Family Arbitration: my arbitrator has made the wrong award for our children – what should I do?

In this blog, FLiP Directors Daniel Coombes and James Pirrie consider whether you can revisit an arbitration order if you think it is wrong.

Without doubt you will need legal advice and assistance.

Those helping you will be making a beeline for a decision of one of our most senior judges Peel J, called G v G and handed down in December 2022.

It may be tempting for you to assume that you are permitted to apply to the court for a general review of the arbitrator’s determination and a reconsideration of the situation generally (because that is what you will be wanting to see). However, in our view this is not one of the options available to you. There is a much more arduous road ahead which needs careful consideration with FLiP.

Your first step will be a paper application made to a senior judge which needs to be carried out quickly.

• Yes, it is true that any judge must be independently satisfied that the arbitration decision is the proper order to make for the welfare of the children, before the order is issued to confirm the arbitral outcome.
• However, the judge will not be considering again all the evidence, nor even necessarily deciding whether they would have made the same order.
• It is much more a case of the judge considering whether, on the basis of the arguments set out in the documents; “Is there a real prospect of you being able to show that the children’s arbitration determination was plainly wrong?”

You can therefore see immediately that it is no longer a level playing field. You will need to focus on the welfare checklist (see below) and persuade the judge carrying out this gatekeeping role to say to him or herself: “Hang on a minute – this doesn’t seem right and could be plainly wrong .”

For some, this gatekeeping role undertaken by the court may erode confidence that taking a step into arbitration is the right route to take, saying to themselves: “what is the point of arbitrating if the judge has to approve the order anyway?”  However, for most parents, arbitration is likely to remain a good way forward because:

• You will appoint a trusted senior lawyer to take the decision-making role: often they will have a greater experience than the person who would otherwise be dealing with the case at court.
• The decision maker will definitely have more time and be in a position to deploy greater care in reaching their conclusion than the poor overloaded judges in our court system.
• This arbitrator will have greater capacity to deploy further investigations and take further time to weigh up the evidence.
• And they will manage a process in a timetable that is freed up from the restrictions and queues around the court.

And all of this is – again – likely to point towards the fact that stepping away from the arbitrator’s determination when it finally arrives is going to be a hard ask. If the arbitration has been run properly, the judge will know the opportunities that the arbitrator is likely to have had to have got it right: persuading a judge that the arbitrator fell short is going to be a challenging ask and likely to be restricted to situations of clear error.

A summary of the welfare checklist

The welfare checklist is a list of factors set out in section 1(3) of the Children Act 1989 (CA 1989) that a court has to consider before making, varying or discharging a contested section 8 order or making, varying or discharging a special guardianship order. The factors include:

• The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding).
• Physical, emotional and educational needs.
• The likely effect on him of any change in his circumstances.
• Age, sex, background and any characteristics of his which the court considers relevant.
• Any harm which he has suffered or is at risk of suffering.
• How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs.
• The range of powers available to the court under the CA 1989 in the proceedings in question.