The Court process is lengthy, unpleasant and acrimonious, and can often result in parents facing large invoices for legal fees regarding sometimes relatively trivial matters. There are alternatives, but most people don’t consider these in relation to matters surrounding the arrangements for children to spend time with both parents or other relatives. At Johnson Astills, we take a holistic approach and will advise you of all options available, other than a Court application. One of these options is arbitration.
What is arbitration?
If the Court process is akin to the NHS, a helpful analogy is to consider arbitration as if paying privately for healthcare. Both parties agree to hire a trained arbitrator, who will be an expert in children matters, to make a decision relating to a particular issue. The parties agree to be bound by the order made by the arbitrator, and the order has the same level of enforceability as if it were made by a Court. Orders made by arbitrators can be appealed to the Court in limited circumstances, with the process and basis for this being similar to appealing a Court order.
What matters can arbitration deal with in respect of children?
Generally, any issue between parents, other parties that may have parental responsibility for the children (e.g. special guardians) and/or parties with sufficient interest in a child’s present or future welfare can be arbitrated, including:
- Who the children should live with
- Where children should live, if the parent with whom they are living is thinking of moving to a different location (even within the UK), particularly if this may impact arrangements for them to spend time with the parent with whom they are not living
- What the arrangements should be for the children to spend time with the parent, or other relevant party, they don’t live with
- Which school children attend
- Disputes concerning routine and non-life-threatening medical treatment
- Applications to take children to a foreign country, either temporarily for a holiday or to permanently relocate, when others with parental responsibility do not agree
What matters can’t arbitration deal with in respect of children?
The following matters cannot be dealt with in arbitration:
- Returning children from outside England and Wales, if children have either been wrongfully removed to or wrongfully retained in such a location. This includes seeking the return of children from Scotland or Northern Ireland.
- A dispute which involves the jurisdiction of a Court outside of England and Wales, for example if children are living outside the jurisdiction and parties wish the arrangements for the children to be determined, or any other decisions that may be required relating to children living outside of the jurisdiction.
- A dispute concerning life-altering medical treatment for a child/children.
- When a person under 18 years of age has parental responsibility for a child/children, and
- A case where a party to the proposed arbitration is not capable of giving instructions to a solicitor, for example by way of lack of mental capacity.
As well, both parties considering participating in arbitration are required to disclose criminal convictions and any involvement with social services. If the arbitrator concludes that because of the information before them it would be unsafe for either party or, more crucially, the children to continue to arbitrate the matter, they must not continue to do so. The arbitrator is also bound to inform the relevant local authority of their concerns as soon as possible, if these raise safeguarding concerns in respect of the children.
What are the benefits of arbitration?
Arbitration is often quicker than the process of going through Court proceedings, and in most cases cheaper. There are larger up-front costs, but the costs of fully contested children cases will often outstrip the costs of going directly to an arbitration hearing. The parties to mediation will agree a mutually convenient date with the arbitrator for the hearing to take place, unlike with the Court process when you will be given a date and expected to attend. This level of control means that arbitration matters are often concluded quicker than if they were heard through the Court.
If you are contemplating arbitration, or have other questions in relation to children matters, please do not hesitate to contact the Family Team at Johnson Astills to discuss your matter further. Please call us at our office in Leicester on 0116 255 4855 or our office in Loughborough on 01509 610 312 and ask to speak to a member of the Family Team. Alternatively, you may prefer to email us at legal@johnsonastills.com or complete our enquiry form.
