In this article James Pirrie, director of Family Law in Partnership, examines the Children Arbitration Scheme which was launched in July 2016.
Non-court alternatives have proliferated for financial cases (private FDRs, ENE, collaborative, mediation and in February 2012, arbitration). On July 19th 2016, family lawyers found the options for their clients increase radically with the launch of the Institute of Family Law Arbitrators children scheme, backed by the President, the FLBA, Resolution and a range of other organisations.
Since financial arbitration training was first offered over 200 financial arbitrators have been trained (profiles available at www.ifla.org.uk/search/ ) and over 100 financial arbitrations have been undertaken. There has been strong judicial support for arbitration in the family law context including statements made by the President of the Family Division, Sir James Munby, in the matter S v S (Financial Remedies: Arbitral Award)  EWHC 7 (Fam), 1 FLR 1257, a case in which director James Pirrie, director of Family Law in Partnership, represented one of the parties. Standard arbitration orders have been developed which have the approval of the President who in November 2015 also issued guidance to further promote harmony between the judicial and arbitral systems.
What does the new Children Arbitration Scheme cover?
The Children Arbitration Scheme will deal with a range of private law children issues, including:
- Internal relocation within England & Wales (but not yet external relocation)
- Child arrangement orders
- Holiday arrangements – though not currently applications for the temporary removal of a child from the jurisdiction
- Change of name
- Education disputes
- Prohibited steps orders
Over 40 arbitrators have already been trained under the Children Arbitration Scheme and more are expected to follow as the Scheme gets properly underway.
The advantages of the Children Arbitration Scheme:
The new Scheme provides a flexible alternative to court proceedings and, to a large extent, hands control of the proceedings to the parties. It has many advantages including:
- Speed, convenience and cost – the timetable for, and location of, the arbitration can be fixed more quickly than a court application and at a time convenient to all parties. At a time when the family law courts are under increasing pressure, this is a welcome step for the courts and parties alike. While the family arbitrator will charge a fee for the process our experience in financial arbitrations is that cost savings are between one half and two thirds, and cases that might have taken a year or more in the courts are concluded in as little as two or three months.
- Choice of arbitrator – rather than having a judge imposed on them as is the case in court proceedings who may not have had a practice involving the relevant specialism, the parties are able to select who they would like to hear their dispute and can choose the arbitrator with the expertise best suited to the matter in dispute. The arbitrator will deal with the dispute from start to finish in contrast to court proceedings where it is not uncommon to have a different judge for each hearing.
- Confidentiality – Arbitrations are dealt with in private away from the glare of publicity which can be of particular advantage to clients in the public eye. Complete confidentiality is assured.
- Flexibility over content and timing – the arbitrator can be instructed to consider discrete issues only as well as full cases. Arbitration can be adopted at the outset of the proceedings or at any later stage.
- Informality – in certain cases, and if there is agreement between the parties and the arbitrator, the arbitration can be dealt with on paper or by telephone, without the need for personal attendance at a formal hearing. Even if this is not possible, the whole procedure is likely to be much less formal than the court process.
- Integration – work has already started on a range of creative and efficient offerings, for example to build on the progress in mediation and to parachute in the arbitrator to resolve “stuck” issues where this is the best option for the mediation.
As with a court application involving children, the welfare of the children is paramount in the decision making process and the arbitrator will need to address any safeguarding issues. The instruction of an independent social worker to ascertain the wishes and feelings of the children will be a key part of the new Children Arbitration Scheme, when appropriate. But the arbitrator will not meet or interview the children.
The process of family arbitration guarantees that parties that they will leave the process with a decision. For those parties who doubt their former partner’s ability to reach a sensible agreement it can be reassuring to know that they will exit the arbitration process with a clear outcome. The determination of the arbitrator is binding on the parties (save in the case of legal errors or serious irregularity) and can, if necessary, be converted to a court order in the same way as a financial remedy award.
This is an exciting time for arbitration with the financial and children schemes now both up and running. We expect that arbitration will grow even more in popularity providing a flexible and cost effective alternative to the overstretched court process.
This article was first published by Solicitors Journal on 7 June 2016, and is reproduced by kind permission.
If you would like to understand more about the arbitration children scheme, please contact our children law arbitrators Gillian Bishop, James Pirrie or Felicity Shedden on 020 7420 5000 or by email at email@example.com. If the matter in dispute involves property or financial matters, we also offer three arbitrators qualified in this area too – James Pirrie, Felicity Shedden and Bradley Williams.