Child law arbitration is a relatively new concept in the UK, launched in 2016. Delays in the family court process are causing increasing frustration, stress and anxiety for separated families meaning that arbitration is becoming a popular alternative to the traditional court process. Expediting the outcome of court applications is a key benefit of arbitration. We have recently experienced this in respect of an urgent decision for a child. With a hearing listed months in advance despite the very real urgency, and circumstances that simply could not wait, an arbitrated outcome was cost and time efficient and allowed the parents to move forward with their lives.
Prior to the arbitration commencing, both parents must agree on who will be appointed as the arbitrator; they must agree how the arbitrator is to be paid (ie, equally or from a particular resource); and they also must agree to be bound by the arbitrator’s decision. The Arbitration Act 1996 makes it clear that the court should only interfere with the decision of an arbitrator if there are serious concerns about the arbitrator’s decision, either because of a misinterpretation of the law or a major error of process. The decision of the arbitrator is therefore just as legally binding as an Order of the court and can be used and enforced in exactly the same way.
The swift arbitration process
Once a decision as to which arbitrator will be appointed has been made, what follows is a swift and relatively straightforward process. The first step is for the parents to sign an ARB1 form. This is a form produced by the Institute of Family Law Arbitrators which once signed and submitted legally binds the parents into the arbitration process. The parents’ lawyers will agree a timetable (not unlike a timetable set by the court) to prepare for the arbitration hearing.
The arbitration itself can, depending on the facts and the appropriateness, be carried out at a distance by written submissions sent simultaneously by email to the arbitrator, or, by verbal submissions made with everyone present at a hearing. If the arbitrator and the parents think it appropriate for written submissions to be used, then everything will be dealt with on paper. There will be no hearings and the parent will not have to come into contact with one another during the process. The determination at the end of the arbitration will also be provided without a hearing and an emailed judgment will be sent simultaneously to both parents. If a hearing is necessary, the parents and the arbitrator will agree on the process and there are the options of personal attendance, a telephone hearing or a video hearing. This flexibility over the process is one of the many advantages.
Another advantage is that the parents are able to retain control and choice. They can decide on the arbitrator’s identity; have an input into the process that will be adopted; and the identify of any expert/independent social worker who may be needed for additional reporting in respect of the children’s wishes and feelings.
Due to the efficiency of the process, costs are saved for the parents. The parents are aware of what the costs will be at the beginning of the process and usually the costs are divided equally, whereas in court proceedings it is usual practice for both parties to be responsible for their own costs.
How it can work in practice
The arbitration that we worked on came together in less than 10 days from the point of choosing the arbitrator to receiving the arbitrator’s written judgment. It meant that stressful decision making that would have hung over the parents for months awaiting the court hearing was dispensed with quickly, providing certainty as to the way forward for the parents and child and leaving them free to focus on other things.
If you would like to find out more about the arbitration process, please contact a member of the Family Team, and we will be happy to advise. Contact the team 01473 232121 or grayment@prettys.co.uk.
