President’s Guidance: Children Arbitration in The Family Court

|Guidance|Family
  1. This Guidance concerns the interface between the Family Court and Arbitrations conducted in accordance with the provisions of the Arbitration Act 1996 (AA96) where the parties to a post-relationship breakdown private law dispute relating to the welfare of a child or children in respect of whom either or both of them have parental responsibility or are otherwise concerned have agreed to submit the issues in dispute for decision by an arbitrator whose decision is to be binding upon them. It is anticipated that most arbitrations will be conducted under the IFLA Children scheme and Rules by arbitrators trained under the IFLA scheme, but this guidance applies to any decision reached by an arbitrator chosen by the parties in relation to a children issue. In this Guidance the neutral terminology of the IFLA Children Scheme Rules is adopted by which the decision of the arbitrator is described as a determination rather than an award.
  2. It is a fundamental requirement of this Guidance that the arbitrator will decide the substance of the dispute only in accordance with the law of England and Wales including the key welfare principle set out in s1 of the Children Act 1989. This Guidance does not apply to, or sanction, any arbitral process based on a different system of law nor, in particular, one where there is reason to believe that, whatever system of law is purportedly being applied, there may have been gender-based discrimination.
  3. The attention of arbitrators and the parties is also drawn to the outline guidance set out in Practice Direction 12B – Child Arrangements Programme, particularly paragraphs 1, 2.4-2.6 and 4.
  4. To avoid unnecessary complication this Guidance is primarily directed towards what may well be the most common form of children issues with which the Family Court and the parties may become concerned, namely disputes as to child arrangements including where the child lives, contact, division and allocation of holidays, education, religious upbringing, medical treatment for non-life threatening or life changing conditions and other issues as to the exercise or limitation of parental responsibility of either of the parties.

You can see below the full President’s Guidance and the Orders referred to in the guidance under section F: Arbitration-specific standard court orders, para 33.