Why choose children arbitration?
On 25th September 2020, Bristol-based family court judge Stephen Wildblood QC lambasted parents for inundating family courts with private law applications that he believed could be successfully resolved via other dispute resolution pathways.
HHJ Wildblood’s furious judgement stemmed from a case involving the ‘unnecessary and disproportionate order’ for the disclosure of a mother’s medical records. To his frustration, this matter was one of many recent hearings that did not merit court involvement.
Underlining the ‘unprecedented amount of work’ currently facing family court judges, he urged couples to settle their differences ‘away from court except where that is not possible’ (read the judge’s comments in full here https://www.bailii.org/ew/cases/EWFC/OJ/2020/B44.html).
The family court system in England and Wales was struggling to cope before Covid-19 struck: the pandemic has exacerbated an already dire situation. With family courts facing huge backlogs, parents and their legal representatives need to consider other ways forward.
What is children arbitration?
For private law disputes involving children that cannot be resolved by mediation, children arbitration offers the benefits of an independent adjudicator and a cost-effective alternative to court.
A swift and versatile form of private dispute resolution, arbitration is completely confidential (making it particularly suitable for sensitive cases), and parties are guaranteed a decision at the end of the process. Unlike court proceedings, parties may select their own arbitrator from the Children Panel (a family law solicitor or barrister trained in children arbitration) who has the specialist knowledge to resolve their specific dispute.
Arbitration can be used to settle a wide range of private law disputes under the Children Scheme including:
- taking children abroad on holiday
- moving children abroad or to other parts of the U.K.
- living arrangements for children after separation
- time spent with parents
- school choices
- change of name
Arbitration cannot be used to settle matters of public law e.g. care proceedings or adoption.
The arbitrator has the power to make determinations to the same extent and in the same or similar form as would a judge exercising the jurisdiction of the High Court. The arbitrator may be asked to resolve the whole dispute, or one part of it. Meeting venues, dates and times are determined by the parties; arbitration sessions can take place face-to-face, by telephone or by video conference.
One of the major advantages of choosing the arbitration pathway is that the same adjudicator oversees the process from start to finish and is at the disposal of the parties. If there are any queries at any stage of the proceedings, the arbitrator can be contacted for advice.
How does children arbitration work?
Step One: Selecting the arbitrator
The parties, with the help of their lawyers (if applicable), choose an arbitrator from the Children Panel (see the IFLA website http://ifla.org.uk/ ‘search for an arbitrator’ function). It is a good idea to contact several different arbitrators to establish their fee structures and availability. If all parties agree, they may approach an arbitrator directly. Alternatively, the parties can compile a shortlist of arbitrators from the Children Panel (any one of whom would be acceptable to them) and then ask the IFLA to select one of the arbitrators on the shortlist. If the parties decide not to select their own arbitrator, the IFLA will nominate a member of the Children Panel for appointment in the matter.
Step Two: Preparation
The parties complete – but do not yet sign – Form ARB1CS (available from the IFLA website). The parties outline the key points of their matter and explain what they would like the arbitrator to do. The completed but unsigned form is then sent to the arbitrator. The form remains unsigned until all parties are ready to commit to the arbitration process. Once the form has been signed, there is no going back!
The Safeguarding Questionnaire attached to Form ARB1CS must be filled in by both parties and submitted alongside a Basic Disclosure (obtained from the Disclosure and Barring Service or from Disclosure Scotland) and/or an up to date CAFCASS report or Schedule 2 letter from a CAFCASS officer regarding the safeguarding and welfare of the child(ren). The arbitration process cannot start until the required safeguarding measures have been undertaken.
Step Three: Shaping the bespoke process
The arbitrator invites the parties to a pre-commitment meeting. This meeting is free of charge and can take place in person, on the telephone or by video conference. The parties discuss what they hope to achieve by undertaking arbitration and the arbitrator sets out a timescale for the process, determines fees and decides whether the matter should be dealt with on paper or by oral hearing.
If there is any dispute as to whether there should be an oral hearing, this issue can be adjudicated by the arbitrator during the arbitration process (the party making this request may be responsible for paying the additional cost).
Additional experts required for the proceedings e.g. an ISW (independent social worker) are discussed. Experts are appointed by joint instruction and maintain an impartial role throughout the process.
Step Four: Committing to arbitration
Once the parties are ready to commit to arbitration, Form ARB1CS is signed by both parties (or their legal representatives) and sent to the IFLA: firstname.lastname@example.org.
If one of the parties does not have legal representation (i.e. they are a litigant in person), they need to arrange a meeting with a family solicitor to ensure that they fully understand the commitment that they are undertaking. The solicitor subsequently issues a letter to the arbitrator confirming that the litigant in person is aware of the binding nature of arbitration.
Step Five: Disclosure
The arbitration process begins. Disclosure takes place in the same way as it would for a court hearing. Parties send to the arbitrator and to every other party all relevant letters or reports prepared by CAFCASS (or any local authority children’s services department or similar agency) in relation to the welfare or safeguarding of any child who is the subject of the proposed arbitration.
The arbitrator’s role is to oversee the process and to provide continuity. All communications between the arbitrator and the parties are copied to the other party. The arbitrator’s advice can be sought by the parties at any time, including assistance with disputed letters of joint instruction. An interim adjudication may be requested to resolve a specific point. In the instance that one party refuses to provide disclosure, an application can be made to court to settle the issue (incurring additional costs).
Step Six: Directions
Once disclosure is complete, a directions appointment is arranged. This meeting is usually held via remote platform or by telephone. After the meeting, the arbitrator will confirm the directions in writing and establish a timetable for the rest of the process. The directions are specific to the matter in hand and the parties involved. If the directions are not followed, an application can be made to court to enforce the direction (incurring additional costs).
If, at any stage prior to determination, the arbitrator considers that the dispute is no longer suitable for arbitration under the Children Scheme, the arbitrator has the power to terminate the proceedings.
Step Seven: Determination
- If the matter is being considered on paper, a draft of the Determination is issued to the solicitors of both parties to check for typing errors and factual inaccuracies. Please note that payment in full is required prior to the publication of the draft document. Once the draft has been approved, the arbitrator emails the determination to both parties at the same time.
- If an oral hearing is required, the parties decide upon a mutually convenient venue, date, and time. The hearing can be conducted in person or remotely. The parties can be represented by counsel or by solicitor. Normal court rules apply but the format of the hearing will be determined by the arbitrator. The hearing is recorded (audio only) and the Determination provided by an agreed date. The arbitrator’s costs must be met in full before the delivery of the Determination.
No further communication between the parties and the arbitrator is permitted once the Determination has been made. The Determination is final and binding for the parties. The parties’ solicitors then decide whether a Court Order is required. If a Court Order is not made and one of the parties fails to comply with the Determination, the other party may apply for an Order to enforce the Determination (this may incur additional costs).
How can LSL Family Law help with children arbitration?
Linda is a qualified children arbitrator and a member of the Chartered Institute of Arbitrators. If you would like to find out more about children arbitration and how we can assist with your individual case, please call us on 01273 041011.