We have this week received a letter from West London Family Court notifying us of significant delays in their administration of private law children cases. At the moment, they are working on a 4-6 week delay between receiving and responding to correspondence. This delay also includes the sending out of orders following a hearing.
Sadly, these delays are not limited to West London, but are widespread across the Court system, which is increasingly struggling to keep on top of cases in the face of funding cuts, reduction of judges and a significant increase in people representing themselves in the absence of availability of legal aid in many cases. It is not uncommon for cases to be listed for a hearing, with all the preparation done and the barrister’s brief fee incurred and then to be told at the last minute that a Judge isn’t available, or the hearing has been bumped due to an urgent care case having to take priority. This can mean significant wasted costs for our clients, through no fault of theirs or ours.
All of us who work in it regularly know that the Court system, while it can be excellent at times, is under huge pressure. So what other options are there?
There are various alternative forms of dispute resolution which people can consider, but the chances are that, if an application to Court is looking inevitable, mediation would not be a solution (and may have already been tried to no avail). If the parents have reached the point where they are not realistically going to reach agreement, even with assistance, they will need someone to make a decision for them. This is where Children Arbitration comes in as an option.
What is arbitration?
Family arbitration is a process where the parties appoint an independent Arbitrator, akin to a private judge, to hear their arguments and then make a decision which is binding upon them, just as a judge’s would be. A children arbitrator can hear all arguments relating to private children disputes, other than those which involve safeguarding concerns or international issues (such as moving to live abroad). It is therefore perfect for handling:
- With which parent a child should live, or whether the child should live with both parents and if so, in what proportions of time;
- When and how much time a child should see each parent;
- What school a child should attend;
- How the travel arrangements should work for contact (e.g. who should do how much of the driving, where should handovers take place);
- How to share the school holidays;
- Arrangements for specific special occasions, e.g. Christmas.
Arbitrators can be instructed by the parents’ solicitors, or indeed by the parents directly in appropriate cases.
Why use arbitration?
The many benefits of arbitration include speed, convenience and expert focus.
Speed: an arbitration can be concluded in a matter of weeks, rather than the months and years that the Court system can take. This is particularly important in cases where there is a looming deadline – e.g. a school application deadline, or Christmas or a holiday fast approaching with no agreement about how it is shared. You have a designated arbitrator who handles all the aspects of the case and how it is run and can therefore address immediately any problems which may otherwise delay matters for months in the Court administrative system.
Convenience: an arbitration can take place anywhere which is suitable for everyone involved. It can be at the solicitors’ offices, or in barristers’ chambers, or in meeting rooms hired for the purpose. It doesn’t necessarily even have to involve a physical “hearing”, but can be dealt with on paper or by telephone in the right cases.
Expert focus: when you appoint an arbitrator, you are choosing the person who will act as “judge” throughout your case, rather than being appointed a random judge, deputy judge or panel of lay magistrates, who may well change from hearing to hearing. The arbitrator is dedicated to your case and able to respond to emails directly, ensure that they have set aside time to prepare for your case (rather than judges who frequently don’t have time to read bundles prior to a hearing) and set aside the whole day or days (if necessary) to hear your case (where judges are frequently trying to juggle several at a time).