Surely it is time to embrace child arbitration?

With family court delays now further exacerbated by Covid-19, why are we not using child arbitration in far more cases?

Most practitioners of family law are aware that the pandemic has brought to a head a critical explosion of children cases and financial remedy cases in the family courts. It is well known that the number of private law cases within the court system has increased exponentially during the pandemic, so much so that there are clear concerns about the ability of court centres to cope with the demands now laid upon them. Complaints abound about the delays in listings of FHDRAs, and also as to the long delays in having to wait for a fact-finding hearing or a final hearing.

The Central Family Court is doing what it can to organise and manage the demand, and court centres such as Croydon, Guildford and Chelmsford are said to be buckling under the strain of the increased number of cases.

What is extraordinary is that, whilst so many practitioners and the parties to the applications complain about the delays, there seems to be little consideration of making use of the alternative form of dispute resolution which exists: arbitration.

Whilst the number of cases being taken to arbitration (both financial and children) has risen during the pandemic, they have not risen by the numbers that in reality they ought to have done when one looks at the delays in resolution of family matters in the courts.

The scope of arbitration is now fairly broad. From 6 April 2020 the scope of the children arbitration scheme was expanded to include relocation of a child to another country. Previously, family arbitration in respect of children disputes excluded relocation because of the international element. This important rule change has opened up many matters for the benefit of family arbitration. This change includes both temporary and permanent relocation to certain foreign jurisdictions, and could easily be utilised for determination of those types of applications which often necessitate a careful and speedy decision.

In “The Family Court and Covid-19: The road ahead” (9 June 2020), the President of the Family Division emphasised that the need has never been greater to have regard to alternative means of dispute resolution, including arbitration (paragraph 37). As the Court of Appeal notes in Haley, the…

“common misconception that the use of arbitration […] is the purview only of the rich who seek privacy away from the courts and eyes of the media […] is no more […] it is widely anticipated that parties in modest asset cases (including litigants in person) will increasingly use the arbitration process in the aftermath of the Covid-19 crisis as the courts cope with the backlog of cases, which is the inevitable consequence of ‘lockdown’.” (paragraph 5)

So it is very clear that arbitration is sitting there waiting to be used by lawyers and families to resolve – quickly, swiftly and fairly – disputes that concern children.

By way of a bit of background, for those who still may know very little about the scope and history of arbitration: the family law arbitration scheme was launched by the Institute of Family Law Arbitrators (IFLA), which is a not-for-profit organisation created by the Chartered Institute of Arbitrators, Resolution and the Family Law Bar Association, together with the Centre for Child and Family Law Reform.

IFLA runs two arbitration schemes: Financial and Property matters (commenced in 2012), and Children (commenced in 2016). They are both governed by the Arbitration Act 1996 and their own particular set of rules. The parties cannot contract out of those rules.

The Children Scheme

The Family Law Arbitration Children Scheme was launched on 18 July 2016, with the aim of giving parties the option of obtaining a prompt decision in a children dispute in a cost-effective manner.

The scheme empowers the arbitrator to determine private law disputes between people holding parental responsibility or those with sufficient interest in the child’s welfare in circumstances where there are no serious safeguarding issues.

These rules, including the fact that parties cannot contract out of them, are actually quite wide in application: once within the scheme the parties are free to agree the terms and scope of arbitration, including the identity of the arbitrator. There are many brilliant arbitrators sitting out there waiting to be used. Many come from a Resolution background. Many are experienced family law practitioners who have a wealth of experience in dealing with the issues that come before them. Others are retired judges who have of course many years of experience and others are senior practitioners who carry with them experience, understanding of the law and understanding of the way participants in the arbitration scheme, ie the parties, wish to be treated within the process.

There is a degree of choice around the arbitration, not only as to who “hears” the arbitration but how it’s organised, managed and even where it is held. You don’t have to stay within the confines of court centres or even court sitting hours. You might even be able to persuade the arbitrator to hear the case on a Saturday if the parties have other commitments, such as work or looking after the children, which make it practically impossible to attend during a weekday.

