Offering Children Arbitration Services: A Solution to the Current Landscape of Private Law Children Cases

The family justice system in England is currently facing unprecedented backlogs, with private law children cases taking longer to resolve than ever before. Between April and June 2022, there were 13,537 new private law applications, a 7% decrease from 2021. However, the number of private law disposals during this period was down 16% compared to the same quarter in 2021. On average, it took 46 weeks for private law cases to reach a final order, up 6 weeks from the same period in 2021. This trend has been ongoing since 2016, where the number of new cases has consistently outpaced the number of disposals.

The increasing backlog has placed significant pressure on the family court system and Cafcass, which worked with 102,486 children in private law proceedings in 2021/22, compared to 82,818 in 2017/18, a 23.7% increase. Sir Andrew McFarlane, in his speech “Relaunching Family Mediation” in September 2022, highlighted the need for change and the importance of alternative dispute resolution (ADR) methods to alleviate the burden on the courts.

The Push Towards Alternative Dispute Resolution

For some time now, there has been strong support for the use of ADR by the President of the Family Division, Sir Andrew McFarlane. He has consistently advocated for the consideration of ADR in family disputes, emphasising its benefits in various speeches and reports. The Family Law Solutions Group, in their report “What about Me?” released in October 2020, also recommended the use of arbitration to resolve specific issues between parents, avoiding lengthy and protracted court proceedings.

The Children Arbitration Scheme

The Children Arbitration Scheme, rolled out in 2016, operates under its own “Children Scheme Rules” specifically designed for family arbitration. The scheme covers various issues between parents or other people with parental responsibility or sufficient interest in the child’s welfare, including:

• Where a child should live (including shared living arrangements)
• Education and religious issues
• Health and non-life-threatening medical treatment
• Routine arrangements

However, the scheme does not cover applications for a child’s return to or removal from the jurisdiction (except proposed relocation to a Hague Convention country), disputes in respect of life-changing or life-threatening medical treatment, any dispute where a person under 18 holds parental responsibility for the child, or any case involving safeguarding issues for a child.

Setting Up an Arbitration

To set up an arbitration, the parties must agree to arbitration and provide the appropriate form, a DBS check or Cafcass safeguarding letter, and any local authority documents. Parties can select an arbitrator either by approaching individual arbitrators or the IFLA and selecting an arbitrator from the children panel. If parties cannot agree on an arbitrator, they can ask the IFLA to appoint one. Arbitration will commence once the arbitrator receives the forms and agrees to proceed.

The Arbitration Process

Arbitrators have wide-ranging powers to make case management or substantive decisions in disputed cases, including deciding what issues should be included, appointing experts or assessors, determining evidence required, and deciding the need for written submissions or oral hearings. Some key features of arbitration include:

• Arbitrators never meet subject children
• Children’s wishes and feelings can be canvassed via an ISW or other expert
• Third parties can be joined to proceedings if agreed
• Arbitrators can appoint experts even if the parties do not seek one
• There is an ongoing duty to disclose once the arbitration commences
• Communication is never ex parte
• Parties do not need to be legally represented

The Outcome

The arbitrator will issue a determination at the conclusion of the arbitration, equivalent to a final judgement and binding on the parties. The court must endorse the determination, which is done by lodging an order. Interim decisions cannot be appealed but can be varied, while final decisions can be appealed on a question of law.

Benefits of Arbitration

Arbitration offers several benefits, including:

• Speed: Matters can be resolved far quicker than in the family court.
• Less Acrimonious Approach: Arbitration offers a less confrontational approach.
• Continuity: The same arbitrator deals with all steps in the case.
• Flexibility and Control: Parties can choose their arbitrator and have more control over timescales and dates.
• Confidentiality: Arbitration remains private and confidential, unlike the increasing transparency in family courts.
• Cost: Costs are predictable and transparent, often more cost-effective in the long term.

Conclusion

In light of the current landscape of private law children cases, arbitration presents a viable and efficient alternative to traditional court proceedings. By offering Children Arbitration Services, we aim to provide a quicker, less acrimonious, and more flexible solution for resolving family disputes, ultimately serving the best interests of the children involved.

We can support you through the Arbitration process and provide legal advice. You may also wish to be legally represented at any Arbitration hearing.

Please contact our experienced family Partner Tayo Taylor at tayo.taylor@mhhplaw.com or on 020 3667 4783