On the 6th April 2020 the much talked about expansion of the children arbitration scheme came into effect. This is a significant change to the now well established scheme launched in 2016. The scheme has had amendments to its rules along the way but until now, it has not received an extension of its scope. In summary, the scope of scheme has been expanded to include both temporary and permanent relocation of children to foreign jurisdictions that fall within article 2.2(c) below. This development could not be timelier, serving to reinforce arbitration as a strong and worthy contender to litigation.
Arbitration now more than ever has a significant role to play in the process and administration of family justice. The ever growing delays in the family justice system, which pre-date the current crisis brought about by Covid-19, will only be exacerbated by these national events. The family courts are adapting as quickly as possible to remote hearings but irrespective of this, very sadly many trials, (unless urgent), are currently being adjourned into the distant future due to staff shortages. Private law cases which are not perceived as urgent will be pushed to the back of the growing queue.
The ability for parties to jointly select an arbitrator who can determine cases promptly is a clear way to bypass the current challenges. The DFJ at the Central Family Court in guidance issued on the 6th April 2020, encouraged parties to
“please consider all alternative dispute resolution possibilities.” 1
Not all cases are suitable for arbitration but many private law children cases lend themselves to arbitration. The most straightforward can be dealt with on the papers without an oral hearing. However, where evidence is required this is not a bar to arbitration in the current climate. The hearing can be conducted remotely by the arbitrator using one of the skype platforms available. Directions for case management are often undertaken by way of a telephone hearing.
Arbitration is naturally flexible and the scheme enables the arbitrator and the parties to agree the manner in which the hearing will be conducted. The binding nature of arbitration is very often underpinned at the end of the process by a court order in the “same or similar terms as the determination, or the relevant part of the determination.” 2
Permanent relocation cases fall at the more complex end of children arbitration and are very likely to give rise to the instruction of an independent social workers to undertake enquiries and report on the child’s wishes and feelings.
The Family Law Arbitration Children’s Scheme, Arbitration Rules 2020, 4th Edition
Changes to the rules to provide for temporary and permanent relocation
Which countries are included in the scheme ?
The scheme covers relocation to jurisdictions which have ratified and acceded to either the Hague Convention on the Civil Aspects of International Child Abduction 1980 or the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996. Brussells II bis (Council Regulation(EC) No 2201/2003 displaces the 1996 Convention. What this means is that whilst we are members of the European Union we remain bound the reciprocal provisions for recognition of orders, enforcement and return provisions for abduction.
The provisions with regard to safeguarding in Article 17 provide a filter for suitability. Furthermore in the expanded scheme to temporary removal, if a case is considered to run a real risk of abduction it is unlikely to suitable for arbitration.
Article 2 below reminds us of the overall scope of the scheme with the amendment to article 2.2 (c).
Article 2 –
2.1 Save as provided by Art.2.2 below, the Children Scheme covers issues between parents (or other persons holding parental responsibility or with a sufficient interest in the child’s welfare) which relate to the exercise of parental responsibility or the present or future welfare of the child concerned (including the child’s upbringing, present or future living arrangements, contact and education) and extends but is not limited to matters which could be the subject of an application to the Family Court under section 8 of the Children Act 1989.
2.2 The following disputes and issues are not within the scope of the Children Scheme:-
(a) any application under the inherent jurisdiction for the return of a child to England and Wales (‘this jurisdiction’) from a country which is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (‘the 1980 Hague Convention’);
(b) any application for a child’s summary return to this or another jurisdiction under the 1980 Hague Convention;
(c) any application for permanent or temporary removal of a child from this jurisdiction except where the proposed relocation is to a jurisdiction or country which has ratified and acceded to the 1980 Hague Convention or the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children (‘the 1996 Hague Convention’) and, for so long as the United Kingdom remains bound by the provisions of the Brussels IIA Regulation, to the jurisdiction of another member of the EU to which the Regulation also applies; 3
(d) any application for the court ‘to examine the question of custody of the child’ under Art.11(7) of Council Regulation (EC) No 2201/2003 after an order of a foreign court on non-return to this jurisdiction made pursuant to Art.13 of the 1980 Hague Convention;
(e) any application for cross-border access within the scope of Art.41 of the said Council Regulation which, if a judgment, would require a court to issue an Annex III Certificate;
(f) any dispute relating to the authorisation of life-changing or life-threatening medical treatment or the progress of such treatment;
(g) any case where a party lacks capacity under the Mental Capacity Act 2005;
(h) any case where any person with parental responsibility for the child or who seeks to be a party to an arbitration under the Children Scheme is a minor; and any case where any person with parental responsibility for the child is not a party to the arbitration;
(i) any case where the child concerned has party status in existing proceedings relating to the same or similar issues, or should in the opinion of the arbitrator be separately represented in the arbitration.
Further additional provisions relevant to relocation:
13.5 Where the subject matter of the dispute includes an issue as to the permanent relocation of any child to any of the jurisdictions identified in Art.2.2(c), the arbitrator, after liaising with the parties to the arbitration, shall identify in the determination the steps necessary to give full effect to the terms of the relocation in the proposed jurisdiction including, in particular, contact with the party remaining in the jurisdiction. Such steps may include (following the appointment of an independent social worker to assist in ascertaining the wishes and feelings of the child concerned) recording the wishes and feelings of the child concerned by an appropriate finding in the determination. If a determination is made concerning a proposed relocation to which the Brussels IIA Regulation applies, the arbitrator shall attach to the determination a certificate in the form of and complying with Annexe III to the Regulation.
These provisions mirror closely the ambit of enquiries that would be undertaken by the Court in a relocation case through the Cafcass officer. Instead, in the arbitration they will be undertaken by an independent social worker jointly instructed by the parties. As in the court process, the arbitrator will also need to consider contact to the absent parent and anticipate enforcement issues.
… and finally, a change to the Disclosure Checks
17.1.1 Prior to the commencement of the arbitration (see Art.4.5) each party shall have a duty: (a) to provide accurate information regarding safeguarding and protection from harm in their Form ARB1CS and Safeguarding Questionnaire; (b) to obtain a Basic Disclosure from the Disclosure and Barring Service or from Disclosure Scotland, as appropriate, and promptly send it to the arbitrator and to every other party; or alternatively, to provide an up to date CAFCASS report or Schedule 2 letter prepared in current proceedings concerning the safeguarding and welfare of the child(ren), if applicable;
Previously safeguarding checks could only be obtained from Disclosure Scotland. This has changed and the Disclosure and Barring Service in England & Wales now permits application from private individuals. Article 17 enables checks to now be sought by either service.
1 HHJ Tolson QC on the 6th April 2016
2 Article 13.4
3 Emphasis added to identify the amended clause