Alternatives to court: children law arbitration
6 April 2021
Before the COVID-19 pandemic began, the family courts were already incredibly busy. It was typically taking around a year at least to resolve a private children case (a dispute between private individuals) from the date of the application to a final order being made.
Despite the hard work of the judiciary, court staff and the professionals involved in the court system, inevitably the pandemic has increased these waiting times, changed the way that hearings are conducted (by telephone or remotely rather than in person) and has impacted on the work that social workers and other experts can do with children.
These delays have obviously increased the levels of stress experienced by the parties. Most importantly these delays are not in the best interests of the children involved.
At Birketts our lawyers are able to advise clients about the range of alternatives to court that are available to determine family disputes. One of these is arbitration. The Birketts team is very used to acting for clients in arbitration both in relation to finances and children, and one of our partners is a Family Finance Arbitrator.
What is family arbitration?
It is a form of private dispute resolution in which the parties enter into an agreement under which they appoint a suitably qualified person (an ‘arbitrator’) to adjudicate a dispute and make a decision, which in private children cases is known as a determination. Arbitrators, who are members of the Institute of Family Law Arbitrators and are members of the Chartered Institute of Arbitrators, are all senior specialist family lawyers – retired judges; senior barristers; and very experienced family law solicitors.
Arbitration is like court proceedings in that the arbitrator will produce a decision after hearing the evidence and each party’s case. The decision is binding on the parties. The arbitrator applies the law in England and Wales. This is not the same as mediation when the mediator assists the parties to try and reach an agreement.
Whilst the jurisdiction of the court cannot be ousted in family cases, there are an increasing number of cases where the High Court has shown its support for arbitration decisions being incorporated into court orders. The courts accept that people can agree to go to an Arbitrator, and will support the outcome if they have made that decision, unless there are serious irregularities in the process, or the law is incorrect.
What are the benefits of family arbitration?
These are: the speed of the process, the ability to choose the arbitrator, who is a specialist, having more control of the procedure than if it were being determined in the courts, defining the issue/s to be arbitrated, confidentiality, having continuity of arbitrator, having continuity of representation, streamlining the process and reducing costs, and offering finality regarding a dispute. This all benefits the parties and the children involved.
When is children arbitration unsuitable?
When there are safeguarding issues, such as domestic violence. The parties must complete safeguarding questions on the form required to appoint the arbitrator, and must agree to the completion of safeguarding checks.
The parents could not agree on a choice of secondary school for their daughter, age 10, and in Year 5. The matter was time critical and well defined. If an application were made to court the proceedings would not have been resolved in time for the school admission deadlines. Birketts were advising the mother who had previously been involved in court proceedings and found them very stressful and did not want to go down this route again.
The parents agreed to arbitrate the issue via their solicitors, with an agreed arbitrator and independent social worker (ISW) who would provide an independent view to assist the arbitrator make the determination. They agreed that the arbitration hearing would take place remotely via Zoom (post-COVID this could be in person at a chosen venue) and would take one day. They agreed that following the report of the ISW they would prepare and exchange statements. The ISW met the parents individually and the child, as well as speaking to the child’s current school.
The arbitration took place and followed the same format as a court hearing. The parties’ representatives made opening submissions and the ISW and the parties gave evidence. The arbitrator also had an opportunity to ask questions. The parties’ representatives gave closing submissions. The arbitrator gave an indication on the day of her decision followed by reasons in her written determination a week later. The parties also asked the arbitrator to produce a ‘child friendly’ version of the determination to be communicated to the child by her deputy head teacher with whom she has a good relationship.
The case study above is based on a real life case that Birketts advised on. Rachel Frost-Smith (a solicitor-advocate) represented the mother and the client fed back “I left the arbitration feeling transformed. I felt that I had ‘won’ and the father also felt he had ‘won’. Not an easy outcome to achieve. I had a weight lifted off me and I could plan for the future.”
Regarding Rachel the client said “My experience with Rachel was that I was cared for. When I visited the office she made sure that there was earl grey tea for me and a biscuit. She has a caring tone but does not dole out sympathy, which was exactly what I needed.”
“Rachel and I were on the same page. I trusted her and loved that she summed everything up and I’d say ‘yes, that’s it, you’ve nailed it”.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at April 2021.