Arbitration in children cases
What is arbitration?
Family arbitration is a form of private dispute resolution in which parties enter into an agreement where they ask a suitably qualified person (the Arbitrator) to decide a dispute they have about their children.
It is like Court proceedings, but it has lots of benefits for parties as set out below.
You can use arbitration alongside mediation and they work well together to help you and your family reach decisions/conclusions about any issues you cannot agree about.
For more details and how to start this process look at the Institute of Family Law Arbitrators (IFLA) website at www.ifla.org.uk.
Why use arbitration?
- It is a key dispute resolution process which allows you to resolve disputes about children quickly and cost effectively.
- It allows you an alternative to overloaded Court lists.
- It allows you the choice of who will make the decision in your case. Arbitrators are all specialist children practitioners with years of experience. You can either agree who the Arbitrator will be or ask Institute of Family Law Arbitrators to nominate an Arbitrator for your case.
- It allows you to absolutely control the way in which the hearing will take place including venue, date, time, evidence to be provided both written and oral, need for an independent social worker assessment or not.
- It is a bespoke process. You together with the other party can choose if they want a hearing with oral evidence, submissions only or a decision on paper.
- It allows you to control absolutely what decisions will be made as the Arbitrator cannot step outside the agreed remit of decisions to be made, so no risk to you as with a Court hearing where the Court has jurisdiction to consider and make other section 8 orders.
- It is a very swift process.
- It is entirely confidential. No need to attend a Court building.
- It allows you to agree and instruct an Independent Social Worker or other expert to provide a report within the Arbitration and this can be limited to wishes and feelings of the child/children if this is all that is required.
What cases does it cover?
- All section 8 order disputes, including who the children will live with, what time they should spend with the other parent, what school the children should attend. Including those with parental responsibility for the children and other persons holding parental responsibility or sufficient interest in a children’s present or future
- Relocation of children within England and Wales.
- Relocation of children on a permanent basis to a Hague Convention country.
- Temporary removal from the jurisdiction to a Hague Convention country.
- Routine and non-life-threatening medical treatment.
What cases does it cover?
- Cases involving current safeguarding issues (including domestic abuse, drug/alcohol issues or serious mental health difficulties). This can be resolved though by starting the Court process and going through the Cafcass safeguarding process and if that is clear you can step back into arbitration.
- Removal to non-Hague Convention country.
- Application to have a child returned to this jurisdiction from another country.
- Authorisation of life-changing/ life-threatening medical treatment.
- If a party lacks capacity under the Mental Health Act
What is the process?
- If you are uncertain many arbitrators offer a free pre- commitment phone call to discuss and agree if the case is suitable for arbitration.
- Complete the Form ARB1CS and the safeguarding questionnaire (you will find this on the website above).
- Either nominate a specific arbitrator or the Institute will appoint one for you.
- Preliminary meeting for case management directions. This can be done in person, by telephone or on paper.
- The hearing itself will be as you want it to be. It can be formal like a Court hearing with the room set up with a witness box etc or it can be more informal if that is what you agree and prefer.
- Most arbitrators will travel to whichever venue you choose so this can be a barrister’s chambers, solicitors’ offices or another private venue.
- Any person giving evidence will give evidence on oath and most Arbitrators will record the hearing.
- The Determination which will be in Most arbitrators will send this to you within 48 hours of the hearing.
Cost/who pays for it?
- You will be given a single fixed fee which will include a day for preparation/reading, the preliminary meeting, the hearing itself and the writing of the determination. There are no hidden extra costs.
- You and the other party can share the cost, or one of you can pay the fee.
Is a decision final?
- Yes, it is binding and final. There are some options for appeal.
- If you want the Determination to be turned into a child arrangements order you can agree this at the start of the arbitration and you will receive an order drafted by the Arbitrator which can then be sent to the local Designated Family Judge together with a copy of the written Determination with a request that it is turned into a child arrangements order.