On 6 April 2020, family arbitration was extended to cover a dispute over the relocation of a child to another country. Previously family arbitration in respect of children disputes excluded relocation because of the international element. This important rule change will open up many matters for the benefit of family arbitration.
Arbitration is a way of resolving disputes while avoiding the time and expense – and sometimes the publicity– of court proceedings. An independent third party, the arbitrator, is appointed by the parties jointly to reach a decision on how their dispute should be dealt with. This is done after hearing both parties’ points of view and examining any evidence they may wish to provide, or the arbitrator may need. An arbitrator is selected by the parties with their lawyers and is chosen for their particular expertise in the area of the dispute
The expanded scheme now deals with disputes about:
This limit on arbitration to relocation to Hague Convention and BII countries is essentially a failsafe, allowing parents/guardians to have recourse to the international law should something go wrong with the relocation, allowing international recognition and enforcement of family court orders.
The scheme does not attempt to circumvent national laws on relocation. The scheme rules allow for various aspects instantly recognisable from court proceedings on relocation such as the option for a social worker to report on the proposed relocation and the wishes and feelings of the relevant children being relevant in some cases.
The benefits of arbitration for many families are manifold and are thrown into sharp relief when compared with the Family Court system in England and Wales. Too often one size does not fit all, and arbitration seeks to limit high legal costs expended by parents in these child relocation cases.
A relocation application to the court will result in a hearing at which both parents attend. In a few cases, permission may be given for a party not to attend but to be available by telephone. This is very much the exception rather than the rule.
With arbitration, sessions can be carried out by Skype, Zoom or other video conferencing software (or even resolved on paper) without physical attendance by all participants in the same location. The attraction of this when parties are in a heated dispute with one another and there is an international element is obvious.
The parents can also choose their own arbitrator from a list of specialist child relocation arbitrators. There is no scope to do this within the court system. A judge may have relatively limited experience of specialist areas of family work.
Court lists are getting longer. Arbitration can therefore offer more flexibility to deal with matters promptly and in a timeframe that suits the parties’ needs. Relocation applications often have a significant time factor: a new job to start, family to join and school terms to fit around. As much as the court system tries to be flexible and reactive, cases take some time to conclude, often with one parent wanting to relocate perhaps for the purposes of employment, to leave the county temporarily without the child. Arbitration therefore has a clear advantage in cases where timing is an issue.
Arbitration has been successfully used in family law disputes for several years; most commonly in relation to financial disputes but also in relation to child arrangements. It is growing in popularity, in part because court lists are becoming longer, and the time taken to deal with family disputes within the court system is extending.
At the time of writing (early April 2020) only very high priority matters are being dealt with by the Family Court while it remains severely curtailed by the COVID-19 pandemic. It is likely, therefore, that arbitration will – at least in the immediate to short term – come to the fore as an even more popular alternative to a court application and followed by a hearing before a Judge.
The increasing push for transparency and publicity within the Family Court is to be applauded. However, family matters are intensely private and not every family will be comfortable with their dispute being reported, as some are albeit in a partially or wholly anonymised form. Arbitration offers confidentiality and can only be appealed on a very narrow aspect of law.
Of course, one downside to arbitration is that it is a voluntary joint process: if one party to a dispute is not interested in using arbitration then their decision is final. The court process, on the other hand, is started by one party and the other has no choice but to engage or potentially face an order being made in their absence and potentially contrary to their wishes.
The other aspect is the fees of the arbitrator, being privately met. Most experience is that this is highly mitigated by faster conclusions, more efficient proceedings and less lawyer costs being incurred.
The International Family Law Group’s David Hodson OBE was the originator of the English family Law arbitration scheme in 2002 and involved in its creation and formation.
It is expected many will use arbitration to resolve differences when one parent wants to move abroad and take the child with him or her. For many it will be an attractive option with considerable benefits for each parent and for the child.