The first children law arbitration has now taken place and it is hoped that this will be used as an alternative to the family law courts.
It is expected that the bulk of cases that are taken to arbitration will be disputes between parents about arrangements for the child(ren) or the exercise of elements of parental responsibility. There are restrictions about which cases can be determined by arbitration (for example, not those with an international element, where parents lack capacity or the making of injunctions) but the scope for the use of arbitration is quite wide.
An arbitrator is a specialist family law practitioner, normally a solicitor, barrister or Judge who is then specially trained. The arbitrator is chosen jointly by the parties and takes place at a venue to suit the parties by agreement with the arbitrator. The timetable for the issues to be determined by the arbitrator is set by agreement and the hearing will take place at a time, date and venue of the parties choosing, including in the evenings and at weekends. One of the main benefits of arbitration is that a final hearing (where the arbitrator will make a binding decision) can occur very quickly and is usually only for one day as it will start promptly and the arbitrator will only have one case to determine.
The first arbitration in respect of children law was referred to arbitration following a hearing at the family court. The court could not offer a final hearing for almost three months, whereas the parties needed a decision in the next couple of weeks. The relevant dates below show the speed of arbitration:
17.3.16 Application to the court
7.4.16 Application issued and directions made by the court (on paper)
10.5.16 First hearing
12.8.16 Second hearing
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 (if the matter had continued before the court)
It was therefore just ten days from the referral to the arbitrator to a final decision being made, compared to nearly seven months that the matter would have been before the court.
Arbitration is intended to be legally binding. When the decision is made, it is drafted by the parties’ solicitors into a consent order and submitted to the court for approval (normally without the parties needing to attend). The President of the Family Law Division has issued guidance stating that, “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 rehearsal for a final hearing before the court. Parties cannot ignore the decision if they do not like the outcome. An appeal is only possible if it is on a point of law or if there has been a serious irregularity in the way that the arbitration was conducted.
Applications before the court are rising and given the increasing burden upon the court, alternatives to this need to be considered. Arbitration will hopefully provide one alternative for families experiencing difficulties following the breakdown of their relationship.