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:
- 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.
- 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).
- 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.
- 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.