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On 6 April 2020, the IFLA Children Arbitration Scheme Rules were expanded to include both temporary and permanent relocation to certain foreign countries.
It is a form of dispute resolution. The parties agree to appoint an Arbitrator – a private ‘Judge’ – to adjudicate their dispute and make a final decision. Arbitration has been available for family law disputes involving finances since March 2012 following the launch of the Institute of Family Law Arbitrators (IFLA). It was extended to family law disputes involving children in July 2016. The scheme is governed by the IFLA Arbitration rules. There are separate rules for financial matters and children matters.
If you are a parent looking to relocate and move abroad permanently with your child, or if you want to take your child on holiday abroad, you must have either the consent of the other parent or the permission of the Court/Arbitrator. Without this, you could be guilty of child abduction, which is a criminal offence.
Applications to relocate abroad with a child are very finely balanced and largely fact-specific. However, in all cases, the welfare of the child is the Court’s/Arbitrator’s paramount consideration.
When the Children Arbitration Scheme was launched in 2016, for safeguarding reasons, family disputes involving applications to remove a child from this jurisdiction, whether permanently or temporarily (e.g. for a holiday), were excluded because of the international dimension which raises issues around recognition and enforcement of decisions. However, for the first time since its inception, the scope of the scheme has now been expanded to disputes concerning both temporary and permanent relocation of children to countries which:
In cases concerning the permanent international relocation of a child, it is likely to give rise to the joint instruction of an independent social worker to assist in ascertaining the wishes and feelings of the child concerned. A very similar process is followed by the courts. The Arbitrator will also need to consider the impact that the relocation would have on the child’s contact with the other parent and anticipate any enforcement issues.
With regards to disputes over temporary removal, if the case is considered to run a real risk of abduction, it is unlikely to be suitable for Arbitration.
The Children Arbitration Scheme also covers most other issues that may arise between parents or other persons holding parental responsibility for a child, including where a child should live (including shared living arrangements), how a child should spend time with the other parent, how a child should be educated, and disputes concerning routine and non-life threatening medical treatment.
At the time of writing, the country is in lockdown due to the current crisis brought about by COVID-19. The Family Court is closing its doors to all but the most urgent of cases. Although the courts are quickly adapting to remote hearings by telephone and/or video conferencing, the reality is, many trials are being adjourned (some at extremely short notice) due to staff shortages and will not be heard for many months. Even prior to the current crisis, the family justice system was under great strain due to increased demand owing to significant legal aid cuts giving rise to more litigants in person, with ever-growing delays. The current guidance from the court is that parties should consider alternative dispute resolution.
Private Arbitration may well be the solution for many parties. It can be arranged at short notice and it can be dealt with on paper or remotely by telephone or video conferencing. Relocation cases, whilst not per se ‘urgent’ are often time-critical as they are contingent on the start of a new job or school term. This recent development could not be more opportune, serving to reinforce Arbitration as a worthy contender to the Court.