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The time for child-issue arbitration has come…

Date:2 DEC 2014
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Family Dispute Resolution Facilitator
…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?

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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.