Children Arbitration

Below is a guide to Family Private Children Arbitrations for clients wishing to instruct Darren Howe KC, Francesca Wiley KC, Timothy Bergin or Julie Stather. If you require further help or information, please contact one of the Practice Managers at 1 Crown Office Row, Brighton.

Arbitration is a type of private dispute resolution, in which the parties select an independent and impartial arbitrator to resolve their dispute. Crucially, they agree in advance that the arbitrator’s decision will be binding on them (subject to specified but limited rights of appeal or challenge and, in some cases, subject to the court’s supervisory role).

Arbitration has had a long and successful history in commercial and other civil cases. However, it is only since 2012 that it has been available for the resolution of financial and property disputes with a family background, under a scheme established by the Institute of Family Law Arbitrators (IFLA), a body formed by the Chartered Institute of Arbitrators, the Family Law Bar Association, Resolution (representing specialist family law barristers and solicitors respectively) and the Centre for Child and Family Law Reform.

A parallel IFLA scheme for the resolution of ‘private law’ children disputes was launched on 18 July 2016.

If you are involved in a family dispute and are considering arbitration under the Institute of Family Law Arbitrators (IFLA) financial and / or children schemes, first check that the dispute is covered by the relevant scheme (see Article 2 of the IFLA Financial Arbitration Rules .

The application form requesting appointment of a Children’s arbitrator is called  ARB1CS (for children disputes). This may be completed and printed out in a word-programmable format.

Most people experiencing relationship breakdown wish their dispute to be dealt with as swiftly, cheaply, privately, and with as little acrimony, as possible. For those who wish their dispute to be resolved by an independent third party, yet seek to have as much ‘ownership’ of the process as possible, opting for family arbitration can have a number of distinct advantages compared with going to court:

• Choice of arbitrator: a key feature of arbitration is that the parties themselves, guided by their lawyers if they have them, are able to select the person whom they wish to arbitrate their dispute. By contrast, in the court process judges are allocated to cases and it is not possible for the parties to request a particular judge. Also, while in the court system a number of different judges are likely to be involved at different stages of a case, in an arbitration the appointed arbitrator alone will deal with the dispute from start to finish.
• Another factor is that increasing pressures on the court system have had the result that judges often do not have time to prepare for hearings in advance, and that parties come to court not knowing whether their case will start or finish on time, or will be reached at all. In an arbitration, however, the arbitrator’s continuous involvement means that he or she will set aside time to read the papers and to prepare thoroughly for hearings, and will be available to deal promptly with applications for directions and other issues that may arise in the course of the arbitration.
• The arbitrator or his or her Practice Manager will then contact the parties seeking their agreement to the terms of the appointment. Please note that all correspondence between the arbitrator and one party must be copied to the other party. Correspondence by email is always encouraged.
• Many arbitrators will offer a free of charge ‘no commitment’ meeting before the terms are signed. This meeting gives you the opportunity to meet the arbitrator, and enables the arbitrator to be satisfied that you understand the process and your own obligations under the arbitration agreement.
• Once you and the arbitrator agree terms, the arbitration formally commences. The Children Arbitration Rules and the Arbitration Act 1996 apply to the conduct of the arbitration.
• In the ARB1CS you both agree to be bound by the arbitrator’s decision.
• You also agree that you will not, while the arbitration is continuing, apply to court except in connection with the arbitration or to seek relief that is not available in the arbitration.
• A key feature of arbitration is that the parties ‘own’ the process as much as possible. In some cases, especially those where the issues are narrow, the parties will have no difficulty in agreeing on a form of procedure prior to the arbitrator’s appointment. They can, for instance, decide whether they want the dispute to be determined on paper only, or following a hearing, and in the latter case whether with or without oral evidence. However, in many cases, particularly where the parties and /or their advisers are unfamiliar with the arbitration process, they may prefer to leave procedural issues to be decided by the arbitrator, in the light of their representations.

• The procedure that is best for your arbitration will depend very much on the nature of your dispute. These may be adapted to suit the circumstances of your case, or an entirely bespoke procedure may be adopted. The arbitrator has the widest possible discretion to adopt procedures to suit the circumstances of your case. Their focus will be to manage the arbitration as quickly, efficiently and in the most cost-effective way as possible.
• Unless you have decided in advance which procedure will apply, the arbitrator will conduct a case management conference at the start of the arbitration, either by phone or in person, when procedural issues can be discussed and he or she will make a decision.
• It is open to the arbitrator to decline to accept the appointment if he or she considers that the arbitration is unlikely to be effective using the procedure that the parties have chosen.
• During the course of the arbitration, any further decisions about procedure will be taken by the arbitrator after due consultation with the parties. If appropriate, this may be done by means of a conference call or by email.
• If there is to be a final hearing it will take place at a date, time and venue agreed between you and the arbitrator.
• The arbitrator’s award must be committed to writing and delivered promptly. The decision will include written reasons, like a court judgment, and will deal with costs. The arbitrator’s fee must be settled upon delivery of the award.
• There may be an avenue of appeal to court on a point of law, unless the parties have agreed to exclude this right. The parties can also invite the court to set aside the decision if there has been a serious irregularity which has resulted or may result in substantial injustice.

In certain circumstances the arbitrator may terminate the arbitration before it has been concluded. How the arbitrator’s decision is implemented will vary, depending on the nature of the dispute.

In a children dispute, the parties’ arbitration agreement binds them, in advance, to apply if necessary for a consent court order to reflect the arbitrator’s determination.

The scope of the family arbitration schemes is wide.

The children arbitration scheme encompasses issues relating to the exercise of parental responsibility or the present or future welfare of children, including upbringing, present or future living arrangements, contact and education. The scheme applies but is not limited to matters which could be the subject of an application to the Family Court under section 8 of the Children Act 1989.

This is intended as a guide only and is general in nature. It is no substitute for professional advice. 1 Crown Office Row accepts no responsibility for the consequences of any action taken or refrained from as a result of this overview.