The Children’s Arbitration scheme has now been extended to cover temporary and permanent relocation to countries which have ratified The Hague Convention and for as long as we remain bound by Brussels IIA, other EU countries. At a time when the Family Court is under extreme pressure, this extension to the scheme is very well timed.
Temporary removal is essentially a holiday with the children. Although we are in the midst of lockdown, a survey by a well known holiday cottage company based in the UK has found that 50% of those questioned have plans to take a holiday in the next 6 months. The chances of getting a court to hear within any reasonable timescale a contested application for a child to go on holiday are, in the current climate, minimal. That will be many times worse once the court starts sitting properly again as there is a large and increasing backlog of contested cases each several days long.
The position with regard to permanent relocation (such as moving house) is even worse. Before lockdown, the most recent published MOJ figures showed that private law cases were taking on average 26 weeks to complete. More worryingly, the report describes that as “an upward trend since the middle of 2016”. Many peoples’ lives have even turned upside down by COVID 19. Jobs and homes have been lost and some parents will find that they are having to contemplate moving away to another area to try to replace that which they have lost. With cases taking 6 months before the current pressures, there is no real understanding of how long it might take for the court to list a fully contested application given the inevitable backlog, not only of private law cases, but also of chronic public law cases. It can safely be taken as read that there will be a long queue.
The judiciary has long been supportive of the Children Arbitration scheme which has been the subject of an encouraging Practice Note and endorsements in several cases. Sir James Munby, the former President, was a staunch supporter and McFarlane P is giving the address at the official launch of the scheme this week. Mr Justice Moor (our Family Division Liaison Judge) in the case of CM v CM [2019] EWFC 16 pointed to specific issue arbitration, such as temporary and permanent relocation, as being “perfectly proper and appropriate even in cases that are proceeding through the court system”.
Notwithstanding the support of Presidents past and present, there is a duty on legal professionals to consider with our clients non-court dispute resolution. That duty also extends to the court under rule 3.3 of the FPR 2010: “The court must consider, at every stage in the proceedings, whether non-court resolution is appropriate”.
So what does the extension of the scheme actually cover?
Under para 2.2(c) of the Family Law Arbitration Children’s Scheme Rules 2020 (4th Edition):
“Article 2.2
The following disputes and issues are not within the scope of the Children Scheme:-….
(c) any application for permanent or temporary removal of a child from this jurisdiction except where the proposed relocation is to a jurisdiction or country which has ratified and acceded to the 1980 Hague Convention or The Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children (‘the 1996 Hague Convention’) and, for as long as the United Kingdom remains bound by the provisions of the Brussels IIA Regulation, the jurisdiction of another member of the EU to which the Regulation also applies”.
At Article 13.5 there are also provisions to ensure that any decision of the Arbitrator (known as the Determination) allowing the permanent relocation of a child abroad will comply with the requirements of the Brussels IIA Regulations.
The Arbitrator can deal with cases such as this on paper at the simplest end of the scale, but also has the power to appoint an independent social worker for cases which require that level of expertise.
These are very challenging times for parents, for the courts, and also for children. Arbitration provides a swift solution to enable families to make the most of their relationships when the lockdown eases rather than spending time and an unlimited amount of money litigating matters through the Family Court.
If you would like to consider arbitration for your case, please contact our clerks on 01273 625725 or Brighton@1cor.com.
Our team of arbitrators is available at short notice and on fixed fees. You can choose to present your case yourself or use one of our barristers to represent you, either in writing or at an arbitration appointment.
