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Children Arbitration Really Works - What you need to know

Following the determination of the first children arbitration hearing, Farooq Ahmed and Julie Stather, barristers of Hampton Family Arbitration and Westgate Chambers, explain the process and the benefits provided by this new resolution method.

Farooq Ahmed, barrister, Hampton Family Arbitration

Julie Stather, barrister, Westgate Chambers

 

 

 

 

 

 

 

 

 

 

 


Farooq Ahmed MCIArb and Julie Stather MCIArb, barristers, Hampton Family Arbitration and Westgate Chambers

The new Children Arbitration scheme was launched in July 2016 and is set to become one of the most exciting developments in children dispute resolution in a long time. The first children arbitration has already taken place and this article will give practitioners an idea of how best to prepare for an arbitration, what to expect when you get there, what steps need to be taken after the arbitration, and how the scheme might benefit those who choose it.

A brief outline of the scheme
The scheme covers all private law Children Act disputes between parents, including those with grandparents, with the exception of cases with an international element, life-threatening medical treatment cases, cases where a party lacks capacity under the Mental Health Act 2005, cases where a parent is under the age of 18 years, cases where the child in the case has or should have his or her own solicitor, the making of injunctions and applications to commit someone to prison. Much as we would like to see the children that we are making decisions about, the rules do not yet allow us to meet them. What we expect is that the bulk of cases coming to arbitration, at least initially, will be disputes between parents about child arrangements or the exercise of elements of parental responsibility.

Parties can refer a matter to arbitration themselves or through legal advisers. The form ARB1CS has to be completed and sent to the Institute of Family Law Arbitrators (IFLA). The arbitrator is then appointed. From that stage onwards the arbitrator communicates directly with the parties or legal representatives who have appointed him or her, and the first hearing will be set up. This will be a planning meeting (a directions hearing) although this can take place by telephone or just on paper. The arbitration then takes place and a written Determination (judgment) is given at the conclusion. The parties or their representatives then incorporate this into a consent order which is sent to the Family Court to be dealt by a judge with as box work in the usual way.

Key advice for the client
Because the scheme is so new, many judges may not be fully aware of what it can achieve, or may not have heard of it at all. Some may wonder whether it will work. We have found that it certainly works. The key factor which clients need to be aware of is that arbitration is intended to be binding. In S v S [2014] EWHC 7 (Fam) the President said that where parties have agreed to use the IFLA arbitration scheme, that fact is likely to be a single magnetic factor of determinative importance for the court in deciding whether to approve a consent order, giving effect to an arbitrator's decision.

The President has further stated in his Practice Guidance of 23 November 2015:

"Where the parties are putting the matter before the court by consent, ... it can only be in the rarest of cases that it will be appropriate for the judge to do other than approve the order."

Arbitration is not a 'dry run' which parties can ignore if they do not like the outcome. An appeal is possible only if it is on a point of law or if there has been a serious irregularity in the way that the arbitration was conducted. The relevant sections are s68 and s69 of the Arbitration Act 1996.

How to prepare for an arbitration
Parties can come to arbitration from the outset of their dispute or part way through court proceedings. In either case they will have to complete the form ARB1CS. The parties must, before the arbitrator can begin work, agree the arbitrator's terms and conditions and agree to the arbitration, which includes an agreement to be bound by its outcome. If the parties are coming straight into arbitration, they will need to get their police national computer record from the Disclosure and Barring Service (DBS). They also need to give details of anything that could pose a risk to anyone involved in the arbitration or to the children. The DBS check takes up to 14 days and costs £25.  It can be done online at www.disclosurescotland.co.uk, selecting Basic Disclosure. If the parties are in court proceedings and CAFCASS has carried out those safeguarding checks, this document should be sent to the arbitrator to evidence that. Either way, the checks need to be available to the arbitrator before the arbitration process begins.

The planning meeting
The first step taken by the arbitrator will be to make arrangements for the planning meeting. This may not be necessary if final evidence has already been directed within existing proceedings. It would be expected at this hearing to clarify and distill the issues, make directions for the filing of evidence, consider whether any expert reports are required, and decide the procedure, taking into account what the parties would like. The 'necessary' test for experts does not apply (s37 of the Arbitration Act 1996). An expert report can be commissioned if the parties agree it and/or the arbitrator is of the view that the report would be helpful. The removal of this hurdle, and the need to complete the lengthy Part 25 application form and supporting documentation is very attractive to practitioners and parties. The matter will normally, at this planning meeting, be set down for the arbitration (final hearing).

The arbitration hearing
Parties can also elect to arbitrate part way through their court proceedings. As the scheme becomes more widely known, it is expected that more and more clients will opt for this in order to avoid the lengthy delays that are now present in the court system. The first arbitration in the country, conducted by one of the authors of this article, came about for precisely this reason. The timeline of that case is set out below. In those circumstances, the court proceedings are either stayed, or adjourned to a date after the proposed arbitration date, the latter giving the applicant a fall back position if, for example, the respondent fails to attend at the arbitration.

Whether the parties have arbitrated from the outset or come into the system part way through their court proceedings, the arbitration hearing will be the same. It is a final hearing when evidence is heard and a decision is made. Whilst it is recommended that the parties attend an hour before the arbitration to allow for discussion and negotiation in the usual way, the case will start on time unless there is very good reason why the start is delayed. This is because the hearing is intended to be concluded within a day.

The bundle for the arbitrator should include the following, or as may be directed at the planning meeting:

  1. A case summary
  2. An agreed schedule of issues for the arbitrator to decide
  3. A brief chronology
  4. Any application documents filed in any court proceedings 
  5. Statements of the parties and any supporting evidence. Statements can take the usual   format, although they won't use the court heading
  6. Any expert reports including any CAFCASS reports (disclosure is permitted under FPR   2010 r12.75).

What to expect at an arbitration
The arbitration can be held at any suitable venue agreed by the parties. This could mean a conference room in chambers or in a solicitor's office (if both parties are happy that no one would feel prejudiced), or in a privately hired venue. Everyone sits at the same large table and at the same level. If at all possible, the parties should not have to face each other. When choosing a location, it is important to give some thought, if parties are represented, to where they and their legal advisers might be able to talk and possibly even negotiate. An arbitration is similar to a court hearing in that the parties take turns to address the judge and give evidence in the usual way. Although the parties are not sworn, the arbitrator may ask them and any witnesses if they are willing to promise to tell the truth when giving their evidence. A formal case opening is not likely to be required, although the arbitrator will of course want to be updated if further matters have been agreed since the filing of the statement of issues. Examination in chief and cross-examination take place in the usual way, although the entire feeling of the hearing is far less formal than that of a court.

What to do after the arbitration
Dependent on the issues to be decided and the urgency with which a decision is required, the arbitrator may immediately announce the decision, to be followed by the full written determination, or he or she may indicate that the written determination will be provided within a short timescale, aiming at 7 days. Once that determination has been received by the parties or their legal advisers, the document will be incorporated into a standard consent order. That should then be sent to the court along with form C100. The cost is £215. The determination should be placed into a sealed envelope marked 'Confidential – not to be opened without the permission of a judge of the Family Court'. It is then dealt with administratively by a judge of the Family Court as box work. Once there is an order, it can be enforced in the usual way in the Family Court.

An example of how quickly arbitration works
The first children arbitration to be heard concerned a dispute between parents about child arrangements, specific issues and general exercise of parental responsibility. The matter was referred to arbitration at the Dispute Resolution Appointment as the court could not offer a final hearing listing for almost three months, whereas the parties needed a decision in the next couple of weeks. These are the relevant dates:

17.3.16 Application to the court
7.4.16  Allocation directions made
10.5.16 FHDRA
12.8.16 DRH
19.8.16 Appointment of the arbitrator
26.8.16 Arbitration took place
29.8.16 Decision and Determination sent out to the parties
11.10.16 The final hearing date offered by the court.

Remarkably, it was just ten days from referral to a final decision.

The benefits
The benefits to the parties and to the children are numerous. They include:

  1. An early hearing date within weeks or even days
  2. The hearing is at a time and date of the parties' choosing
  3. The arbitrator is of their choosing, and is a specialist in children law
  4. Some arbitrators offer fixed fees with published rates
  5. There is virtually no risk of adjournment
  6. The parties will usually need to attend only one hearing
  7. The case may be able to be decided on documents alone
  8. The hearing can be at evenings and weekends.

The benefits to practitioners include:

  1. You can fix the arbitration at a venue to suit you by agreement with the arbitrator and the other party, so travel time is minimised
  2. You can fix the hearing dates at times to suit you, meaning that you will not lose cases because you are unavailable
  3. You will liaise directly with the arbitrator rather than having to try to speak with the court office
  4. You will have the same arbitrator throughout and will be able to communicate with him or her directly, both sides being copied in.

Conclusions
Children arbitration provides a rapid, cost effective and less stressful solution to resolving children disputes. The endorsement of the President and the ease with which determinations are made into orders are key elements of the scheme. Of course both parties need to agree to arbitrate, but with the increasing burden on the family court and the resultant delays, that agreement is ever more likely to be forthcoming.

13/9/16