On 6 April 2020, the IFLA Children Arbitration Scheme Rules were expanded to include both temporary and permanent relocation to certain foreign countries.
What is Arbitration?
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.
Key Features of Arbitration
- The decision of the Arbitrator is ‘binding’ on the parties in the same way as a court order.
- There are extremely limited grounds of appeal against an Arbitrator’s decision.
- The parties can choose their own Arbitrator, based on their expertise (they must be registered with the IFLA). If the parties are not able to agree on the identity of an Arbitrator, the IFLA may choose for them. Once appointed, the same Arbitrator will usually continue to deal with the case until its conclusion.
- Arbitration is a voluntary joint process; it can only go ahead if both parties agree to it.
- The fees of the Arbitrator are met privately by the parties (usually equally).
- Arbitration can be done in person, by telephone or video conferencing, or in writing (usually confined to simple disputes).
- Arbitration can be arranged quickly, and the process is tailored to the parties’ needs and requirements.
- Arbitration is confidential; decisions cannot be reported.
- The law of England and Wales applies to all Arbitrations under both schemes.
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.
Change to the Arbitration Scheme Rules
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:
- Are signatories to the 1980 and 1996 Hague Convention (which determine issues in relation to parental responsibility, child abduction and the recognition and enforcement of decisions); and
- For as long as England remains bound by Brussels II bis (Council Regulation (EC) No 2201/2003) (at the time of writing, until 31 December 2020), are part of the European Union and bound by the Regulation.
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.
Why is this change important now?
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.
Gemma Garrett is an Associate at Family Law Partners, advising clients in Brighton and London. Gemma specialises in international family matters and Robert Williams is our recognised Family Law Arbitrator. If you would like to discuss any of the issues raised in this blog please contact us.