It's no secret among family law practitioners that the family court system has been hit with increasing backlogs and delays. The impact of this on the children at the heart of any dispute is likely to be very keenly felt. Data from HM Courts & Tribunals Service shows that private law children cases were taking an average of 45 weeks in the period from July to September 2022, 5 weeks longer than the same period in 2021.
As well as the obvious emotional impact this is likely to have on the children and their parents, this could have other important implications too. An extra 5 weeks of proceedings means 5 weeks more uncertainty, potential animosity and of course legal costs.
Financial and time benefits of arbitration
As practitioners, delays mean that we are increasingly seeking methods of alternative dispute resolution so as to relieve the pressure on separated families. These may include mediation, and, where practicable, arbitration. Arbitrating children proceedings can provide a much quicker, and often less stressful and cheaper route to court proceedings, for those who qualify. Although arbitrators charge a fee, this should not be seen as a deterrent: it can often be cancelled out by the fees incurred in protracted contested court proceedings.
Arbitration can be particularly helpful and cost effective in qualifying cases, i.e. those with no safeguarding issues (no risks to the parties or children involved). The speed at which arbitration can take place will depend largely on the availability of the parties and the arbitrator. Some cases may be capable of being resolved within a matter of weeks - for example, those where no welfare reports are necessary, or where the issue is discrete, such as deciding which school a child should attend.
Arbitration process
Safeguarding checks must still be completed by Cafcass. Once that has been done, and no risks have been identified, and an ARB1CS form has been completed and lodged, the case can be placed on the arbitration track.. Within 2 weeks, the arbitrator will convene a short hearing and the timetable will be decided. This is markedly quicker than the 12 weeks or so it would take the court to list the first hearing.
If a section 7 (child welfare report) is needed, an independent social worker will be instructed to complete it, often within 4 weeks. In contrast, it usually takes upwards of 12 weeks for Cafcass to do so through the court.
Following receipt of the report, a final arbitration hearing may take place as soon as 3 weeks later. In court, a second hearing might be listed 4 weeks or so after the report, with a final hearing upwards of 12 weeks after that.
Other advantages of arbitration
Another benefit of arbitration is that a significant measure of the process is collaborative, and set by agreement. The identity of the arbitrator needs to be agreed, as does the timetable and progress of the matter, as well as practical issues such as dates and venues. This requires at least a measure of accord between the parties, and hopefully leads to a reduction in acrimony between them as they make arrangements to resolve the dispute.
The process is unlikely to be hampered by unforeseen adjournments. These are increasingly happening within the family court, with lack of judicial capacity often being cited as the reason. Adjournments also are more likely to hit private law cases with no safeguarding risks, as cases of child protection or child abduction are likely to be prioritised. This may be distressing and frustrating for parents, who are waiting longer and longer for listings, and more so for their children, who often pick up on any tension. Electing to take the arbitration route means that adjournments and long delays are rarer. If a date is moved, generally it would be rescheduled far sooner than within the court arena.
Looking forward
Increasingly, as a society, we understand the importance of prioritising children's emotional welfare, seen in the rising awareness of Children's Mental Health week (6-10 February 2023), for example. With this in mind, it is vital that we find solutions for families that enable them to move on from separation quickly and amicably.
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