Using Children Arbitration: The Basics
During the coronavirus pandemic, there is much uncertainty for expatriate families who have children disputes to resolve. In this series of articles, we will discuss the options for resolving family law disputes outside court. Most of the English courts are still running during the pandemic, using video link or telephone to conduct hearings remotely. However the courts are inevitably going to slow as the coronavirus lockdown progresses. We will discuss the options for settling family law disputes outside court. In this article, we discuss the children arbitration scheme in England.
In all legal matters, attending court for a trial or hearing can be stressful time, with substantial emotional and financial costs involved. For family matters in particular, the courtroom can charge an already tense situation and for some families is best avoided. However some families find it difficult to come to an agreement about arrangements for the children without support and intervention by a third party. Arbitration is often able to provide a 'middle ground' for families who would rather avoid court.
What is Arbitration?
Where two parties are unable to come to an agreement but the idea of going to court is perhaps too daunting or time consuming, by mutual agreement the parties can agree to use arbitration. Arbitration usually mimics the court process, but the parties set the time table and agree on an arbitrator to decide on the case. The Arbitrator is a specially qualified lawyer appointed with the consent of the parties to act as an independent third person and make a binding decision on the issues in contention. Whilst this person is not a Judge as you would have in a courtroom, their ruling (known as the 'award') is binding on all parties. A solicitor will simply convert the award in to a court order.
Family Law Arbitration Scheme
Since 2012, the Family Law Arbitration scheme has confined family arbitration to disputes relating exclusively to finances and property. In 2018 the decision was taken to expand the scope of arbitration for family matters to include children in the Family Law Arbitration Children Scheme administered by the Institute of Family Law Arbitrators Limited (IFLA). The Children Scheme – as it is commonly known – allows for arbitrators to adjudicate on contact arrangements between children and those with parental responsibility; matters involving where and who children are permitted to live with as well as relocation within the jurisdiction of England and Wales.
Why use the Children Scheme?
Arbitration for disputes involving children is a relatively new process and is still very much in its infancy but its scope for success appears to be increasing. There are a number of reasons as to why arbitration might be the best course of action in your circumstances when you consider:-
- One of the most crucial parts of arbitration is that the parties are able to choose their arbitrator from a list of qualified professionals on the IFLA website based on their unique requirements. It is essential that you only engage with arbitrators listed on this website as only they are qualified under the scheme.
- Furthermore, after being engaged, the arbitrator will be the only adjudicator on your matter. This allows your arbitrator to really get to know your case including the parents and children involved. This is not always possible in the courts due to listing and judicial availability.
- Arbitration also allows for parties to choose where matters are discussed. It is not uncommon for matters to be heard in different courts based on availability. Being able to maintain consistency of location helps to mitigate additional stress.
- Whilst arbitration is still very much a part of legal dispute resolution, you may be able to agree with your arbitrator and other party on the formality of the process. The formal tone of a court hearing is often daunting for most people, especially those who chose to appear as a litigant in person (representing yourself in court without a barrister) and arbitration provides recourse for that.
- You can use Arbitration to resolve small discrete children related issues, for example to resolve a dispute about where a child goes to school, or whether a child can go on holiday with one parent. Often there is no time to deal with these discrete issues within the court system which can take far longer.
- the choice of Arbitrator and type of process helps to reduce hostility between the parties.
- Efficiency and cost savings
- Arbitration allows both parties significantly more control over the adjudication process. As most arbitrators are only working on a handful of cases at any time, arbitration often mitigates the long waiting times experienced by those going through the courts. Even when dates are set for hearings, there can often be a lot of waiting around for parties and counsel, which can dramatically increase costs when most legal professionals charge clients per hour of their time, including time spent waiting on the day for a Judge. This also does not account for further distress caused when hearings are adjourned at the last minute.
- As previously discussed, keeping the same arbitrator throughout your matter greatly increases efficiency as they will already be aware of the issues to be discussed. Maintaining the same location also reduces travel time for all involved
- Arbitration does not require parents to attend mediation prior to the meeting, as they would have to do so before applying to courts for matters regarding children. This saves on time and often on finances.
- Arbitration is often dealt with significantly quicker than the court process and this means significantly less legal costs.
- For those seeking a more discreet form of resolution, arbitration grants significant privacy to the parties involved except where a duty to report arises in relation to the children or either party's immediate safety. Whilst cases involving under-18s are often anonymised and public access is limited, this cannot always be guaranteed when going through the court process due to the nature of the judicial system.
Any downsides to the Children Scheme?
As is to be expected, the arbitration process for children is suited to every case. If you are considering arbitration, you should consider these issues:
- Whilst the award following arbitration is binding on the parties themselves, a formal order may still need to be drafted by a solicitor to be submitted to court in order to be legally binding on the relevant parties. It is also possible that the court, upon receiving such an order will still require you to attend court, which has implications on both the overall cost and efficiency of the arbitration process.
- You should be aware that although overall arbitration costs tend to be less than court proceedings, the parties do need to meet the fees of the arbitrator (whereas at court the parties do not pay for the judge).
- Arbitration is private process and no government aid or funding is available, regardless of circumstances.
- Arbitration requires mutual consent and reasonably amicable relations between parties from the outset. An arbitrator cannot be engaged until both parties explicitly consent and continue to consent up to the point at which the award is made. Both parties must comply with the award when it is given and there are enforcement procedures in place should the rules of arbitration be broken by either party or the adjudicator themselves.
- You may wish to note that unlike the court process, a party cannot be ordered to attend arbitration under any circumstances.
- Arbitration cannot deal with some children disputes
- As previously discussed, the scope for arbitration in family matters and particularly for matters regarding children is limited. We would encourage you to discuss your case at the earliest opportunity with either a solicitor and the potential arbitrator for a consultation prior to engagement. The majority of IFLA arbitrators are able to offer an initial obligation remotely with no obligation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. For any further queries or follow up please contact Expatriate Law at firstname.lastname@example.org.