Isn’t a refusal to arbitrate a welfare issue?

One arbitration involved parents with impossible-to-agree differences between their “best school” selections for their 11 year old and who needed an urgent decision before the schools application deadline.  My colleague Dominic Raeside completed a wishes and feelings interview with the child by video call to a rainswept caravan in Wales, submissions were made and I issued the determination at 9pm the day before the deadline, 52 hours after being instructed.

The tailored process that is possible in arbitration contains cost: there is simply not the time for them to build up. Perhaps more importantly, arbitration can limit family damage.  In the alternative of court,

• with the passing months, parents risk being dug into ever deeper trenches at the extremities,
• whilst the space between them, where the solution might lie and where the parental alliance might build, becomes a no-man’s land; and
• The child may be left in chaos, without boundaries, clarity or ground rules as everything becomes fuel for the litigation.

But the speed of the solution in arbitration avoids all of that.  Arbitration gives its answer to families, where the parents are stuck and everyone moves on.  That answer may have its disappointments for one side or the other or both, but that would be the same if the process had been at court.

With such clear advantages and an easy route to conclusion, we might wonder:

• why the courts have queues that they struggle to manage (around 50,000 private law applications a year, taking on average 39 weeks to resolve), when there are families that can afford to pay for arbitration (and will pay more seeking out their answer with lawyers in the court process); and
• why children arbitration has managed only around 150 cases since the scheme went live in 2016.

Ask any lawyer and the answer is probably going to be the same “one parent almost always sees advantage in delay”.  ‘Status quo,’ one parent will be saying to themselves, ‘will dig in the default that now exists and any alternative that might better suit the child will be delayed entry into [the child[ren]’s lives and so take longer to gather traction when the court finally decides.’

An outsider might say:

• How strange that the court’s process, brought into existence to solve these problem ends up sustaining them.
• Why is a court process, focused on the child’s welfare seemingly powerless to protect the child from a parents’ actions that are so clearly contrary to that child’s well-being and in consequence we see courts overloaded with cases that could and should be resolved elsewhere?

The answer to that question is that the courts aren’t powerless; it just seems that the court system has not yet promulgated into popular consciousness, a response that would solve the problem:

• At the end of the day, the court will be guided in its decision by the welfare checklist.
• Section 1(3)(f) tells us that as part of this checklist, the court must consider how capable is each of the parents in meeting the child’s needs.

Well isn’t it plain that a parent who makes an election:

• That continues an unresolved conflict that will erode the chances of common ground and common sense breaking out;
• That risks entrenching ill-will between parents and reducing their ability to co-operate in the years ahead; and
• Which leaves the child with happenstance rather than what is in their best interests,

is not showing that capability?  And the court might well be saying at the end of the day at a final hearing of the parents’ applications: “if that parent was not meeting the child’s needs in the stance that they took in the litigation and about non-court alternatives to resolve matters, then where else might they be falling short?  And is that not a consideration that should impact on the orders I am about to make?”

Against this backdrop, the parent who obstructs the path to earlier settlement in arbitration might face some uncomfortable cross examination where perhaps they have insisted that:

• they do want what is best for the child,
• are fully on board with the other parent’s relationship with the child; and
• no they don’t insist that it is ‘their way or the highway’.

Our courts could start to observe that a parent’s refusal to arbitrate these cases weighs in the welfare balancing exercise and in consequence the court will be less likely to adopt the solutions proposed by that parent.  The sooner that our courts call out tactical delay for what it is and address it in the decisions that are then made at the conclusion of the case,

• the sooner that more cases are taken out of the court list for their earlier and cheaper resolution in arbitration and
• the sooner the courts can get on with the job of addressing that residue of harder-to-solve cases that are appropriately within the court system.

It will probably help children too.