I have to say in this short article that I am an arbitrator. I am trained and qualified and I have conducted arbitrations dealing with interim decisions which needed speedy resolution, but I am also a family law practitioner. I see and understand the weight of litigation and how that sits on parents and families and how all involved can be affected by the litigation and the court process; I see all too well now the delay in listing applications, the stress this adds to those involved and how that has arisen through the pandemic and an increase in applications. It is clear that, as the pressure on the courts to resolve applications rises, so does the stress increase on the parties. As courts struggle to list applications, delay occurs and with it an increases in pressure on the parties. Delay exacerbates stress and adds to financial burdens and overall demands on the family members, which in turn of course have an impact on the children, who remain at the heart of the cases.

Rumour has it that even before the pandemic there had been only a very few children arbitration cases. It is difficult to see why arbitration is being sidelined by children practitioners. Our financial colleagues seem to be ahead of the game, using alternative dispute resolution (both private FDRS and arbitration) to deal with cases expeditiously and in turn reducing cost pressure and stress on those who engage in the process.

The aim of child arbitration is to give parties the option to attain a proper decision and one for the best of the children in a timely and cost-effective way. Urgent decisions such as school disputes, interim contact, decisions about temporary relocation or leaving the jurisdiction can be set up and decided within weeks.

It is important to note that whilst many people think that if there is a safeguarding issue in a case, or that becomes apparent in the case, then it means that case will be unsuitable for arbitration. This is not strictly so. There is not a strict bold line in cases with safeguarding issues. There will be cases where there may be a matter where it might appear to be safeguarding, but in reality the case is capable of being arbitrated. An example would be a case where a matter has been determined in an earlier order (with safeguarding issues) but the conclusion was that contact should happen. If within that case there arises an issue about schooling, or an argument about removal from the jurisdiction, that case can be arbitrated.

There are situations where the case is before the court – perhaps Cafcass is involved, having prepared a final report, but there are delays for final hearing. The parties can choose even at the DRA to opt out of the court process to avoid further delay and arbitrate. Cafcass can be asked to attend the arbitration to assist in any final determination rather than waiting for a delayed final hearing date (and they will do if the court makes plain it is in the interest of the children). It is important, of course, to liaise with Cafcass and ensure that they are able to attend, but experience has shown that they mostly will try to do so to ensure a case can be resolved.

Children Scheme arbitration requires parties to provide detailed safeguarding information at the commencement of the arbitration process, including a police check from Disclosure Scotland (which also applies in England and Wales) and, as of a change to the rules which came into force on 6 April 2020, a check from the Disclosure and Barring Service (in England and Wales). The arbitrator will then consider the suitability of the case for arbitration and will either accept or reject it. If there are current safeguarding concerns, then there is an obligation for the arbitrator to disclose that to the relevant authorities. As the arbitration process continues, the parties are obliged to keep the arbitrator informed of any other relevant safeguarding information that arises.

The arbitrator can consider what evidence is needed to resolve the core issues. They can appoint experts to resolve allegations of alcohol or drug misuse and can consider medical evidence if required. They have wide powers to ensure that necessary evidence is before them when considering applications and the evidence as a whole.

The arbitrator can consider participation directions to assist vulnerable witnesses in the process. The “hearing” itself can be set up with an eye on managing parties’ needs, and can be recorded too if the arbitrator deems that necessary.

One wonders why then – given the range of powers, the scope of arbitration, the delay in the court system in place now – many cases aren’t referred to arbitration? Is it because there is always a parent who thinks that they are better off by delaying something? That they think they are getting one over on the other parent or family member? Do they do it to delay and duck the outcome that they know is coming their way? Do lawyers choose not to arbitrate because it would lead to a clean and swift resolution of a case? Do parties need more information about what arbitration means for them, their children, their family and their finances? It is hard to tell why more people do not opt for this process. But what is abundantly clear is that, with the pressure currently on the court system, and the all-too-frequent last-minute adjournments of cases (due to lack of court rooms/judges to hear a case), arbitration should now be being used by far more of us. There is an argument that the use of arbitration is vital now to assist not only the families of the children who are the centre of applications – to ensure that the right outcomes are decided for the children themselves – but also to take the burden off the court system.

Consider this article a reminder, a request, a warning note. We as practitioners owe a duty of care to our clients. Arbitration is a good, efficient and useful tool in our armoury to bring resolution to the issues our clients come to us with. It is a realistic and feasible option to resolve cases far more swiftly than probably every court centre in England and Wales. It is time for us all to make better use of this alternative form of resolving disputes.