Children and Divorce – The Pros and Cons of the New Arbitration Scheme for Children’s Issues

Antony Ball, Head of hlw Keeble Hawson Doncaster Family Team.

Antony Ball,
Head of hlw Keeble Hawson Doncaster
Family Team.

A new form of arbitration scheme to keep family disputes out of court has been introduced by the Institute of Family Law Arbitrators (IFLA) from 1st August.

The Family Law Arbitration Children Scheme extends the Family Arbitration Scheme, which has been in place since 2012 to offer a way of resolving the financial and property issues that can arise quicker, privately and more cost-effectively.

With a less formal and daunting setting than a court, an independent arbitrator is appointed to make a decision.  They remain in place throughout proceedings and ex-partners decide together how, where and when the process unfolds. Among choices are whether sessions are held face-to-face or in writing only – and the areas arbitration is required on.

It makes sense that this less confrontational option to a courtroom battle has now been extended to issues concerning children – usually the most emotive area of any breakup.

Although the new process is not suitable in every case, it can be applied to resolving most issues about the welfare of children and parental responsibility. These include where they live, how much time they should spend with each parent and relocation within England and Wales.

As in other family arbitration, the arbitrator bases their decision on relevant facts and evidence – taking into account the views of both parties. The decision is final and binding on both parents.

The development has been welcomed for offering couples the benefits of the broader arbitration process – resolving disputes about parental responsibility more informally, rapidly and cost-effectively than in court.

And it certainly could be speedier and more convenient than litigation. Written evidence alone can be entered if both parties agree; financial and children’s matters – which are often inextricably linked – can be dealt with together; ex-spouses can select the arbitrator together; and hearings held at times to suit both.

These are all important ingredients to minimising conflict and resolving disputes amicably – which can only be in the best interests of the children.

However, while children’s arbitration can be cheaper and less stressful than prolonged court battles, whether it is more cost-effective in the long-run remains to be seen.

For example, a court fee is likely to cost less than appointing an arbitrator. Also, if a report is needed to establish the children’s wishes, the couple would have to instruct and pay for an independent social worker under the arbitration scheme.

In most court proceedings, the Children and Family Court Advisory and Support Service (Cafcass), which looks after the interests of children in family proceedings, would prepare this without cost.

Remember, there is no ‘one-size-fits-all’ best solution and couples should always seek professional advice on which route is best for their particular circumstances.

About Antony Ball

Qualifying as a solicitor in 2000, Antony joined hlw Keeble Hawson in 2010 to lead the Doncaster family team. He is a member of Resolution, an organisation of family lawyers, and the Law Society Children Panel – and always seeks to establish the best approach for the particular needs of each client.

With a strong commitment to establishing a non-confrontational approach to settling family disputes, some 20% of his workload now involves collaborative methods.

He can be contacted at on 01302 380225 or antonyball@hlwkeeblehawson.co.uk

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