Arbitration: an option for Children Arrangements

Arbitration: an option for Children Arrangements

Arbitration for financial disputes has been available for some years and, although the number of people taking it up has not been high, it has been strongly supported by Judges. For those who have the available finances, it represents a quicker and more civilised way to obtain an independent and binding judgment than the Court system.

Benefits include Privacy and Control

The proponents of arbitration emphasise the privacy that it brings (particularly for clients in whom the media may be interested); the fact that if desired, the couple can select their arbitrator and the location of the arbitration hearing; and that on the day they can be guaranteed a prompt start without the Judge being occupied with other matters. The location (usually a solicitor’s office or barrister’s chambers) is generally an improvement on court waiting rooms.

Downsides include cost and the need for all parties to agree

The major factors that discourage arbitration are the cost and also that both parties have to agree to use arbitration, whereas any one person can initiate a court application and the other is (however reluctantly) drawn in. In terms of the cost, services of the arbitrator are chargeable to the parties, on top of their own legal fees. However, the cost of many cases that go to arbitration will be comparable to the costs lost in ineffective or reduced Court hearing slots (assuming that the case can proceed at all and that the Court has not over listed).

An additional issue is that (although the courts have been keen to uphold arbitrator’s awards) there is as yet no mechanism within the arbitration process itself to compel the production of information from a recalcitrant party. The arbitration process cannot be used, therefore, if there are concerns about a lack of financial or other information.

The arbitration scheme will cover some children’s matters

As a result of the relative success of arbitration for financial matters, the process has been extended to some (not all) children issues. The scheme covers:

  • the present or future welfare of the child concerned, including upbringing;
  • the present or future living arrangements (including internal relocation disputes);
  • all contact and educational issues; and
  • matters that could be the subject of an application to the court under s8 of the Children Act 1989.

The scheme cannot deal with:

  • child abduction;
  • disputes relating to the authorisation of life-changing or life-threatening medical treatment;
  • any case where a party lacks mental capacity;
  • any case where the child concerned is (or ought to be) a party to the court proceedings.

As in the court system, English law will be applied. For arbitrators exercising their discretion in determining any question relating to the upbringing of the child, the welfare of the child will be the paramount consideration and particular regard will be given to the welfare checklist in section 1(3) of the Children Act 1989, along with the no order principle (s1(5) Children Act 1989).

However, in addition to the cost of the arbitrator, there may well be another expense in connection with children matters. The Judges and magistrates benefit hugely from the services of CAFCASS, who will interview the children and provide the courts with reports and safeguarding checks.  In arbitration, the couple can jointly employ an independent social worker with appropriate expertise.  This appointment has to be agreed by the arbitrator.

An anticipated advantage of the scheme being extended to children matters is the varying timetables that can be applied. Sometimes there is an urgency to the matter, say in connection with deadlines for school admission places. However, in other cases, the children and the family need to take time to adjust to different stages in the process, particularly with very young children.  The arbitrator can be retained and the timetable can be agreed, and adjusted by the parties where necessary.

At Barr Ellison we want to make sure our clients have the opportunity to take the route to resolving their issues that best suits them and their family.  We offer a traditional Court route alongside the collaborative law approach that keeps both parties out of the Court.  The availability of arbitration for children matters is a positive development, giving clients another option which can be tailored to suit their particular requirements and hopefully bring their dispute to a prompt and satisfactory resolution.