'The Rubicon has been crossed' on family arbitration, Baker J says

Mr Justice Baker has said the “Rubicon has been crossed” in the use of family arbitration.

He made the comment in a special ruling on the approach the courts should take on arbitration, following the end of what he described as the first reference by the family courts.

Baker J said the launch of the Institute of Family Law Arbitrators (IFLA) scheme, backed by Resolution, meant the scope for arbitration in matrimonial finance cases had “expanded significantly” during the proceedings.

Ruling in AI v MT [2013] EWHC 100 (Fam), Baker J said he was not issuing a “judgment in a conventional sense” but rather an “explanation of the court’s approach to the process of arbitration chosen by the parties as the means to resolve these issues”.

The case involved a couple who are both Orthodox Jews, the father Canadian and the mother British. Following the breakdown of their marriage, they decided to refer their disagreements over children and property to a senior rabbi of the New York Beth Din.

During the arbitration process Baker J said that he did “attach weight” to the Beth Din’s decision, but if he was “independently of the view that it was not in the child’s best interests”, he would “unhesitatingly say so and refuse to order it”.

He said the Family Procedure Rules 2010 encouraged parties to use ADR and allowed courts to adjourn the proceedings at any stage to enable it to take place.

Baker J said that in this case the court had been reassured that the principles applied by the rabbinical authorities were “akin to the paramountcy principles on which English children’s law is based”.

He warned: “It does not, however, necessarily follow that a court would be content in other cases to endorse a proposal that a dispute concerning children should be referred for determination by another religious authority.”

Baker J went on: “I have some concern about the delays in the process, and thus question whether it can be said that the case was dealt with ‘expeditiously’. I have no information as to the costs incurred by the parties. But overall it was, I think, fair and proportionate.

“So far as the children were concerned, the outcome achieved by the Beth Din award, as refined subsequently by the parties through further negotiation and agreement, was manifestly in the interests of their welfare.

“It was unnecessary for the court to embark on any lengthy analysis of welfare issues. So far as the financial settlement was concerned, the terms of the agreement were unobjectionable.

“The parties’ devout beliefs had been respected. The outcome was in keeping with English law whilst achieved by a process rooted in the Jewish culture to which the families belong.”

Nigel Shepherd (pictured), law reform spokesman for Resolution and an IFLA arbitrator, said: “The advantages of arbitration are speed, flexibility and confidentiality.

“Parties can also choose who deals with their case. Instead of waiting a year for a court hearing, they can send papers to an arbitrator, and there is no need for them even to turn up.”

Shepherd said that IFLA had trained around a 100 arbitrators, a mixture of solicitors, barristers and retired judges. He said the scheme covered the “full range” of financial disputes, but excluded disputes about children.

“Parties must accept English law principles,” he said. “This does not open the way for Sharia law, which does not comply with the scheme.”

He added that arbitration was “one way of relieving pressure on the courts” particularly after the legal aid cuts in April.