Monthly Archive:July 2016

Arbitration for children cases is here!

Members of Cambridge Family Dispute Resolution Group acknowledge that 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. However, we can now also “arbitrate” in children matters after a 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. If you wish to explore the option of Arbitration further then please do contact our members and they will be able to answer your questions, alternatively please contact any one of our arbitrators and they will be able to provide you with information with respect to the scheme.

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

If you wish to explore the option of Arbitration further then please do contact our members and they will be able to answer your questions, alternatively please contact any one of our arbitrators and they will be able to provide you with information with respect to the scheme.