The Child Arbitration Scheme – resolving family disputes about children outside of court

Until now the Family Law Arbitration scheme, launched in 2012, has been exclusively for disputes relating to finance and property. The scheme has now been extended to include disputes relating to children, offering parents an out of court alternative.

The experience of attending court can often contribute to an already stressful time for parents. The introduction of the Child Arbitration scheme provides parents with a tried and tested alternative to the court. But why should you choose Arbitration? And is it all good news? 

What does the Children Arbitration Scheme cover?

Arbitration is now available for disputes about:

• Where the children should live;
• How much time the children should spend with each parent; and
• Internal relocation within England and Wales.

At present, disputes involving local authorities or cross-border issues (such as relocation abroad) are not able to be arbitrated under the new scheme. However, if the scheme is successful, it is likely that the remit will be extended.

Why choose Arbitration?

Whether the parents are represented by lawyers or themselves throughout the process, Arbitration provides the platform to mutually agree arrangements without the need of the courts’ involvement or judgement. Key advantages include:

• Arbitrator – The parents are able to choose an Arbitrator who is experienced in family law, impartial and trained specifically to deal with Arbitration. After hearing evidence from both sides, the Arbitrator will produce a formal written decision. This is the equivalent to a court judgement and will be binding on both parents.
   
• Continuity – In court proceedings, a case can be heard by a number of judges throughout the process. Each judge must take the time to immerse themselves in the facts and to understand the issues. In contrast, the same chosen Arbitrator will deal with a case from start to finish. This means that they will gain a greater understanding of the parents, children and issues involved.
   
• Efficiency – Arbitration provides parents with the opportunity to tailor the procedure to suit their needs and account for any other commitments. As you are not competing with other cases to be heard by a Judge, time is not wasted waiting for a court date or in waiting areas or consultation rooms at court, where much time and money is lost.
   
• Autonomy – In Arbitration, the parents are able to choose the Arbitrator, the venue, the date and the specific issues to be determined. In agreeing the most convenient location (e.g. Solicitors’ offices or Barristers’ chambers) the parents can create a more informal, less daunting setting than a court room. In contrast, in court proceedings, the parents are unable to choose the judge or the date, time or venue of the hearing. Arbitration offers an element of control which is missing in the court process.
   
• Privacy – Parents who choose Arbitration are prohibited from reporting their dispute or the outcome. Unlike court proceedings, there is no risk of media intrusion and no possibility that your judgement will be reported.
   
• Mediation - The majority of applications to the court require parents to attend a Mediation Information and Assessment Meeting (a “MIAM”) subject to various exemptions. Parents who choose Arbitration will not be required to attend a MIAM. Unlike Mediation which is used to facilitate an agreement, an Arbitrator is able to determine the issue and provide a binding decision.

Are there any disadvantages?

• Enforcement – In certain circumstances, parents may decide that it is prudent or necessary to have the arbitral award reflected in the form of a court order. This will aid enforcement should one parent not comply with the decision. Applying to the court for this order will inevitably add some cost in the form of legal and court fees. 
   
• Arbitrator’s fee – The parents are responsible for paying for the Arbitrator’s time, unlike the court process where the parents do not pay for a Judge. Despite this additional cost, the greater efficiency of the Arbitration process may mean that the overall legal fees are lower than the court process. 

Conclusion

The Child Arbitration scheme is a positive development which grants parents greater autonomy and control over their dispute and the option to resolve their issues more cost-effectively without sacrificing justice or independent review. The main obstacle that remains is to ensure that clients are aware of this new option and its advantages, of which there are many.

The court process, which is increasingly characterised by costly delays, is daunting to many and places further strain on already fractured relationships. In contrast, Arbitration can provide a more efficient, cost-effective route to a binding resolution. There has to be some element of agreement between the parents - they need to agree on the chosen Arbitrator, the venue, the process and the issues to be determined. In our experience, this foundation of agreement helps set the scene for a far more effective, less damaging route to a binding resolution for both the parents and children.

Further information

If you would like to find out more about Arbitration or seek advice on issues involving children, please contact a member of our family team. You can also find information about mediation and other alternatives to the court process HERE.