Children Arbitration

Article 1 of the Family Law Arbitration Children Scheme Arbitration Rules 2016

(1^st Edition, effective, 18^th July 2016)

“The Family Law Arbitration Children Scheme (“the Children Scheme”) is a scheme under which disputes concerning the exercise of parental responsibility and other private law issues about the welfare of children may be resolved by the determination of an arbitrator.”

Lord Falconer:

The new children arbitration scheme will enable couples to resolve disputes concerning parental responsibility of children more quickly, cheaply and in a more flexible, less formal setting than a court room. It will also guarantee confidentiality where that is required or necessary. These are all important ingredients to minimising conflict and supporting the best interests of children. At a time when our courts are under significant pressures, the availability of arbitration for children matters builds on the long and proud tradition arbitration has in other areas, and gives parents and practitioners another tool with which to resolve family disputes.

Resolution:

Resolution is committed to helping separating families find the best approach to resolving issues. Since its launch, arbitration has provided couples with a speedy, flexible and cost-effective way to sort out their finances where they cannot reach agreement. I’m delighted that this new scheme has been established to extend these benefits to those families needing a decision on the arrangements for their children.

Introduction – The Key Points

• It is now possible to submit private law children disputes to an arbitrator for determination.
• The parties themselves decide the identity of the decision maker.
• The determination is enforceable.
• Hearings are held in private and at such location as the parties may agree.
• The timetable for the proceedings is decided by the parties. Decisions can be made in a very quick timescale indeed, days even, if that is what the parties want.
• Hearings are fixed according to the parties’ wishes and are not subject to double booking, lack of judicial time or any other of the vagaries of the court system.
• The determination required by the parties is agreed by them and may encompass all issues between them or just one isolated point that requires a decision before they can negotiate the rest.
• The nature of the hearing is also open for agreement and might for instance, in a suitable case, be dealt with on written submissions alone.
• Interim issues do not require formal applications and listing according to an overworked court timetable but may be almost immediate and by, for instance, conference call.
• The training and qualification of children arbitrators is governed by the Chartered Institute of Arbitrators and the Institute of Family Law Arbitrators (the “IFLA”).
• The procedure is governed by the Arbitration Act 1996 and the IFLA Family Law Arbitration Children Scheme Arbitration Rules 2016 (“the Rules” and “the Scheme”).
• The Scheme is enthusiastically endorsed by the President and the High Court bench, leading to improvements in procedure to ensure speedy enforcement.

The Legal Basis

1. All Children Arbitrations are governed by the following, in descending order of priority:

(i)      The Arbitration Act 1996 (“the Act”) – which contains both mandatory and non-mandatory provisions.

(ii)     The IFLA Family Law Arbitration Children Scheme Arbitration Rules 2016 (“the Scheme” and “the Rules”) – to the extent that they exclude, replace or modify the non-mandatory provisions of the Act.

(iii)    The agreement of the parties as set out in their Form ARBC1CS (by which they agree to refer the matter to arbitration) and otherwise – to the extent that such excludes, replaces or modifies the non-mandatory provisions of the Act or the Rules.

2. The applicable law is always that of England and Wales, although the arbitrator may have regard to the law of another country in the same way that a High Court Judge can.
3. The Act calls the decision an “award” but, the Children Scheme uses “determination” instead and refers to the parties as Applicant and Respondent.
4. The Act enshrines the basic principles of fair resolution of disputes by an impartial tribunal without delay and the parties’ freedom to agree how disputes are resolved and, makes mandatory, inter alia:

(i)      non-intervention by the courts, save where necessary, including stay of legal proceedings (S. 9);

(ii)     the parties’ duty to do all things necessary for the proper conduct of the proceedings, including complying with any determination of the tribunal on procedural or evidential matters or any other order or direction (S. 40);

(iii)    the power of the courts to enforce the arbitrator’s determination (S. 66) and,

(iv)    the limited means of challenging the determination (SS. 67- 71) namely:

(a)     lack of jurisdiction (S. 67);

(b)     serious irregularity, as defined in S. 68.

