In a ruling published today, Mr Justice Baker said: “This is not… a judgment in the conventional sense of an exposition of the reasons for the court’s decision on the…issues, but rather an explanation of the court’s approach to the process of arbitration chosen by the parties as the means to resolve those issues.”
The process in question was the New York Beth Din, a traditional Jewish court. The case concerned a couple in their 20s, both observant orthodox Jews. The father was Canadian and the mother British. They married in 2006 in a traditional Jewish ceremony and initially lived in Israel, returning to London for the birth of their first child.
Later they planned to move to Toronto so that the father could work in his own father’s business there. However the marriage began to encounter difficulties and the couple separated in 2009 shortly after the birth of their second child.
After various disputes regarding access to the children, the father, who was by then living in Canada, began proceedings under the Hague Convention on the Civil Aspects of International Child Abduction
Before this application could reach the courts, however, the couple agreed to refer their marriage for arbitration by a senior rabbi in the New York Beth Din. The parties then made an application to Mr Justice Baker forthe Hague Convention application to be dismissed in favour of an agreement to undergo binding arbitration by the Beth Din.
The judge, however, would only agree to non-binding arbitration. Binding arbitration, he believed, would be “unlawful”, because it “flouted the principle that the court’s jurisdiction to determine issues arising out of the marriage, or concerning the welfare and upbringing of the children, cannot be ousted by agreement.”
He agreed, however that “…having regard to the parties’ devout religious beliefs and wish to resolve their dispute through the rabbinical court, and acknowledging that it always in the interests of parties to try to resolve disputes by agreement wherever possible, including disputes concerning the future of children and ancillary relief of the breakdown of a marriage [financial settlement following divorce], I indicated that the court would in principle be willing to endorse a process of non-binding arbitration.”
The Beth Din eventually published its full ruling in September 2011, setting out details of the agreement, but further negotiations followed and a full settlement was not reached until spring last year.
The former now couple now sought legal approval of the arbitration agreement. The mother was keen to ensure that the father completed the divorce process by issuing a ‘get’ (traditional Jewish divorce document) and was unwilling to agree to the provisions unless he did so. But the father, in turn, was unwilling to issue a get unless he was confident that the terms of the arbitration would be legally approved and made a binding court order.
A solution was proposed, and Mr Justice Baker agreed to a special hearing in which he would consider the terms of the arbitration and indicate his willingness to make a court order. Once this had taken place, the couple then underwent the get ceremony and the judge made the legal order at the end of the same day.
Amongst the legal principles set out in Mr Justice Baker’s ruling, he includes the paramount importance of children’s welfare. Appropriate respect for religious belief and tradition cannot override the children’s welfare principle.
Photo by Jeff Belmonte via Wikipedia under a Creative Commons licence