Children Arbitration

This article was written by Melanie Kalina who is a qualified children arbitrator.

If you would like any further information on Melanie’s practice as an arbitrator, please do not hesitate to contact her on melanie.kalina@hallbrown.co.uk

Melanie’s arbitration fees are charged at her hourly rate of £350 plus VAT, excluding a free initial enquiry call from either party and a free initial meeting of up to 1 hour with the parties and their representatives. For hearings this equates to £1400 plus VAT for a half day hearing and £2800 plus VAT for each full day of time. Determinations on the papers, preparation time and determination drafting is charged at hourly rates.

What is children arbitration?

Arbitration is a way of resolving disputes outside a formal court room. The parties (usually the parents) enter into an agreement under which they appoint a suitably qualified person (an arbitrator) to adjudicate a dispute concerning children, for example where they should go to school, or how they should divide their week between their parents. They agree to be bound by the reasoned written decision of the arbitrator.

What matters can a children arbitrator determine?

Any issue between parents, or other people who have parental responsibility for a child, or a person who has a sufficient interest in the child’s welfare, can be determined at arbitration. This is usually

• Where the child/ren should live within the jurisdiction of England and Wales
• Child arrangements (i.e. contact arrangements) including sharing holiday time
• Education (i.e. where and when a child should be educated)
• Routine and non life-threatening medical treatment (e.g. vaccinations)

What matters can a children arbitrator NOT determine?

• Applications to have a child returned to this jurisdiction from another country
• Applications to remove a child from this jurisdiction, whether permanently or for a temporary period (e.g. for a holiday) to another country
• Disputes which involve the jurisdiction of a court outside of England and Wales
• Disputes concerning the authorisation or management of life-changing or life-threatening medical treatment
• Any dispute where a person under 18 years of age has parental responsibility for the child
• Any case where a party to the proposed arbitration lacks capacity under the Mental Capacity Act 2005
• Any case in which the Local Authority would be a party
• Any case where there are significant safeguarding concerns about one or more of the parties that would materially affect the arrangements for the children

Why would you choose arbitration for a children matter?

Speed

• The parties are not subject to the court timetable, which can be very slow at times.
• The parties can agree their own timetable.
• The proceedings are likely to be much quicker than court proceedings to conclusion.
• The parties can choose the location and time of the hearings to suit their schedules.

Confidentiality

• The process is protected by strict rules of confidentiality at all times. Unlike in the family court, there is no risk of a journalist attending your hearing or reporting your case. The decisions are not published.

Scope of proceedings 

• The parties are able to decide and define the scope of the proceedings and limit the matters that the arbitrator will determine. They may decide that some matters can be dealt with summarily at arbitration whereas others should be determined in court, at mediation, or in negotiations between solicitors.
• They may wish for the arbitrator to undertake a limited paper-based arbitration on a discrete issue, saving time and costs.

Costs

• The parties will pay the costs of the arbitrator’s fee and the costs of representation, plus any additional associated disbursements.
• If the parties are able to define the scope of their issues, and the dispute can be dealt with quickly, this can lead to considerable cost reductions as compared to court proceedings.

Choice of arbitrator

• Unlike in the court process, when the court determines who deals with your case, and when the magistrates or judge can change at every hearing, the parties choose their arbitrator and that arbitrator deals with the case from start to finish.

What is the process to engage in arbitration?

• Once you have agreed to arbitrate and completed some paperwork (Form ARB1CS), you will need to choose your arbitrator. Most arbitrators will be happy to have an initial meeting to discuss the parties’ needs. The list of qualified family arbitrators in England and Wales is on http://www.ifla.org.uk/
• Once you have chosen your arbitrator, they will provide you with terms for agreement
• The parties will need to undergo a DBS check for safeguarding purposes
• A timetable will be set for the case, depending on what the issues are, what evidence will be required, and how many meetings will be needed

Is the outcome of the arbitration binding?

• The arbitrator will issue a determination, i.e. a final decision, that the parties have agreed at the outset of the process will be binding on the parties
• The parties will need to submit the determination to the court in a consent order which will be approved by a Judge, usually on the papers without a hearing.