Which issues can you arbitrate in children matters?

Arbitration can be used to resolve disputes relating to the present or future welfare of a child. This includes issues regarding a child’s upbringing, living arrangements, education, religion and health (including non-life-threatening medical treatment).

Applications for relocating a child, both within England and Wales and abroad, can also be dealt with through arbitration. In the case of international relocations, the country you wish to relocate to must adopt certain legislation to protect children. If you are considering an international relocation, please contact us for advice on whether it is possible to do so through arbitration.

Arbitration can be used to resolve a wide variety of disputes in relation to children. However, if there are serious concerns about the safety and welfare of either parent and/or the child concerned (such as domestic abuse, child abuse or substance abuse), arbitration may not be suitable depending on the circumstances.

How can arbitration help to resolve children disputes?

Privacy
Arbitration is an entirely private process, unlike court proceedings.

In recent years, there has been a push for increased transparency in the family courts. Accredited journalists and legal bloggers can attend and report on private law children hearings in select courts across England and Wales and gain access to certain case documents.

Unless the court grants its express permission, journalists cannot publish any information that would enable a child to be identified, including their parents’ names. However, this does not prevent them from reporting on cases anonymously. In contrast, arbitration is private and allows cases to be dealt with discreetly and without any publicity.

Speed
The family courts are under increasing pressure, which can lead to significant delays. While there are guidelines on how quickly cases concerning children must be dealt with, these are often not adhered to due to a lack of resources and court time. Applications regarding future arrangements for a child can take 12-18 months to resolve in some busy courts, which comes at an emotional and financial cost to all involved.
Arbitration allows disputes relating to children to be resolved far quicker than they would be through the court. The parties have greater control over the timetable of proceedings in arbitration, including the number of hearings required and the dates on which hearings take place. This means that, in some cases, disputes could be resolved from start to finish in as little as six months.

Mimic court process
To benefit from the privacy, speed and judicial continuity offered by arbitration while maintaining the rigour of the in-court process, our clients often agree to use arbitration as a private court process. This means the arbitration can be structured to reflect the usual stages of in-court proceedings:

• Initially, the parties will agree between them which issues are in dispute. For example, how much time a child should spend with each of their parents.
• A directions hearing will take place before the arbitrator at which they will identify the evidence they require to make a decision in relation to the issue(s) in dispute. This will include each party preparing witness statements and, in some cases, expert evidence, such as a report from an independent social worker.
• The parties will exchange witness statements, and any appointed experts will provide their reports. A further directions hearing may be required if more evidence is needed. While working through these stages, if additional issues arise (for example, in relation to holidays or a child’s education), the arbitrator can deal with these separately.
• A final hearing will take place, at which both parties (and the expert(s) if required) will give oral evidence. The arbitrator will reach a decision that is binding upon the parties (known as their “determination”). In most cases, the arbitrator’s determination will be converted into a court order.

In most cases involving children, an application will be made to the court at an early stage, which will then be suspended while arbitration is ongoing.

Tailored approach
Alternatively, arbitration can be used within ongoing court proceedings to resolve specific issues that might need urgent resolution, such as which school a child will attend or the arrangements for a summer holiday.

Appointed arbitrator
Whether parties choose to arbitrate the whole matter or a specific issue, having an allocated arbitrator means the parties benefit from continuity and access to the arbitrator if an urgent issue arises.

Expert evidence
The arbitrator can order the same expert evidence from a qualified professional as an in-court judge, for example, an independent social worker or psychology/psychiatry expert.

Compatible with other forms of non-court dispute resolution (NCDR)
As with the in-court process, arbitration can take place alongside other forms of NCDR, such as mediation and solicitor-led negotiations. This allows the parties to reach an agreement between them, rather than having an arbitrator impose a decision. In addition, arbitration does not preclude parents from engaging in therapy or other programmes to improve their co-parenting relationship.

• Contact our Children team