A v A [2021] – The Final Piece of the Puzzle for Family Arbitration

FLiP has been a strong supporter of family arbitration as a means of resolving disputes away from the courts since family arbitration was introduced into England & Wales in February 2012. In fact, it was at FLiP that one of the first family arbitrations under the new scheme took place and, as a firm, we offer three qualified family arbitrators.

The uptake and breadth of appeal of family arbitration has turned a real corner in the past 16 or so months. The decision of A v A (Arbitration: Guidance) [2021] EWHC 1889 (Fam), published in July 2021, has clarified how family arbitration works within the family court system; it should give those considering using family arbitration full confidence in the process as a cogent alternative to litigation.

This increased engagement in family arbitration can be put down to a host of reasons. A few are as follows:

• Lockdowns resulting from the Covid-19 pandemic, with the necessary move to largely remote court hearings, has placed immense pressure on our already creaking court system and public resources are stretched now more than ever. Family arbitration (alongside other forms of alternative dispute resolution) has been able to simultaneously alleviate the caseload of the courts and allow parties to bring ongoing conflict to a conclusion sooner; arguably family arbitration generates better outcomes for individuals, by avoiding the financial and emotional toll of protracted court proceedings and enables them to move on with their lives.

• The support for family arbitration by judges themselves has become more vocal, particularly against the background of the difficulties caused by the Covid-19 pandemic referred to above. Family arbitration was endorsed for private proceedings in The Road Ahead and Remote Access Family Court reports (both published in June 2020). The message reiterated by the President of the Family Division in his July 2021 address was that there is going to have to be “a very radical reduction in the amount of time that the court affords to each hearing”; family arbitration represents a clear solution to reduce the burden on courts.

• For family arbitration sceptics, the decision of Haley v Haley [2020] was as big an endorsement of the process by the courts as there has ever been. While ensuring that the certainty of outcome of arbitration is preserved, Haley redressed the need for fairness in the arbitration process by bringing the test for appealing an arbitral award in line with that of appealing an order made by the courts; this means that a party to an arbitration wishing to challenge an award must demonstrate that the order was ‘wrong’ (rather than it being ‘seriously or obviously wrong’, which was previously the test for turning over an arbitrator’s decision).  While the decision related to a financial arbitration, the same approach ought to be applied in arbitrations covering children matters too.

The importance of alternative dispute resolution is not only recognised in the Family law arena but, tellingly, it is gaining significant traction in the Civil law arena too.  The Civil Justice Council concluded in a report published in July 2021 (a couple of days after the decision in A v A [2021]) that mandatory alternative dispute resolution is both lawful and should be encouraged.  Where the civil jurisdiction leads, family law tends to follow, but for now family arbitration has to be an agreed way forward. The work of the Family Solutions Group and the Surrey Initiative strives towards practitioners and litigants being much more prepared to engage in non-court dispute resolution. In a similar vein, the case of WL v HL [2021] earlier this year saw the court use its case management powers to support parties by adjourning proceedings as a means of actively encouraging them to engage in non-court dispute resolution options.

Even with the very important decision of Haley, a degree of confusion amongst practitioners has remained as to the process of appealing (or indeed implementing) an award made by an arbitrator.  Fortunately, this has been comprehensively addressed in the decision of A v A [2021] (which has been approved by the President of the Family Division) in the hopes of drawing a line under the “procedural chaos” that had existed up to that point.

The appendix to the A v A judgment sets out in detail the procedure to be followed and should be the first port of call for practitioners looking to implement or appeal an arbitral award. This includes which form and applications are to be filed, by when – which is time limited where awards are being challenged, but not in the case of implementation – and even the form of words needed for the application and draft order. The judgment also confirmed emphatically that applications should not be made under the Arbitration Act 1996 but instead should be made to the High Court in the Family division.

This much needed injection of further clarity from Mostyn J in A v A [2021] is the final piece of the puzzle and should give practitioners full confidence in pursuing family arbitration – knowing that if they were to have to seek to implement an award made or to challenge it, there is a clear route for doing so.  The trend certainly seems to be that family arbitration is considered by more people than ever as a mainstream option for out-of-court dispute resolution.

For more on Family Arbitration and FLiP’s approach to it, take a look at our dedicated Arbitration page. You might also find the following resources helpful:

A podcast on Children Arbitration: All You Need To Know, found here.

Q&A – Family Arbitration blog, found here.