What is Children Arbitration?
It’s like a private court where you choose the judge to make a decision about your family dispute over children and where both sides agree to accept the decision made.
Arbitration is not mediation, early neutral evaluation or an advice service. Arbitration is a legally approved process which resolves your dispute with a sound final decision made by a qualified expert in children law.
What chambers can offer
Chambers can offer the services of barristers who are qualified as Children Arbitrators, accredited and regulated by the Institute of Family Law Arbitrators. Children Arbitration is also governed by the Arbitration Act 1996. All our Arbitrators are senior expert children law barristers, having practised as such for many years.
What sorts of disputes can Children Arbitration resolve?
The issues that can arise when parents disagree about their children have had different names over the years. Custody, residence, and ‘live with’ all mean the same thing. Similarly, contact and ‘spend time with’ mean the same thing. The current name for the living and contact arrangements for children is a child arrangements order.
Arbitration can decide most issues that come under section 8 of the Children Act 1989 such as where the child should live, how much time should be spent with each parent and other family members, schooling and the problems that arise when one parent wants to move with the children to a distant part of the country. For those involved in a disagreement over their children, Children Arbitration is a very attractive alternative to Family Court proceedings.
The decision of the Arbitrator is called a Determination. It is a written, detailed and reasoned judgment, which is completely independent. The same substantive law must be applied in the arbitration as is applied in the Family Court.
When instructing Chambers, the hearing could be listed within days or a few weeks and at a flexible time, including weekends. The cost of the service is less than proceedings through the family court, which can exceed £10,000.
The benefits of Children Arbitration
- Fixed fees with no hidden costs
- The hearing will be more relaxed
- The whole process will be private and the media will be excluded
- The parents can represent themselves or each have a lawyer, or a friend to help them (unless there is valid objection)
- If the parties agree, the case can be dealt with on documents alone
- The hearing can be held at a suitable venue at low cost, but the use of Chambers’ conference rooms is free
- Arbitration hearings are not expect to last more than one day and can be arranged for evenings or weekends
- If required, an independent social worker can be instructed to help gather information about what the children need, and to ascertain their feelings and wishes. Fees vary, but are likely to be in the region of £33 an hour.
- You may be able to use an expert such as a psychologist even it is not strictly necessary, but is merely desirable or helpful, especially if the other side agrees.
- Your case will be the only case dealt with on your chosen day.
- Unless there is a very good reason, the case will start on time, so there will very rarely be any waiting.
- The case will have only one main hearing. A planning meeting (directions hearing) can be held via telephone or dealt with on paper beforehand.
- We aim for the decision to be made and sent to you with reasons within 7 days of the hearing.
Is the decision of the Arbitrator binding?
Arbitration is a process whose outcome is generally final. There are very limited bases for raising a challenge or appeal, and it is only in exceptional circumstances that a court will exercise its own discretion in substitution for the decision of the Arbitrator.
The President of the Family Division of the High Court has stated in his Practice Guidance of 23 November 2015:
”Where the parties are putting the matter before the court by consent, … it can only be in the rarest of cases that it will be appropriate for the judge to do other than approve the order.”
The parties are expected to apply to the Family Court for an Order in the same terms as the Arbitrator’s decision.
Do I have to attend a MIAM (Mediation Information and Assessment Meeting)?
If you apply to the court for a consent order within 4 months of taking part in Children Arbitration, you are exempt from attending a MIAM: Family Proceedings Rules 2010 rule 3.8(1)(d).
Can the decision of the Arbitrator be enforced?
Yes. You will probably be asking the Family Court to make an Order under the Children Act 1989 in the same terms as the arbitration order and you can apply to enforce that Family Court Order. This is likely to be done as paperwork by a Judge of the Family Court, which court enforcement proceedings can follow.
If necessary, the arbitrator’s decision and order can also be enforced by making an application to the court under section 66 of the Arbitration Act 1996:
“An award made by the tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect.”
Who are our Arbitrators?
Sarah Forster MCIarb
Maria Hancock MCIArb
Amanda Clarke MCIArb
What we can’t do yet
Arbitration is expanding all the time, but things that we can’t do yet include cases with an international element, life-threatening medical treatment cases, cases where a party lacks capacity under the Mental Health Act 2005, cases where a party is a child, the making of injunctions and applications to commit someone to prison. Much as we would like to see the children that we are making decisions about, the rules don’t allow us to meet them.
Would you like more information?
Whether you are a lawyer or member of the public, if you would like to find out more or wish to appoint one of our Arbitrators, please contact the clerks by telephone on 01273 480510 or by emailing them at firstname.lastname@example.org.
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