Children Arbitration – how is it going and is it time to expand the scope?

March 28, 2019 Posted by:

IFLA’s Children Arbitration scheme, launched in July 2016, has been a considerable success. It has provided an excellent forum for resolving disputes about children quickly and cost-effectively, applying the law of England & Wales, without resorting to court proceedings.

As all lawyers who undertake children cases know, the resolution of disputes outside the court arena is actively encouraged in cases in which it is safe and appropriate to do so. This is at the heart of the child arrangements programme and is the rationale for the MIAM requirements. In addition, the court is required to consider out-of-court dispute resolution at each stage of the process; a good number of cases which are commenced in court have been successfully adjourned out for arbitration.

In July 2018, the children scheme achieved the endorsement of Sir James Munby, the then President of the Family Division. His Practice Guidance: Children Arbitration in the Family Court, promulgated on 26 July 2018, dealt clearly with the interface between the Family Court and arbitrations conducted in accordance with the provisions of the Arbitration Act 1996 (as with the IFLA scheme). It also introduced three new arbitration-specific additions to the suite of standard orders for use in children cases. One of these is an order staying the proceedings pending the outcome of arbitration.

The Guidance flagged safeguarding as a fundamental element of any dispute resolution (whether or not court-based). This reflected the 3rd edition of the Rules of the scheme, effective from 1 July 2018, which tightened up the safeguarding duties of the parties and the arbitrator and enhanced the powers of the arbitrator in relation to safeguarding under the scheme.

Certain cases are clearly not suitable for arbitration. Those where safeguarding issues exist at the time of referral to arbitration should be picked up during the disclosure process under Article 17 of the rules. This requires each party to provide accurate information relating to safeguarding and protection from harm in their Form ARB1CS and Safeguarding Questionnaire and also to obtain and provide the arbitrator (and each other) with a basic check of the safeguarding register kept by Disclosure Scotland (alternatively, an up to date Cafcass Report or Schedule 2 safeguarding letter prepared in current proceedings). This disclosure should reveal relevant criminal convictions, cautions and involvement (concerning any child) with children’s services by any party or any person with whom a subject child is likely to have contact. Cases which involve issues about the physical or emotional safety of a party or a subject child, such as where there are allegations of domestic violence, drug and/or alcohol abuse or mental illness, such that safety is an issue, are unlikely to be suitable.

The duty to make disclosure of safeguarding issues continues throughout the arbitration; Article 17.2.1 requires the arbitrator to consider, whenever such an issue arises, whether the arbitration may safely continue. If, in the judgment of the arbitrator, it is not safe to continue, he or she must terminate the arbitration and inform IFLA and the parties accordingly. There are also reporting duties in relation to safeguarding matters; Article 17.3.2 entitles the arbitrator to report to a relevant local authority or other government agency without informing the parties in advance, for example where it may jeopardise an investigation if prior notice of a report is given.

The safeguarding provisions are entirely sensible. One change does, however, seem appropriate. The reason for the requirement in the Rules to obtain a safeguarding check from Disclosure Scotland was that, at the time the scheme was set up, the Disclosure and Barring Service (which performs a similar function in England & Wales and holds the same information) would not accept application from private individuals but only from government agencies, professional bodies and employers. This has now changed and I would like to see a minor amendment to the Rules to provide that the disclosure may be obtained from either Disclosure Scotland or the Disclosure and Barring Service.

A more difficult issue in relation to the scope of the scheme is whether the current bar on arbitrators dealing with applications for the permanent or temporary removal of a child from this jurisdiction should be removed. When the scheme was set up, it was felt that it would be right to err on the side of caution and exclude all such cases initially, but to keep an open mind about expanding the scope of the scheme, once it had been running for a while. Reservations about including relocation cases are understandable. Permanent relocation of children out of the jurisdiction with one parent can be a very significant step, affecting almost every aspect of their lives, including, importantly, their relationship with the parent left behind. Temporary relocation may carry a risk of failure to return the child, taking the case into the realms of the inherent jurisdiction in relation to child abduction. However, I believe there is a need to reconsider in light of the success of the scheme so far.

Temporary and permanent relocations are single-issue cases which are, in many ways, ideally suited to arbitration. They often need speedy determination and can be dealt with at far less cost outside the court arena. An Independent Social Worker can conduct the necessary enquiries and report to the arbitrator (in the same way as in child arrangements cases where such enquiries are necessary). Permanent relocation decisions are often difficult but should be well within the competence of an arbitrator who, in order to have qualified, will have considerable experience of children cases, at least as a lawyer and, probably, as a part-time judge. If undertakings to the court or other measures to ensure a return after temporary removal are appropriate, the arbitrator can direct the parties to ensure that these are dealt with (usually by a consent application to the court) as a condition of the granting of permission. It might be appropriate to limit scope to cases involving jurisdictions which have reciprocal arrangements with the United Kingdom for enforcement of this type of order and to provide that it shall be a condition that the determination is embodied in a consent order of the Family Court. Alternatively, the rules might provide (in a way similar to safeguarding) that, where the arbitrator considers that there is a significant issue about whether the child would be retained abroad, the case will not be suitable and will not be accepted.

The inclusion of relocation cases within the scope of the scheme would greatly enhance it and be likely to be seen as a real alternative to litigating these issues through the court. I very much hope that the Rules committee will give serious consideration to this.