Nick Marston is a qualified Arbitrator in children cases and a few weeks ago he conducted an Arbitration in a case concerning permission to permanently remove four children from the jurisdiction.
Arbitrations involving issues concerning children are not usual in Bristol so he thought it might be interesting to set out some of his impressions after conducting this one.
The applicant was the mother and the respondent was the father. I am not going to say any more about the facts of the case save that both parties had cases with strengths and weaknesses and it was understandable that they could not agree, and that some form of adjudication after a contested hearing was going to be necessary. It was a case with very big consequences to the parties whatever the outcome, and the children (who were all over 10 years old) were being particularly stressed and needed a speedy resolution.
The parties had applied to the court at the start of the year and the case had had several hearings, never with the same judge. The parties had commissioned an independent social worker to report on the wishes and feelings of the children because the CAFCASS timetable for such a report had involved serious delay. The report was lodged and the case was set down for a two-day hearing before a Circuit Judge in late September. Then, just a week before that hearing, the case was taken out due to lack of judicial availability and the parties were offered a hearing in late November. If this was not acceptable the judge suggested, as the Court of Appeal has recommended, that the parties consider arbitration.
I was instructed as an Arbitrator, and after a remote scoping (directions) hearing we were able to list the case for two days (the original two days that the court had vacated). I had evidence from mother, father and the ISW and submissions from the specialist family barristers the parties had each instructed. I then sent out my adjudication (decision) three working days later. This was turned into a Consent Order which was lodged with the court shortly thereafter. Had the case gone straight to arbitration without Children Act proceedings the party who succeeded would make an application under s66 of the Arbitration Act for judgement in terms of the Arbitration award.
Looking at the process, the most obvious thing about it is that it delivered an answer to the question of permission to remove within the timescale the parties wanted and the children needed. The parties had decided to go to arbitration, so the outcome – although imposed on them – was something that was the result of a process they both bought into. From the moment they engaged an Arbitrator not only was the timetable certain but so were the costs: the Arbitrator’s fee and their lawyers’ costs were split 50/50.
It also seemed to me there were other advantages. I would say that, wouldn’t I? But in short, some of these as I see them are: judicial continuity on the dates that they wanted and the environment of the hearing – by that I mean three rooms in well-equipped Chambers, one room for the hearing and a conference room for each party which was theirs for the two days and which, if there was a need to take instructions or for further discussion, they could use at any time. There were no issues about internet access or problems with IT as there can be in some courts. Refreshments were available at breaks for all those involved. The case started at 10.30 am and finished at 4.00pm each day with no other work before me, so I and they could concentrate on the job in hand.
Although I allowed a lot of cross-examination, the case never boiled over and there were several occasions when a party conceded a point which would never (I suspect) have been agreed if the case was in court.
A case like this can never be a pleasant or happy experience for the parties, but the above factors all in different ways served to lower the temperature – allowing the parties, the lawyers and the arbitrator to concentrate on the real issues in a calm frame of mind.
Arbitration is not appropriate for certain categories of case, for example where there are child protection issues, but where it is appropriate it can be done swiftly and comparatively cheaply. If you have a case suitable for Arbitration there is a strong argument that that should be tried before issuing in court, rather than when there is a problem in the court process. This means that you would be able to take full advantage of the flexibility inherent in arbitration and also all of the other benefits that I have set out above.
18th October 2022
Nick Marston
Nick is a qualified arbitrator with the CIArb, and a retired Circuit Judge. Read more here.
To find out further information about our Family Arbitration service, please click here or contact our family clerks.