…or has it, to give serious thought to whether and how
arbitration of child welfare issues might be added to the available dispute
resolution options of negotiation (both face-to-face and lawyer-led), mediation,
and the no longer so available last (as it should indeed be) by a long way resort of waiting for a court to decide?
Although parents have extensive autonomy in relation to
decision-making for their children, the state imposes limits with which few if
any would quarrel: treatment of children which is criminal, obviously, but also
when child protection issues arise, and particularly when the threshold
criteria are met and the state intervenes by way of a care or supervision
order, or most draconially by sanctioning adoption. So arbitration if at all
would only operate in the private law sphere, and then again with exceptions
such as status-related applications for parental responsibility or permission
to marry (who last came across one of those?).
Such categories apart, parents who choose to agree have
carte blanche. (And when I refer to parents I include other family members who
may be involved in decision-making, but who equally may be interested parties
in case of an inter-familial dispute.) Their agreement to agree, and what they
do agree, is unlikely to be susceptible to challenge by a third party whether
officious bystander or organ of the state.
So, if one applies the reasoning adopted by the President in
S v S (Financial Remedies: Arbitral Award) [2014] EWHC 7 (Fam), [2014] 1 FLR 1257 in relation to consent orders generally and to arbitral awards in
financial cases in particular, and extends it to what I would suggest is the
analogous situation of parents who agree in advance to be bound by a decision
in relation to their child of a trained and accredited, expert and experienced
third-party: then why should a court decline to respect their agreement and that decision? And why then should a court
be astute to unravel the decision and impose that judge's own judgment, save in
situations where the review opportunities within the Arbitration Act 1996 are
engaged or, for instance, where a high threshold is surpassed and the outcome
is manifestly not in the child's best interests?
The 'no order' principle contained in s 1(5)
of the Children Act (that a court 'shall not make …orders unless it
considers that doing so would be better for the child than making no order at
all') should be recognised as a potent pointer. There are financial
arbitral awards which for their efficacy do not need approval by a court, or to
be turned into an order which reflects the award. Even more so, it could be
argued, in the realm of child welfare decisions reached by agreement between
parents: for it must rarely be the case that they actually need a court order
to put their decision into effect. And if subsequent court intervention is not
required for agreements reached between parents directly, why should the
situation be different if what they have agreed is to be bound as between
themselves by their selected arbitrator's decision?
Plainly safeguards and restrictions would be needed. They
would include:
- a mandatory requirement for the arbitrator to
decide in accordance with English law and with the Children Act, in accordance
with the paramountcy consideration and with regard to its s 1(3)
checklist;
- the application of non-gender-discrimination
principles, both in relation to the child and to the adults;
- a clear statement of principle that an arbitrator
may have regard to but will not be bound in reaching an award by the tenets of
any religious faith or culture;
- clear selection criteria (in terms of experience
and involvement in child welfare court cases) for those wishing to seek
accreditation as child issue arbitrators;
- a regulatory scheme both for child issue
arbitrators and for the conduct of their arbitrations;
- a protocol for how the child's voice is heard by
the child issue arbitrator;
- the application of mediator-style safeguarding
prerequisites;
- how to access independent assessments: might
access to Cafcass services be thinkable?
…and I could go on …
There
is undoubtedly a whole raft of points of detail and complexity which will
require discussion and decision, all of which must take time.
But,
I would suggest, the time is not just nigh but has arrived for that process to
commence. A step in that direction is the preparation of a feasibility study on
behalf of the Forum of Family Arbitrators which is just about to commence and
which I am to coordinate. Comments, for and against, and suggestions are
invited from all sources and should please be
sent to me via email by 15 December 2014 for onward circulation
amongst the small group participating in this project, or if you prefer post on the
FamilyArbitrator
LinkedIn discussion group.
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