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Arbitration in children’s cases is here!

 

We’re pretty big fans of out-of-court dispute resolution at CFLP, as in our view the court is not always the best place to settle disputes that have arisen out of intimate relationships. Sometimes court proceedings are unavoidable; but wherever there is a possibility of keeping things away from a judge, we try to do that. We negotiate, mediate, collaborate on behalf of our clients when appropriate to do so. Also, now, we can arbitrate in children matters.

Simon Bethel is among the first qualified specialist Family Law Arbitrators for children cases in this country. The scheme was formally launched on Monday evening this week at a reception in the Inns of Court.

The child law scheme has come into being because of the great success of arbitration in financial divorce matters. The financial scheme started in 2012, and it’s fair to say it was a slow-burn, but in a case in 2014 our head judge handed down judgment where he affirmed and approved a financial award made by an arbitrator appointed under the scheme. In his judgment the President said, “There is no conceptual difference between the parties making an agreement and agreeing to give an arbitrator the power to make the decision for them.” This provided the reassurance about certainty of outcome that many practitioners were waiting for, and since then the practice of family law arbitration has grown exponentially.

It also led directly to the new Family Law Children Arbitration Scheme. The new scheme offers the opportunity to resolve disputes about the care, upbringing and welfare of children after parental separation and divorce by arbitration. It covers internal relocation cases (though not at the moment external relocation), child arrangement orders, change of name requests, disputes about education and prohibited steps orders.

Arbitration becomes an option when avenues for settlement of the dispute by agreement have been explored and have not led to a solution. The arbitrator has the power to impose a settlement on those in dispute, and he or she does so by their consent. Unlike a court, which can compel someone to attend and make someone subject to court orders whether or not they agree, arbitrators can only act if both sides of the dispute agree that they should.

If this is the case, though, the advantages of arbitration are many. There is no waiting around for court dates as you can choose your arbitrator on the basis of availability – or indeed on any other basis – and speed can be especially important when dealing with children matters. There is also more chance of arranging appointments with an arbitrator that are convenient for everyone involved, as opposed to fixed court hearings. The arbitration procedure is flexible and can be adapted to fit the particular circumstances of the case in terms of evidence heard, and the issues decided – from everything, to a single discrete matter. The costs of arbitration are almost always substantially lower than taking a case through the courts to a final hearing.

If a case goes to court, CAFCASS will usually be called upon to provide a report to the court about the children’s wishes and feelings. In arbitration, it is usual to request the assistance of an independent social worker to perform this role. It is fully intended that the children themselves are at the heart of arbitration in children matters, just as the court is led by a detailed consideration of their welfare before it makes a decision concerning them. Arbitrators apply the same law as the courts.

At the launch, the Chair of IFLA (the Institute of Family Law Arbitrators), Lord Falconer, said:

“The new children arbitration scheme will enable couples to resolve disputes concerning parental responsibility of children more quickly, cheaply and in a more flexible, less formal setting than a court room. It will also guarantee confidentiality where that is required or necessary. These are all important ingredients to minimising conflict and supporting the best interests of children.

“At a time when our courts are under significant pressures, the availability of arbitration for children matters builds on the long and proud tradition arbitration has in other areas, and gives parents and practitioners another tool with which to resolve family disputes”.

We are proud to be part of this new initiative. If you’d like to know more about arbitration in children’s law matters, please give Simon a call on 01223 443333. If there’s any other family law issue you’d like to talk about you can call Gail, Sue, Adam, Simon and Tricia on the same number and make an appointment.

 

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