Julie Stather, an Accredited IFLA Arbitrator, has written a guide to children arbitration for solicitors in recognition of this growing area of dispute resolution, which can relieve pressure on the courts and offer a faster resolution for families.
- Arbitration is available for private law children cases either from the outset or part way through proceedings. The same substantive law applies as in the Family Court.
- It is suitable for disputes about which parent the child should live with, how much they should see the other parent, about choice of school, choice of religion, permanent moves within the UK and any other matter to do with exercising parental responsibility.
- Arbitrations cannot be held where the case has an international element (including holiday proposals) or involves decisions about life threatening illness and consequent medical treatment.
- Legal aid is not available, but the fees are fixed and represent a considerable saving compared to court proceedings.
- Please book the arbitration through chambers before you have completed the Institute of Family Law Arbitrators (IFLA) form.
- Arbitration is particularly attractive to parties when there is a long delay in listing a hearing date. The best example is the first arbitration which took place in Sussex in which a determination was given within 10 days of the arbitrator being appointed,
whereas the court could not list the matter for 3 months.
- Written decisions (determinations) will be given within a week of the hearing, although for very simple matters the decision will be given the next day.
- The parties will then apply to the court for an order in the same terms as the determination so that the terms are enforceable through the family court.
- Please have a look at the IFLA website here and refer clients there for more details.
- Arbitrators at 1COR offer fixed fees which represent a considerable saving against proceeding through the court system. All costs are usually shared equally between the parties.
- If it is a new case the parties and the arbitrator may require a planning meeting (directions hearing) if the parties cannot agree the evidence to be placed before the arbitrator. After that there is an arbitration (final hearing) and a written decision will be sent out within 7 days. Please ask the clerks for the fee for a full arbitration.
- We also offer packages for arbitration where the parties are already in court proceedings. If only a final hearing is required please ask the clerks for the final hearing arbitration fee. The decision will be sent out within 7 days.
- At 1COR we also offer decisions for simple matters such as summer holiday or Christmas contact for a much-reduced fee. Please ask the clerks for details. These can be dealt with by way of a short hearing or even by filing of written evidence only. A written decision would be given the next day.
The Benefits of Arbitration
- The main benefit for the children is speed – the matter can be determined in weeks rather than months. Stress and uncertainty for the children and the parties is minimised.
- The parties can choose their judge and have continuity
- The parties pick a time and venue for the hearing to suit them, including out of hours
- The case will be dealt with in a day, unless the parties need longer
- The case will be the only one in the list – no waiting around
- No adjournments unless exceptional circumstances
- The planning meeting, and even the main hearing, can be dealt with by phone or on paper
- You can deal directly with the arbitrator to resolve minor issues by email, whereas in the court process you would have to ask for a hearing
- Arbitration is like getting a fast direct train rather than getting a slow stopping train
The Arbitration Process
- The parties must obtain a basic check of their criminal records (see gov.uk for dbs check) and complete form ARB1CS and the attached safeguarding questionnaire.
- The parties choose an arbitrator and ask IFLA to approach that arbitrator.
- The arbitrator accepts the appointment and receives papers.
- There may be a planning meeting, possibly by phone or on paper, at which the arbitrator makes any directions.
- The final arbitration takes place and a determination is emailed to the parties.
- The parties apply to the court for a consent order reflecting the determination.
Procedure if the case is partway through proceedings
- If CAFCASS has already done the criminal record checks, you or the parties should send the results straight to the arbitrator so that they can accept the case. Otherwise the parties will need to do that themselves using the government website here. They should apply for a Basic Check. It takes 14 days and costs £25.
- The parties complete the form ARB1CS and safeguarding questionnaire, which they can obtain from the IFLA website under ‘Resources‘, where you will also find the Arbitration Rules. The parties should name their chosen arbitrator on the form.
- The parties email the form to IFLA at firstname.lastname@example.org. IFLA will then write to the chosen arbitrator to say that they have been appointed as an arbitrator.
- The parties can ask the court to stay the proceedings or list it as it would have done anyway, but allow the parties to apply to vacate that fixture if the arbitration takes place
- After the arbitration the parties or their legal representatives follow the procedure below for getting a court order.
Procedure if the parties come to arbitration from the outset
- The first thing is for the parties to obtain criminal record checks through the government website www.gov.uk. They should apply for a Basic Check. It takes 14 days and costs £25.
- Once those checks are received the procedure is the same as above.
Getting a court order
- The parties are expected to apply to the Family Court for an order in the same terms as the arbitrator’s decision.
- Both sides apply on Form C100 for a consent order. This costs £215 which is shared between the parties and the application is dealt with as box work.
- The C100 is sent with the ARB1CS and the arbitrator’s determination is sent in an attached envelope marked as ‘confidential – not to be opened without the permission of a judge of the Family Court’.
- If one of the parties does not agree to get a court order, according to the PD of 23.11.15 the case will be listed but not much time will be given to it, the court adopting “an appropriately robust approach”.
- Appeals are possible but extremely difficult. Please see s66-71 Arbitration Act 1996.