(c)               appeal on a question of law but, only with agreement of both parties or leave of the court which will only be given if the decision is obviously wrong or the question is one of general public importance and the decision is at least open to serious doubt, (S. 69).

5. The Rules set out first, the scope of the scheme (see the Extent & Limits section, below), then the application of the principle of paramountcy of the child’s welfare and the application of the section 1(3) Children Act welfare checklist, followed by the more detailed rules and procedure applicable specifically to arbitration in children cases, discussed in the next two sections.
6. The Form ARB1 CS is Annex 1 to the Rules and is the binding agreement to which the parties sign up in referring a matter to arbitration. 

The Extent of & Limits to the Children Scheme

7. By Article 2.1 of the Rules, the Children Scheme covers issues between parents (or other persons holding parental responsibility or with sufficient interest in the child’s welfare) which relate to the exercise of parental responsibility or the present or future welfare of the child concerned (including the child’s upbringing, present or future living arrangements, contact and education) and extends 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.
8. The only ‘private law’ issues currently excluded from the Scheme fall into four categories (Article 2.2):

(i)      Applications relating to the return to or, removal of, a child from the jurisdiction.

(ii)     Disputes over life-changing or life-threatening medical treatment.

(iii)    Any case where a party lacks mental capacity.

(iv)    Any case where a party or person with PR is a minor or where the child concerned is already a party in linked proceedings or should (in the opinion of the arbitrator) be separately represented.

9. The arbitrator’s powers to make orders or determinations in respect of substantive relief, both interim and final, are the same as those of a High Court Judge but, do not extend to interim injunctions; committal; or jurisdiction over third parties unless they consent (Article 7.2).
10. The arbitrator may appoint experts, including, for instance, an independent social worker but, may not meet with the child (Article 8).
11. The arbitrator has the power to make disclosure orders against any party (8.4).
12. If a party fails to comply with the general duty in S. 40 of the Act to do what is necessary for the proper conduct of the proceedings (including complying with directions) or is in default of S.41(4) (failure to attend a hearing or make submissions) the arbitrator may continue in the parties absence and make a determination (8.5).
13. A party can enforce a peremptory order made by the arbitrator through the courts (Article 8.6 & S. 42).
14. By Article 13.3 the determination is final and binding on the parties subject only to:

(i)      the limited rights of appeal and challenge set out in the Act;

(ii)     if the determination needs to be embodied in a court order then, any changes that the court may make;

(iii)    subsequent determination or order.

And, by Article 13.4, the parties are bound to apply for a court order in the terms of the determination, if and so far as the subject matter of the determination makes it necessary.

15. Costs: Whilst the starting point is that experts are paid for in equal shares and that there will be no order for costs, the arbitrator can at any stage order one party to pay his costs and those of the other party “where it is appropriate to do so because of the conduct of a party in relation to the arbitration (whether before or during it)”.

 The Procedure

16. To commence the process the parties simply refer the matter to their chosen arbitrator and submit Form ARB1 CS to the IFLA.
17. By the Form ARB1 CS the parties agree, inter alia:

(i)      to not commence court proceedings relating to the same subject matter and to stay any existing proceedings;

(ii)     to provide accurate safeguarding information including police checks (if ordered, enhanced checks) and, on an ongoing duty basis, full details of any matter relevant to the safety or welfare of the child;

(iii)    to be bound by the arbitrator’s decision as final, subject to:

(a)     the limited rights of appeal and challenge set out in the Act;

(b)              if the determination needs to be embodied in a court order then, any changes that the court may make;

(c)     subsequent determination or order.

(iv)    If the subject matter of the determination makes it necessary, to apply for a court order in the terms of the determination.

