I have received numerous telephone calls from concerned clients who have indicated that the other parent has been denying time spent with the children, relying on COVID-19 as a basis. The parents believe that nothing can be done until a court eventually hears the dispute and of course that can take quite some time in situations that would not be considered as urgent by the court. So, is there an alternative?
Children Arbitration offers a speedy and prompt solution. We can select an experienced child barrister as your private judge and it can be dealt with either as a swift paper exercise or after listening to both parents (remotely). The arbitrator can then provide a written determination quickly. The determination made by the arbitrator is legally binding in the same way as a court-ordered decision and any resulting court order can be enforced through the courts.
There are certain cases that the current Children Arbitration Scheme does not cover, such as child abduction and relocation cases where the country is not a signatory to the Hague Convention and various others (a full list is available if required). However, most of the issues that we are encountering at the moment, namely how and when parents should spend time with their children, can be dealt with by an arbitration.
Starting the process involves the parties agreeing to use arbitration to deal with either the whole of their dispute or a small part of it. Once arbitration starts you should not start court proceedings simultaneously. An arbitrator can be chosen from the Institute of Family Law Arbitrators (IFLA) and if the parents can’t agree on the identity of the arbitrator then the IFLA can nominate one on their behalf. There is then a form that needs to be signed called the ARB1CS and this sets out the full details of the parents’ dispute.
The parents must agree to the terms set out in the ARB1CS form which includes an obligation to comply with the arbitration rules, the decision made by the arbitrator, and agree that the arbitration award is final and binding.
Once an arbitrator has been selected and appointed, he or she will contact the parents to agree the terms of the arbitration, including the parameters of the dispute, the procedure they wish to adopt and fees for the arbitrator him or herself. The arbitration can normally be held at the chambers of the arbitrator or remotely.
Generally, the appeal of the arbitration process is that it can be flexible and bespoke to the parents’ needs. The parties can agree a general procedure or an alternative procedure. A general procedure is where the arbitrator will conduct a case management conference at the beginning of the process and set down a final meeting if that is needed. An alternative procedure may be one that is agreed between the parties, for example, written submissions only. Prompt determinations of the arbitrator are delivered instead of having to wait days, weeks or months for a court’s determination. The venue can be decided to suit the parents and the process is altogether more positive than going through the court process.
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The above is accurate as at 04 May 2020. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.
