Pump Court Chambers

IFLA Children Scheme: Binding decisions with minimal delay

Blog 21st April 2020
Helen Brander on Financial provision for adult children in england and wales and in italy:

Following the successful launch and running of the financial remedy and property arbitration scheme set up by Institute of Family Law Arbitrators (IFLA)[1] in February 2012, in July 2016 IFLA commenced the Children Scheme.  Its aim is to provide parties with an alternative to Court, and is particularly useful when a dispute has reached the point that mediation is likely to be ineffective and where a neutral third party needs to make a decision as to what is in the child’s best interests in a particular circumstance.

Arbitration and outcomes arising from them are confidential, subject to the usual obligations that child safeguarding issues and other legal obligations may require the arbitrator or another person in the arbitration to convey information to a relevant agency.

 

Who are the arbitrators?

IFLA currently has 65 members who are able to offer arbitration under the Children Scheme.  They are all experienced family practitioners who have been trained specifically in running arbitrations under the Scheme and who have undertaken and passed a rigorous assessment.  They are experienced in helping distressed parents in crisis and will determine disputes in a careful, ethical and empathetic manner

 

How are arbitrations determined under the Scheme?

Disputes referred to the Children Scheme are determined in accordance with the provisions of the Arbitration Act 1996, the IFLA Children Scheme Rules to the extent that they exclude, replace or modify the mandatory provisions of the Act, and the agreement of the parties, to the extent that that excludes, replaces or modifies the non-mandatory provisions of the Act or the IFLA Rules.  Article 3 of the Rules cannot be excluded, replaced or modified.  Article 3 provides that all children disputes are determined only in accordance with the law of England and Wales, although the arbitrator may have regard to and admit evidence of the law of another country insofar and in the same way as a Judge exercising the jurisdiction of the High Court would do so.  In practice, this means that the arbitrator may consider the impact and effect of the law of another jurisdiction where it is an issue in the case, and may hear expert evidence about it, but will still determine the case according to the principles of the law of England and Wales, and will not apply the foreign law in the same way that another jurisdiction might apply its own interpretation of English law (Applicable Law).

 

Scope of the Children Scheme

Arbitrations under the Children Scheme can determine disputes between parents or other persons holding parental responsibility or with a sufficient interest in the child’s welfare which disputes relate to the exercise of parental responsibility or the present or future welfare of the child concerned and extends, but is not limited to, matter which could be the subject of an application to the Family Court under section 8 of the Children Act 1989.

Matters which usually fall within the High Court’s domain are not suitable for child arbitration, and in particular the following are excluded from the scheme:

  • Child abduction, summary return applications, questions of custody of the child, and applications for cross-border access;
  • Applications for permanent or temporary removal of a child from England and Wales EXCEPT where the proposed relocation is to a jurisdiction or a country which has ratified and acceded to the 1980 Hague Convention, the 1996 Hague Convention[2], and, for so long as the UK remains bound by Brussels IIA, the jurisdiction of another member of the EU to which the Regulation also applies.
  • Disputes relating to the authorization of life-changing or life-threatening medical treatment or the progress thereof;
  • Cases where any party lacks capacity under the Mental Capacity Act 2005;
  • Disputes where a person with parental responsibility is a minor;
  • Any case where any person with parental responsibility for the child is not a party to the arbitration;
  • Any case where a child has party status in existing proceedings relating to the same or similar issues, or where the child who is the subject of the proposed arbitration should, in the opinion of the arbitrator, be separately represented in the arbitration.
  • Cases in which there are serious or significant child safeguarding issues.

 

How do I start an arbitration?

Arbitration can only happen by agreement between the parties.  They must each consent to arbitrate, so consenting to someone else making a decision about their dispute for them.  The parties complete a formal agreement to arbitrate in Form ARB1CS.  This must be signed by the parties or their legal representatives on their behalf, with the completed, signed ARB1CS being submitted to IFLA.  The parties are also obliged to complete a safeguarding questionnaire and each must obtain safeguarding disclosure from Disclosure Scotland or otherwise from the English and Welsh Disclosure and Barring Service and these are also submitted.

Parties may have in mind an agreed arbitrator from the IFLA panel and can approach them directly.  If an arbitrator is approached directly, they must refer the matter to IFLA before accepting appointment.  In that case, IFLA will offer the appointment to the agreed arbitrator.  Parties can otherwise choose a shortlist of arbitrators and invite IFLA to select one on the shortlist, which IFLA will do at random from that list.  Otherwise they can ask IFLA to choose an arbitrator for them and IFLA will do so, having regard to the nature of the dispute, preferences of the parties as to qualifications and experience, expertise and / or location or other relevant circumstances.

