The Child Arbitration scheme launched in July 2016 covers all private law Children Act Disputes between parents, parents and grandparents, cases where a party lacks capacity under the Mental Health Act, medical treatment cases of a life threatening nature, applications for injunctions, applications to commit someone to prison, cases involving parents who are minors and cases where a child needs separate legal representation.
Arbitration is a more informal process than that of a court. The parties decide when and where the hearing will take place. They also choose the arbitrator themselves.
The parties can choose arbitration from the start of the dispute or part way through court proceedings and a referral can be made at the dispute resolution appointment hearing. Arbitration is binding on the parties involved.
The parties or their legal advisers refer the matter to arbitration by completing form ARB1CS which is sent to the Institute of Family Arbitrators. An arbitrator is appointed and the first hearing known as a planning meeting is set up. Following the arbitration which usually lasts up to a day a written determination will be given the terms of which are incorporated into a consent order which is then sent to the court for approval by a judge in the usual way. It will only be in the rarest of cases appropriate for a judge to do anything other than approve the order. An appeal against the decision of the arbitrator is only possible on a matter of law or a serious irregularity in the way the arbitration has been conducted.
Arbitration is a more informal process than that of a court.
The process from start to finish will take less time than court proceedings and the lengthy delays with court listing are avoided.
The cost of arbitration is cheaper as arbitrators often charge fixed fees. Arbitration is less stressful as it is likely to be resolved in one hearing and can sometimes be dealt decided on documents alone.
With the proposed court closures and a court system which is overburdened arbitration can be a cost effective, less stressful and quicker way to resolve children disputes between the parties.
When going through a divorce, it is not only difficult for the parents but also the children. Here are some children’s books to help children understand the divorce process, their feelings and how to deal with their new situation.
For the younger audience
For older children
The following video from Resolution, may also be of assistance:
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.