Following a significant rise in the use of family arbitration to resolve financial disputes following divorce, Stewarts has adopted a new children arbitration protocol. Its aim is simple: a child-focused approach to parental disputes, and an end to the tactical use of delay by either parent.

So far as we are aware, no other family law firm in England and Wales has adopted a protocol of this kind. Where our clients face a dispute about their children (or grandchildren) that cannot be resolved by agreement and which falls within the scope of the Family Law Arbitration Children Scheme, arbitration will now be our starting point for determining all such cases.

Arbitration is now frequently used to resolve financial remedy disputes. It has proved to be effective, but it is used far less in children cases, despite the clear advantages it can offer families.

One reason, we suspect, is that a parent content with the current arrangements may see little incentive to agree to a process that can produce a decision within weeks or months, when a contested application in the family court may take considerably longer.

That may be understandable from a tactical perspective. It is harder to see how it benefits the child, especially as the Children Act 1989 requires the court to have regard to the principle that delay in determining a question about a child’s upbringing is likely to prejudice the child’s welfare. The longer a dispute remains unresolved, the longer children and their families live with uncertainty. Despite the Act having come into force almost 35 years ago, the court process and the family justice system have failed to reduce this prejudicial delay.

The courts are rightly seeking to reduce delay, most recently through the Child Focused Court (CFC) model, which is intended to make private children proceedings faster and more efficient. Those reforms are welcome but are not always suited to complex cases and risk a form of summary justice in which issues are not properly explored. Court proceedings can leave parents facing prolonged uncertainty, whereas arbitration offers a prompt decision without any corresponding reduction in the quality or thoroughness of the decision-making process.

Listing is another problem, with the courts under sustained pressure due to the large number of cases. We have direct experience of parties spending significant time and money preparing for hearings that are vacated at short notice. In arbitration, by contrast, parties can have much greater confidence that a fixed hearing will take place.

How the protocol will work in practice

We tell clients and the other party about the protocol at the earliest appropriate opportunity. If a dispute cannot be resolved by agreement, we expect arbitration to be actively considered as the principal means of determining it.

In suitable cases, we seek to agree the appointment of an arbitrator at an early stage, so that if disputes arise later, they can be referred immediately to someone who already knows the background from having read the key documents and understands the issues. Where parties choose to arbitrate, we also encourage them to agree a framework under which future disagreements can be referred to arbitration swiftly.

If arbitration is proposed and declined, and court proceedings are subsequently issued, we ensure that the court is aware that arbitration was proposed. We urge the court to scrutinise why it has been refused and whether there are any welfare reasons to justify that.

Neither safeguarding concerns nor allegations of domestic abuse automatically place a case beyond the scope of arbitration, and whether arbitration is suitable depends on the circumstances of the individual case.

As part of the application process, parties provide safeguarding information, which enables the arbitrator to consider suitability at the outset. In some cases, safeguarding concerns may mean that the court is the more appropriate forum. In others, arbitration may offer particular advantages, including privacy, procedural flexibility, and the ability to make arrangements that enable all parties to participate effectively and safely. The protocol treats safeguarding as a question of suitability to be assessed on a case-by-case basis, rather than as an automatic bar to arbitration.

Why we think arbitration suits most children cases

The most obvious advantage is speed. Many children disputes can be resolved through arbitration in a fraction of the time they would take in court. Where the issue concerns a child’s day-to-day life, the speed with which a binding decision can be obtained is often of real importance.

The parties can also choose who will decide their case from a growing pool of specialist family arbitrators, including former judges, King’s Counsel, and senior family law practitioners. The same arbitrator remains involved throughout. Court proceedings cannot always offer the same continuity, as different judges may become involved at different stages of a case. Arbitration therefore provides the additional benefit of a decision-maker with a detailed understanding of the family’s circumstances.

The process itself is flexible. Matters can be determined following a hearing or on written submissions alone, remotely, or in person. Individual issues can be resolved as they arise, rather than waiting months for the next available court appointment. Proceedings are also private and confidential, something many families regard as a significant advantage.

The parties do pay for the arbitrator and normally share the arbitrator’s fees equally. However, a more streamlined process, coupled with avoiding ineffective or adjourned hearings, can mean lower overall costs and a more proportionate route to resolution.

Our experience

Stewarts was an early adopter of family arbitration and has acted in arbitrations involving almost every type of financial and children dispute, from discrete interim applications and procedural disagreements to entire cases running from separation through to final determination.

Some have involved relatively straightforward disagreements about arrangements for children. Others have concerned highly complex international disputes or substantial financial cases. Throughout, we have applied established family law principles and procedures, enabling clients to retain the safeguards and rigour of a judicial process without many of the delays associated with court proceedings.

The protocol is led by Alex Verdan KC, Head of Children Law at Stewarts, whose experience as a part-time judge, advocate, and arbitrator has informed its development.

Court proceedings will remain the right route for some families, and arbitration will not be suitable for every case. Where a dispute falls within the scope of the Children Scheme, however, we believe it should be considered at the earliest opportunity as a private, efficient, and effective way to obtain a binding decision about a child’s welfare.