The arbitration of disputes about children offers significant benefits in many cases. The parties can choose a specialist practitioner to determine a dispute defined by them, through a process tailored to them, swiftly and confidentially. The route has particular attraction in cases where time is of the essence such as disputes over schooling and internal relocation.
An arbitration usually proceeds in a similar manner to a Court hearing and at the end of the arbitration, the arbitrator provides a determination. In signing their agreement to arbitrate, parties agree to apply for an order in the same terms as the determination (if and so far as the subject matter of the determination makes it necessary). An issue arises though if one party seeks to challenge the arbitral determination. Until the recent case of G v G (Arbitration: Children) [2022] EWFC 151 there was no authority dealing with the correct legal test and procedural approach in such circumstances in disputes about children.
G v G involved an application by the mother for permission to relocate from the west of England to the London area and for a defined child arrangements order. Following a two day arbitration, Andrew Norton KC (the appointed arbitrator) refused the mother’s application to relocate and provided for an equal shared care arrangement. However, the mother then applied to set aside the determination. Gemma Borkowski, instructed by James Grigg of Harrison Clark Rickerbys, represented the father.
Under the Arbitration Act 1996, a challenge to an arbitral award is confined to limited grounds, as applicable in the commercial context. In the context of financial remedies, in Haley v Haley [2020] EWCA Civ 1369, the Court of Appeal determined that a challenge to an arbitral award is not confined to the limited grounds set out in the Arbitration Act 1996, the Court has an independent statutory duty to survey the fairness of any financial remedies order sought to implement the award and that the approach to a challenge to an arbitral award should be by reference to the appellate test, with the case being triaged on paper in the first instance for a determination based on the permission to appeal filter. In A v A [2021] EWHC 1889, Mr Justice Mostyn gave guidance as to the appropriate procedure to be followed where there is a challenge to an arbitral award in financial remedy proceedings which was, in summary, that the challenge should be made by D11 with a skeleton argument in support, the other party may file a short skeleton argument in response and the papers are placed before a circuit judge to conduct a triage/paper exercise and to decide whether the permission to appeal has been passed. If it has, directions will be given for an inter partes hearing and if not, an order will be drawn in the terms of the arbitral award.
In G v G Mr Justice Peel determined that the legal test applicable to an application to set aside an arbitral determination made in a dispute about children is the same as in a challenge to an arbitration award made in a financial remedies dispute. Mr Justice Peel stated that the ratio of Haley, namely that a Judge must be independently satisfied that an order arising from an arbitration is the proper order to make, applied to children disputes. The parties cannot oust the jurisdiction of the Court. On making any order, a Judge has a duty to have in mind the welfare checklist and to ensure that the order is compatible with the paramountcy principle. The fact that the parties have submitted to arbitration does not prevent the court from scrutinising the subsequent order and, if appropriate, refusing to endorse some or all of its provisions. Therefore, Mr Justice Peel held that as with a financial remedies award, the test to apply is whether the children’s arbitration determination is wrong, nothing more and nothing less.
Mr Justice Peel went on to consider whether the decision at the triage stage was open to challenge and if so by what route. He stated that a party dissatisfied by the triage decision has a right of appeal under Part 30 which must go through the usual appellate procedure, including the filter stage of permission to appeal. However, Mr Justice Peel suggested that because such an appeal would in a sense be a second appeal, it may be that even where the triage decision has been made by a circuit judge and the appeal is to the High Court, the approach to be taken would be informed by the second appeals test applicable to appeals to the Court of Appeal at CPR 52.7 which requires the court to consider not only whether there is a ‘real prospect of success’ but also whether the appeal would ‘raise an important point of principle or practice’.
As to procedure, Mr Justice Peel stated that the procedure to be followed where one party seeks to challenge an arbitration determination in a children’s case should, in principle, be as close as possible to that provided for by Mostyn J in A v A in respect of a challenge to an arbitration award in a financial case. In both categories of case, there should be a triage stage to determine whether the challenge has a real prospect of success. If that filter is passed, the application will proceed to a full inter partes hearing but if not, an order incorporating the award or determination will be made. Mr Justice Peel appended suggested practice guidance to his judgment, together with a draft order for the gatekeeping judge. These were issued with the authority of the President. In summary, the guidance provides that an application should be made by C2 (or C100 with C2 where proceedings have not been issued) containing the grounds of challenge with a skeleton argument in support, permission to the other party should be given to file a short skeleton argument in response together with a draft order they invite the Court to make if the permission to appeal test is not passed and the matter should be listed for consideration by a circuit judge to conduct the triage/paper exercise to decide whether the permission to appeal test has been passed. If the Judge determines that the permission to appeal test has not been passed then they will make the order drawing on the draft filed by the responding party. If the circuit judge decides that the permission to appeal test has been passed, then directions will be given for the application to be heard inter partes. Where a party rejects the determination but simply refuses to cooperate in the making of a consent order implementing it and makes no application to the Court, the same process should be followed with the other party making the application to the Court for implementation with grounds in support and a draft order.
In practical terms, the decision in G v G puts the determination of an arbitrator on a very similar footing to a decision by a Judge at first instance. It means that parties can go into the arbitration of disputes about children knowing that the arbitration will not be treated by the court as a dry run for future proceedings. Parties will have the security of knowing that the arbitrator’s decision will be implemented by the Court unless it is wrong, in which event there is a fair route of challenge in parallel with an appeal. G v G provides parties with even more encouragement to arbitrate disputes about children.
The judgment in G v G is available here:
