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Children Arbitration: A Speedy Solution for Contact Disputes during Covid-19 and beyond (including 3-step printable guide)

Hassan Khan, MCIArb, Barrister and Children’s Arbitrator at 4PB, explains how arbitration may offer a prompt and appropriate remedy for children disputes between parents.

 

Hassan Khan, MCIArb, Barrister and Children's Arbitrator at 4PB



Speedy access and prompt decisions in private law children disputes are among the worst hit casualties during the Covid-19 pandemic. I have received numerous calls from concerned solicitors relating to clients relying on Covid-19 as a basis for denying time spent with a parent, with the result that nothing can supposedly be done until a court eventually hears the dispute. Of course, the Family Division and Cafcass have issued their own guidance in relation to what is expected in these cases. But what about the significant number of parents who remain in deadlock and cannot wait until a court can hear their case?

Children Arbitration offers a speedy and prompt solution. A specialist and experienced children barrister acts as your private judge, and whether as a swift paper exercise, or after listening to both sides (remotely), can provide a written determination quickly. All this is likely to shave months off any court-ordered decision, especially now. Arbitration is also something to consider for most private law cases, given the increasing burden on public resources.

With Arbitration, clients can be assured that the determination made by an Arbitrator is legally binding in the same way as a court-ordered decision and any resulting court order can be enforced through the courts. The previous President, Sir James Munby, expressly endorsed the Family Law Arbitration Scheme and produced practice guidance in 2018. The current President, Sir Andrew MacFarlane, at the Resolution Conference in 2019 stated that

"there has got to be a better way." than "using the Family Court to resolve straightforward, non-abusive, relationship difficulties between parents who separate is unlikely to be an effective course to follow, costs a great deal of money and is not seen, by many of its users, to be working effectively."

This is where Arbitration comes into play.


CHILDREN ARBITRATION PRACTICE GUIDE

Stage 1 - Suitability
First, check if the nature of your dispute is covered and suitable for Arbitration.

The scheme covers:

• Issues between parents (or those with parental responsibility or a sufficient interest in the welfare of the child) which relates to the exercise of parental responsibility or the present or future welfare of the child.
  
• This includes: where and with whom the child shall live, contact, arrangements concerning the child's upbringing e.g. division and allocation of holidays, religious upbringing, schooling, medical treatment for non-life threatening or non-life changing conditions.
  
• Children Act 1989, s.8 orders.
  
• Relocation where country signatory to 1980 and 1996 Hague Convention and Brussels IIA.

The scheme does not cover:

• Child abduction cases.
  
• Relocation cases where country not signatory to 1980 and 1996 Hague Convention or Brussels IIA.
  
• Article 11(7) and 41 of Brussels IIA.
  
• Medical treatment for life threatening or life changing conditions.
  
• Mental Capacity Act cases.
  
• Child litigant or child party.

STAGE 2 -  STARTING THE PROCESS

• The parties must agree to use arbitration to deal with either the whole of their dispute, or just one part of it. If in the middle of proceedings, you must agree to halt them. Once arbitration starts you should not start new court proceedings simultaneously.
  
• Choose an Arbitrator registered with the Institute of Family Law Arbitrators . You can approach a specific Arbitrator directly, and the Arbitrator will inform IFLA to ensure the correct forms are completed. At this stage, you can agree the Arbitrator's fees.
  
• Disagree on identity of Arbitrator? IFLA can nominate one.
  
• Sign and submit Form ARB1CS (now in its 4^th edition) to IFLA's administrator info@ifla.org.uk. The parties include full details of their dispute.
  
• Conditions of Arbitration: parties must agree to comply with the terms set out in the ARB1CS Form, which includes an obligation to comply with the Arbitration Rules, comply with decisions made by the Arbitrator and agree that the determination of the Arbitrator is final and binding (subject to certain exceptions).
  
• Safeguarding: As part of the ARB1CS, the parties must also obtain a 'basic check' from the Disclosure and Barring Service (DBS). If the parties are in current proceedings, they must provide the up to date welfare/cafcass reports or any local authority/ safeguarding checks.
  
• Arbitrator accepts appointment and Arbitration commences! Once an Arbitrator has been appointed, the Arbitrator will contact the parties, to agree the terms of the arbitration, including the nature of the dispute, the procedure to be adopted and fees.  A venue may also be considered but most Arbitrators can use their Chambers or Offices, if face-to-face meetings are required.

STAGE 3 - THE ARBITRATION 

• English law applies to the substance of the dispute.
  
• Parties in control of process. The Arbitration process can be done as a paper exercise (where the Arbitrator can decide, based on the papers submitted) or by telephone or face-to-face meetings.
  
• Procedure: The parties can agree a general procedure or an alternative procedure.
  
• General procedure is one where the arbitrator will conduct a case management conference at the start of the process and set down a final meeting if this is required.
  
• Alternative procedure is one that is agreed between the parties – for example a document only procedure or some other expedited process.
  
• Final Meeting can be agreed to suit everyone's availability and be set down swiftly.
  
• Prompt Determinations are delivered, which will include full reasons.
  
• Fees of Arbitrator must be settled before the determination is delivered, as well as any other costs, such as experts and venue hire.
  
• Court Order: The determination of the Arbitrator can be converted into a court order by the parties.
  
• Enforceability: The court order is enforceable in the usual way.
  
• Right of Appeal: The Arbitrator's determination is subject to a right of appeal if there are legal errors or serious irregularity.

Click here for the printable practice guide.

23/4/20

 

 

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