Children arbitration and safeguarding –from caution to capable, careful practice

Katharine Landells Withers

This article challenges the common assumption that children arbitration is unsuitable where safeguarding concerns arise. While acknowledging that issues such as domestic abuse require careful handling a blanket exclusion of arbitration is overly simplistic and can unnecessarily force families into lengthy and stressful court processes. Instead we propose a carefully managed risk led approach that distinguishes between genuine safeguarding barriers and manageable risk factors.

The IFLA Children Scheme places clear duties on parties and arbitrators to disclose safeguarding information throughout the process and empowers arbitrators to halt proceedings or alert authorities if risks emerge. When risks can be identified and mitigated - through protective measures bespoke arrangements and suitable support - arbitration can provide a safe efficient alternative reducing the time spent in dispute. Suitability depends on three factors: the nature of allegations the likelihood of escalation requiring external agencies and the practical manageability of safety.

The article also suggests partial arbitration for interim issues and proposes “arbitration pods” to build best practice. Ultimately with careful screening and safeguards arbitration can safely resolve many children disputes more quickly and compassionately than court proceedings.

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