Arbitrators can refuse appointment, in which case IFLA will, at the request of the parties, propose someone else.  If, after considering the ARB1CS, safeguarding questionnaires and representations, IFLA or the chosen arbitrator considers that the dispute is unsuitable for arbitration, the parties will be told and their reference of the matter to the scheme will be treated as withdrawn.

Once the arbitrator tells the parties that they have accepted the appointment as arbitrator, the arbitration commences.  Conflicts of interest must be disclosed, which the parties may choose to waive, save that the arbitrator cannot act as an arbitrator in a case in which they have previously been involved in a different capacity.  Parties can be represented or may use a McKenzie Friend to assist, but if the McKenzie Friend acts inappropriately or impedes the arbitration or the administration of justice, the arbitrator can direct that the McKenzie Friend can no longer assist, with reasons given in writing.

Arbitrators are empowered by the Act and the Scheme Rules to order or determine relief on both an interim and final basis to the same extent and in the same or similar form as a Judge would (injunctions, committal and jurisdiction over non-parties without their agreement is excluded).  Arbitrators can terminate proceedings if they consider it is no longer suitable for arbitration.

Parties, together with the arbitrator, can agree the procedure of the arbitration, or otherwise the arbitrator can direct the procedural method and what evidence they require to determine the case (witness statements, oral testimony, expert reports, etc).  The voice of the child in the arbitration should be heard, and often the best way to obtain that is for the arbitrator to direct that an independent social worker ascertains the wishes and feelings of the child.  They may also advise on welfare issues in the same manner that they might in court proceedings.  Where the parties cannot agree the identity of the independent social worker, the arbitrator can determine their identity.  Indeed, the arbitrator can appoint an independent social worker to report, even where the parties do not agree that one should be appointed.  The cost of the independent social worker and any other expert will be met by the parties in such proportions as the arbitrator may determine where the parties do not agree the apportionment.  That is part of the agreement of submitting to the arbitration.  Arbitrators cannot, however, meet with the subject child at any stage.

 

Concluding an arbitration

As mentioned above, the manner in which the arbitration takes place (paper directions appointments, in person directions appointments, expert and other evidence, written evidence, and hearings) are agreed between the parties and the arbitrator, or otherwise are directed by the arbitrator.  Often there is a contested final hearing, as there would be in normal court proceedings.  Parties and witnesses will give evidence.  Oral and written submissions may be made on their behalf.

The arbitrator then has to take time to consider and provide a written determination.  The determination must state the seat of the arbitration, be singed and dated by the arbitrator, and contain sufficient reasons to show why the arbitrator has reached the decisions it contains.

Once a determination has been made, it is final and binding on the parties, subject to:

  • the limited right of appeal set out in the Arbitration Act 1996 (determinations can only be challenged if it is made without jurisdiction (s.67), there has been a serious irregularity which has caused or will cause substantial injustice (s.68), or an appeal on a point of law (s.69). The parties can agree to contract out of s.69 only.  Any challenge has to be brought within 28 days of the date of determination.
  • Any changes the court may make to the outcome when the terms of the determination are embodied in a court order;
  • Any subsequent / superseding determination, or changes or subsequent order that the Family Court considers ought to be made.

In order for the determination to become an enforceable order, the parties apply to the appropriate court to have the terms of it embodied in an order.  Where the terms of a determination invite a party to give an undertaking, the determination shall not take effect unless and until that undertaking is given and accepted by an appropriate court.  If the relevant person refuses to give an undertaking, then an order may be made in its place.

 

Costs of the arbitration

Generally, the costs of arbitration are shared.  Each party pays their own legal costs, but the arbitrator’s costs, the costs of any venue hire, the costs of experts and of obtaining disclosure are usually shared.  Arbitrations can be as expensive as the parties want them to be.  Costs are often relatively low and are competitively priced.  The speed of the arbitration in comparison to court proceedings means there is limited scope for the parties to engage in expensive legal correspondence as real life encroaches upon the circumstances and interim arrangements for the child as they might do while waiting for a court hearing.  The arbitrator is empowered by the rules to refuse to deliver the determination except upon full payment of their fees and / or expenses.

 

Conclusion

Arbitration is an excellent alternative to Court where people require swift, economical and carefully considered decision-making in matters concerning the welfare of children.

 

[1] A not-for-profit organisation created by the Chartered Institute of Arbitrators (CIArb), Resolution and the Family Law Bar Association, together with the Centre for Child and Family Law Reform.

[2] The Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for Protection of Children.

This article was written by Helen Brander, if you would like any further information on Helen’s practice or have any other queries in relation to the IFLA Children Scheme and remote hearings please contact Sean Gentleman or James Collier through our switchboard 020 7353 0711 or via email.

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