18. Pursuant to the Rules, once the terms of the arbitrator’s appointment are agreed, the letter of acceptance from the arbitrator signals the formal commencement of the arbitration proceedings – obviously, all correspondence to and from the arbitrator must be copied to all parties.
19. The parties may be represented by a lawyer or non-lawyer but, if the arbitrator forms the view that a non-lawyer is impeding the proceedings then the arbitrator may direct that that representation not continue.
20. Article 9 affirms that the parties are free to agree the form of procedure and in particular to adopt a documents only procedure or some other simplified or expedited procedure. If there is no such agreement then the arbitrator has the widest possible discretion to adopt suitable procedures.
21. Article 10 sets out a “general procedure” and Article 12 a more specific “alternative procedure”.
22. The general procedure in Article 10 is, in summary:

(i)      The arbitrator invites the parties to make submissions setting out their views as to the nature of the dispute, issues, outcome sought, suggested procedure, timetable and other relevant matters.

(ii)     The Arbitrator convenes a preliminary meeting, telephone conference or other suitable forum             or exchange of the parties’ positions.

(iii)    Within no more than 14 days the Arbitrator gives directions and sets a timetable for the procedural steps to include (but not limited to):

(a)     statements of facts;

(b)     disclosure;

(c)     exchange of witness statements;

(d)     expert witnesses, reports and meetings;

(e)     meetings or hearings and procedures thereat;

(f)     time limits on submissions and examination and control of length of hearings.

(iv)    The arbitrator may, at any time, direct any of the following in writing:

(a)     submissions;

(b)     questions to be put to any witness;

(c)     answers by witnesses to specific questions.

23. Article 11 deals with applications for directions providing for the arbitrator to impose time limits, the parties to exchange evidence or submissions and responses and the opportunity for the matter to be dealt with on paper, by telephone or other forum.
24. Article 12 sets out an “alternative procedure” which is more specific but open to variation:

(i)      Within 14 days of the arbitrator accepting appointment, each party to provide a sworn statement setting out their case, a brief outline of facts relied upon and outcome sought and such further evidence or information as the arbitrator may direct.

(ii)     14 days thereafter, each party may send a questionnaire raising questions or seeking information or documents.

(iii)    7 days thereafter, each party may raise reasoned objections to any questions and a submission as to whether a preliminary meeting is required.

(iv)    In the absence of an objection, answers to questionnaire are to be provided within 14 days.

(v)     In the event of objections, the arbitrator shall provide a decision in writing or convene a meeting in any form and may require written submissions.

(vi)    14 days after exchange of statements or within a reasonable time of answers to questionnaire, the arbitrator may convene a review meeting if appropriate.

(vii)   If considered appropriate the arbitrator may give directions, including but not limited to:

(a)     a schedule of issues or list of points of agreement and disagreement;

(b)     written submissions;

(c)     arrangements and procedure for any meeting or hearing;

(d)               time limits on submissions and examination and any other limits on the length of hearings.

25. Article 13 deals with the determination, which must be delivered within a reasonable time, in writing, with reasons and then continues with the provisions dealing with the binding nature of the determination, as set out in the Extent & Limits section above.
26. Article 14 deals with costs, as above.
27. Article 15 sets out the ways in which the agreement to arbitrate will be discharged (death or incapacity) and the circumstances in which the arbitration can be terminated: the arbitrator considering the matter no longer suitable for arbitration, a refusal by a court to stay proceedings, settlement, agreement to discontinue and final determination.
28. Article 16 deals with confidentiality and imposes confidentiality as the rule subject only to such disclosure as is necessary:

(i)      to implement, enforce or challenge a determination or [other] applications to the court;

(ii)     in the performance of the arbitrators duty under Article 17.3 to convey information about a child’s welfare to the appropriate authority;

(iii)    as otherwise compelled by law.

16.2.2 & 3 provide for limited and confined disclosure to experts or to obtain advice etc.

29. Article 17 sets out the duties on the parties, at commencement and throughout the arbitration, in respect of safeguarding and the arbitrator’s duty to:

(i)      consider whether the arbitration may safely continue if there are reasonable grounds to believe that there may be a risk to the safety of any party or to the welfare of any child, and

(ii)     to communicate any reasonable apprehension that a child or party has or is likely to suffer significant harm to the relevant authority – if appropriate without prior intimation to any party.

