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The first children issues arbitration

The arbitration scheme for children’s cases was launched this summer and is an interesting new development in family justice, increasing access to quick decisions within the framework of the law, but outside the constraints of the court system. We wrote about it here. This week has seen news of the first concluded arbitration relating to children’s arrangements, so we thought we’d have a look at what happened.

Arbitration is private, so we don’t know a huge amount about the case. What we do know is that the dispute in question was a difference of opinion between parents about child arrangements, certain specific issues and the general exercise of parental responsibility. The reason the parents chose arbitration rather than a final court hearing in this case was because they needed an urgent decision, and unfortunately pressure on the court system meant that the court could not offer them a date for a final hearing for three months. Using arbitration meant they could – and did – get a final decision within a couple of weeks. In fact, the time between the appointment of the arbitrator and the parents receiving the decision was just ten days.

In this case, the parents had started the court system rolling five months before, and had gone through two hearings at court: the First Hearing Dispute Resolution Appointment (‘FHDRA’) and the Dispute Resolution Hearing three months later. Unfortunately these hearings, and the surrounding negotiations, hadn’t managed to resolve their issues, and they referred to arbitration before the final hearing took place.

Even though these parents took the court path in the first instance, it’s not necessary to go through the court at all before considering arbitration as a way of sorting things out. The beauty of arbitration is that you can get a decision quickly if one is needed, without needing to go through all the preliminary hearings required by the court process, as long as the welfare of the child or children concerned is not compromised by that.

There is always a planning meeting at the outset of the arbitration, so that the arbitrator can make all the relevant arrangements for the hearing, including what the process will be. Unlike a court directions hearing, this planning meeting might be by phone or Skype, making it more convenient for everyone. The arbitrator may feel he or she needs expert evidence to do justice to the case. This might, for example, be more information about, or from, the child, in which case an Independent Social Worker would be appointed to report.  There is a big difference here with the court process, which will only order an expert if it is absolutely necessary – in an arbitration, the parties and/or the arbitrator can direct any helpful evidence to be filed.

An arbitration can be like a court hearing in its agenda, but is usually much less formal in process – for example, it could be held at the work premises of the arbitrator, or the offices of either party’s solicitor, and usually everyone involved will sit around a table. Like at court, there can be time for negotiation during the process. Just like court, just because the arbitration process starts it doesn’t mean it needs to end with an arbitrator’s decision if the parties manage to agree a way forward themselves.

At the outset of the arbitration, when the arbitrator is appointed, both of the parties have to agree to be bound by the arbitrator’s decision. The family courts and judicial guidance have confirmed that this agreement is fully binding, and it is clear under The Arbitration Act 1996 that the court should only interfere with t an arbitrated award if there are serious concerns about the arbitrator’s decision, either because of a misinterpretation of the law or a major error of process. Otherwise, the award will be turned into an Order of the court which can be used and enforced like any other.

We’re in favour of expanding the ambit of family justice and giving families who can’t agree about children’s arrangements new options for working things out. Arbitration offers the opportunity to get a private, binding decision on your particular circumstances made by an expert in children’s law quickly. This is good news for parents and children alike, who might otherwise be caught in limbo for months waiting for a final hearing date from the court that may even fall after the deadline for the specific issues to be resolved. The one fly in the ointment is that arbitration is only for those who can afford it – it is private justice. Although you don’t need a lawyer to use arbitration, the arbitrator’s fees are likely to be more than the fees charged by the court (for which exemptions may be available if you are on a very low income), but this does not mean it is necessarily expensive, particularly in comparison with a fully-contested final hearing at court involving solicitors on both sides.

CFLP partner Simon Bethel was among the first lawyers to be trained to conduct arbitrations in children cases. If you’d like to investigate using arbitration to resolve a dispute, you can give him a call on 01223 443333. Alternatively, if you have any other questions about a family law or children matter, you can call any of the partners – Gail, Sue, Simon, Adam or Tricia – to make an appointment.

 

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