in England and Wales and is not a substitute for individual legal advice.