Enforcement

30. As yet the relevant authorities relate to the first Family Law Arbitration Scheme, i.e. financial remedy arbitrations but, the principles are the same and the enthusiasm of the President and the High Court bench generally for family arbitration is such that it is clear that all will be done that can be done to smooth the path for those who have dealt with their dispute in arbitration and only turned to the court for an order.
31. S -v- S [2014] EWHC 7 Fam is the President’s decision in which His Lordship readily approved the Order arising out of the arbitration and also took the opportunity to give some guidance about the court’s approach:
32. Having noted that the courts have already moved towards giving effect to nuptial agreements, endorsed alternative dispute resolution, adapted its processes to facilitate speedy approval of such agreements and sanctioned the abbreviated “notice to show cause” procedure where a party seeks to resile from such agreement, the President turned to arbitration under the IFLA Scheme:

(i)      In the absence of some very compelling countervailing factor(s), the arbitral award should be determinative of the order the court makes, (para. 19).

(ii)     An arbitral award is surely of its nature even stronger than a simple agreement between the parties, (ditto).

(iii)    It can only be in the rarest of cases that it will be appropriate for the Judge to do anything other than approve the order.  With a process as sophisticated as that embodied in the IFLA Scheme it is difficult to contemplate such a case, (para. 21).

33. The President then deliberately avoided discussing the facts of the case, saying that it was not appropriate for parties who have chosen the private process of arbitration to have their affairs discussed in a public judgment, (para. 22).
34. Further, the President set out a streamlined procedure available to parties, which is set out in full in the headnote to the report and discussed at paras. 23-24 but, is in summary: The application for approval of the Order can be dealt with in the “urgent without notice” applications list before the applications judge, with a day’s notice given by telephone to the clerk of the High Court Judge in front of whom it is proposed to list the case, the clerk of the rules being informed and the documents lodged the night before.
35. Matters are more complicated of course if one party seeks to resile from the arbitral determination but, even then the President’s solution is the “notice to show cause” procedure, in which the court will adopt a robust approach in accordance with the reasoning in such cases as Xydhias v Xydhias and “only in highly exceptional cases is the court likely to permit anything more than a very abbreviated hearing” (para. 25). See also J v B (Family Law Arbitration: Award) [2016] EWHC 324 (Fam).
36. Further, if the attempt to resile is plainly lacking in merit the court may proceed to summarily making an order reflecting the arbitral decision. Even if there is a need for more, the hearing will be short and focused on whether the party seeking to resile is able to make good one of the limited grounds of challenge or appeal permitted by the Arbitration Act 1996 (para. 26) and, if not, will likely proceed, without more, to make an order reflecting the arbitral decision and providing for its enforcement if that is necessary.

The Substantive Benefits of the Scheme

Confidentiality

37. Subject to essential and strictly confined provisions for disclosure to experts and advisers etc. or for safeguarding, the whole process and the determination are confidential. The media are not entitled to be admitted at any stage.

The Parties Choose Their Arbitrator

38. Thus they get to ensure not only that their decision maker is a specialist in child law, something by no means guaranteed in the court system, but also, that the arbitrator is someone who they believe is the competent and appropriate person to decide their case.

The Parties Decide the Issues to be Determined

39. They can chose exactly which issues they wish an arbitrator to be appointed for, having for instance, already reached agreement on other matters.

The Parties Decide the Procedure

40. They control both the timetable and the nature of the process.

The arbitration might be dealt with by way of fairly traditional interim and final inter-parties hearings or entirely on paper or over the telephone or by a combination of means.

Any interim applications, directions or problems arising can be dealt with almost instantly.

Hearings can be at any time and place agreed by the parties so as to accommodate, for instance, both work and child care.

They are not subject to the ever worsening problems in the court process of long waits for hearings and adjournments caused by inappropriate listing or lack of judicial time, etc.

Speed of Determination

41. It follows from all of the above that the parties can obtain a determination of a substantive issue within a much shorter timescale than through the court process.

Costs

42. Whilst the arbitrator’s fee is obviously a factor not involved in the court process, the combination of all of the above factors is likely to result in an overall saving in costs.