…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?
