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Children arbitration scheme is good, but only scratches the surface

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March 28, 2024

On Monday the Institute of Family Law Arbitrators launched the Family Law Arbitration Children Scheme. Family law arbitration has been around since 2012 but until now it has only been available to deal with financial matters following the breakdown of relationships. The new scheme expands that to include sorting out private law children matters, including where children should live, how much time they should spend with each parent and relocation in England and Wales.

For the benefit of those who don’t know, arbitration is a method of resolving disputes outside of court. The parties agree to appoint an arbitrator to adjudicate the dispute, and to abide by the decision of the arbitrator. The arbitrator is specially trained and will adjudicate the dispute by reference to the law of England and Wales.

But why go to arbitration rather than the court? Well, arbitration has a number of advantages over court proceedings, including being quicker, being confidential and, usually, being cheaper. Note that the decision of the arbitrator will usually be made into a court order, which will add a little to the time and expense involved.

The Arbitration Children Scheme is to be welcomed for a number of reasons, including the following:

  1. It is likely to be considerably quicker than court proceedings. Obviously, lengthy court proceedings can be extremely harmful to the children involved, so speed of resolving the dispute is a very important factor.
  2. Arbitration is also likely to be considerably cheaper than contested court proceedings (although many people who go to arbitration will still pay for their own lawyer, in addition to the arbitrator’s fee, and any other costs of the arbitration, such as experts’ fees).
  3. Importantly, the scheme now means that all issues can be dealt with together. Arrangements for children and for finances can be inextricably linked. No longer will it be necessary to refer children issues to the court, even if the parties wish to refer financial issues to arbitration.
  4. Lastly, the scheme obviously reduces the pressure on the courts, which are currently badly over-stretched, particularly as they are having to deal with so many litigants in person since the abolition of legal aid, more of which in just a moment.

The scheme should also guarantee confidentiality, although that is not usually such an issue in children proceedings, which are normally confidential anyway.

So, children arbitration is clearly a good thing, adding another option for the resolution of disputes over arrangements for children. However, it only really scratches the surface when it comes to dealing with the problems facing the family justice system.

Children arbitration may be cheaper than contested court proceedings, but it is still only really an option for those who could afford to instruct a lawyer anyway. The big issue with private law children disputes is, of course, that since the abolition of legal aid in 2013 a huge number of parents cannot now access proper legal assistance to guide them through the law and procedure. Children arbitration does little or nothing to address that issue, as very few of those who would previously have been eligible for legal aid will be able to afford to go to arbitration.

I know that this isn’t the fault of arbitration, which was never intended to be a replacement for legal aid. However, I can’t help but think of those parents who can’t afford a lawyer looking hopefully at arbitration as a means of getting out of their predicament, only to have their hopes dashed when they find that they can’t afford arbitration either.

Removing legal aid for children matters was one of the cruellest acts of the last government, adversely affecting the lives of thousands of children. It really ought to be reinstated, or at least replaced with something that ensures that parents involved in children disputes get the assistance that they need and deserve.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. Nick Langford says:

    Do you remember, John, some years ago now, a politician describing what she would do with the family justice system if she were ever in a position to do so?

    “Ladies and Gentlemen, it is time for Action.

    “That is why in my first week in office, I will publish proposals to abolish CAFCASS and replace it with a mediation service. Court should be the last resort, not the first. The aim will be to intervene early to make sure disputes don’t have to go to court but are sorted out quickly in the best interests of the children. And child safety will remain a priority.

    “Our Country deserves a better system of family justice: one that is open, fair and accountable; a system that protects children and a system that recognises as we do, that the best parent is both parents.”

    I wonder what that wise lady is up to now?

    • JamesB says:

      Who was that please Nick? Dame Elizabeth Butler Sloss, Harriett Harmon? Theresa May perhaps. I don’t know who you mean and is too gap to fill and would be interested.

      • Paul Apreda says:

        It was Theresa May speaking in 2003! Do I win a prize? 🙂

        • JamesB says:

          Thanks Paul, appreciated, 1hp (house point) :-).

        • Nick Langford says:

          2004 Conservative Party Conference – Bournemouth. Unfortunately, mediation doesn’t seem to be working either, because it was solicitors who were referring parents to mediation and without legal aid parents are not using solicitors.

  2. Andrew says:

    “Removing legal aid for children matters was one of the cruellest acts of the last government, adversely affecting the lives of thousands of children. It really ought to be reinstated”
    Yes it should, but that’s not going to happen.
    What could and should happen first is provision to provide both parties with legal aid where one party has it, subject of course to means, and those among us who think it is oppressive for a litigant, usually a woman, to be cross-examined in person by the man (usually) she says was violent to her (or the children or both) will agree with me. Unfortunately some of them would prefer not to let him cross-examine (which might just be fair if you also said that counsel for the woman was not to cross-examine him, but it would leave the judge with an impossible job) and some regard his very presence in the courtroom as an affront and would exclude him if they could.

    • Paul Apreda says:

      Stop bleating about the ‘removal of Legal Aid’!! (OK I know you wont but I had to say it!)
      We are being very successful in getting Legal Aid for all the people we see who meet the financial test. We work with GPs to meet the evidence test under Regulation 33 (l) to have proof of a referral to a DV support service from a medical professional. Why cant YOU manage to do that as well……….?
      Is it because you enjoy bleating about ‘the removal of Legal Aid’?

      best wishes

  3. Andrew says:

    Paul – how do your clients feel about being cross-examined by the other party acting in person and given some leeway because he knows no better in a small courtroom where she can see the whites of his eyes?

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