Jean-Yves Gilg

Editor, Solicitors Journal

The new children 
arbitration scheme

The new children 
arbitration scheme


James Pirrie analyses the advantages of the scheme as a flexible and cost-effective alternative to court proceedings

James Pirrie analyses the advantages of the scheme as a flexible and cost-effective alternative to court proceedings

Non-court alternatives have proliferated for financial cases (private financial dispute resolution, early neutral evaluation, collaborative law, mediation, and, since February 2012, arbitration). On 19 July 2016, family lawyers saw the options for their clients increase radically with the launch
of the Institute of Family Law Arbitrators' children scheme.

There has been strong judicial support for arbitration in the family law context, including statements made by the president of the Family Division, Sir James Munby, in S v S (Financial Remedies: Arbitral Award) [2014] EWHC 7 (Fam).

Standard arbitration orders have been developed which have the approval of the president, who in November 2015 also issued guidance to further promote harmony between the judicial and
arbitral systems.The children arbitration scheme will be able to deal with:

  • Internal relocation within England and Wales (but not yet external relocation);

  • Child arrangements orders;

  • Holiday arrangements (though not currently applications for the temporary removal of a
    child from the jurisdiction);

  • Change of name;

  • Education disputes; and

  • Prohibited steps orders.

Over 40 arbitrators have already been trained under the scheme and more are expected to follow as it gets properly under way.

The scheme provides a flexible alternative to court proceedings and, to a large extent, hands control of the proceedings to the parties. It has many advantages, including:

  • Speed, convenience, and cost. The timetable for, and location of, the arbitration can be fixed more quickly than a court application and at a time convenient to all parties. With the family courts under increasing pressure, this is a welcome step. While the family arbitrator will charge a fee
    for the process, my experience in financial arbitration is that cost savings are between half
    and two-thirds, and cases that might have taken a year or more in the courts are concluded in as little as two or three months;

  • Choice of arbitrator.
    Rather than having a judge imposed on them who may not have had a practice involving the relevant specialism, as is the case in court proceedings, the parties are able to select who they would like to
    hear their dispute and can choose the arbitrator with the expertise best suited to the matter. The arbitrator will deal with the dispute from start to finish, in contrast to court proceedings, where it
    is not uncommon to have
    a different judge for each hearing;

  • Confidentiality. Arbitrations are dealt with in private, which can be of particular advantage to clients in the public eye. Complete confidentiality is assured;

  • Flexibility over content and timing. The arbitrator can
    be instructed to consider discrete issues, as well as full cases. Arbitration can be adopted at the outset of
    the proceedings or at any later stage;

  • Informality. In certain cases, and if there is agreement between the parties and the arbitrator, the arbitration can be dealt with on paper or by telephone, without the need for personal attendance at a formal hearing. Even if this
    is not possible, the whole procedure is likely to be much less formal than the court process; and

  • Integration. Work has already started on a range of creative and efficient offerings, for example to build on the progress in mediation and to parachute in the arbitrator to resolve 'stuck' issues where this is the best option for
    the mediation.

As with a court application involving children, the welfare of the children is paramount in the decision-making process and the arbitrator will need to address any safeguarding issues. The instruction of an independent social worker to ascertain the wishes and feelings of the children will be a key part of
the scheme, when appropriate, but the arbitrator will not meet or interview the children.

The process of family arbitration is a guarantee for
the parties that they will leave the process with a decision. For those who doubt their former partner's ability to reach a sensible agreement, it can be reassuring to know that they will exit the arbitration process with a clear outcome. The determination of the arbitrator is binding on the parties (save
in the case of legal errors or serious irregularity) and can,
if necessary, be converted to
a court order in the same way
as a financial remedy award.

This is an exciting time for arbitration, with the financial and children schemes now
both up and running. I expect that arbitration will grow even more in popularity, providing
a flexible and cost-effective alternative to the overstretched court process.

James Pirrie is the director of Family Law in Partnership and represented one of the parties in S v S @FLiPltd