Jo Carr-West and Eri Horrocks discuss arbitrating relocation cases in The Review

Jo and Eri’s article was originally published in Resolution‘s The Review in the March/April 2022 Issue. 

Arbitrating relocation cases

Relocation cases are some of the most challenging cases we face as practitioners, given the binary nature of the outcome and the emotional investment the clients have in it, the discretionary nature of the law, and how each case truly does turn on its own facts. With arbitration now increasingly discussed as an alternative to the overburdened court system, its attraction for this type of litigation is clear: an agile and quick framework allows resolution more quickly than the court can allow in cases where time is often of the essence.  However, it is important to consider whether arbitration is always well-suited for use in domestic and / or international relocation cases, and what practical considerations need to be borne in mind.

Legal context 

As practitioners will recall, there was for many years a discrepancy between the approach taken by the courts when dealing with an application to permanently relocate a child within the UK, and the approach taken to applications to move a child abroad. The Court of Appeal decision in Re E [1997] EWCA Civ 3084 was understood as establishing that a primary carer would only be restricted from living where they wished within the UK in exceptional cases, whilst no such exceptionality test applied to international relocation cases. However, in Re C [2015] EWCA Civ 1305 Black LJ made clear that she was unable to find any satisfactory explanation for the different approaches in internal and external relocation cases, and that both must be determined in accordance with the child’s best interests. The law to be applied is therefore now the same for both internal and international relocation cases.

2015 also saw the Court of Appeal finally reject the notion, which had developed since Payne v Payne [2001] EWCA Civ 166, that there was in effect a presumption in favour of the applicant where the application was genuine and well-thought out. Black LJ clarified in Re F [2015] EWCA Civ 882 that the court is required to consider both parties’ proposals for the child’s arrangements, conduct a welfare assessment of each, and make a comparative evaluation to determine which would best promote the child’s welfare.

The law on permanent relocation has therefore been settled for some time: the court must determine both internal and international relocation applications solely by reference to the child’s best interests, with no presumption in favour of either parent. These cases are therefore – like all other child arrangements applications – highly discretionary.

Temporary relocation cases, where a parent seeks to take a child abroad for a holiday or other temporary purpose such as visiting family, are of course also determined in accordance with the child’s welfare, though a different range of factors is likely to be relevant to the decision.

Availability and benefits of arbitration

Since July 2016, arbitration has been available in cases concerning arrangements for children, including applications to relocate with children within the UK. In April 2020, the scope of the scheme was broadened to include international relocation cases, both permanent and temporary, where the proposed destination state has acceded to the 1980 Hague Convention on Civil Aspects of International Child Abduction.

We are all now familiar with the main benefits of arbitration, including in children cases: speed, choice of date and choice of tribunal. In our view, these benefits are particularly heightened in relocation cases.

The speed at which arbitration can be arranged makes it a good option for relocation cases where rapid decisions are often needed. In many cases, it is the relocating parent’s preference to move over the summer holidays so that the child(ren) can finish the school year and then start the new school year at their new school if permission to move is granted. In temporary relocation cases, where a parent wants to take a child on holiday, or take them to visit a sick relative or attend a family wedding, the speed at which arbitration can be arranged can be a significant benefit, rather than seeking to persuade the court to allocate an emergency hearing.

You will all be familiar with how little control we have over the listing of final hearings within the court process; even when a listing is obtained in the sought after timeframe, it can come out of the court diary at short notice due to judicial unavailability. Arbitration by contrast gives the parties control over when the ‘hearing’ takes place, and there is little risk the arbitration will be taken out of the diary at the last minute. In our experience, the uncertainty of not knowing when the listing will be, and not knowing whether the hearing actually will go ahead can be a significant stressor for clients and incur unnecessary costs, either because there is a last minute change to the court timetable or the length of time before the hearing means that other issues arise in the interim and expand the scope of the dispute between the parties. Engaging in arbitration can make a very difficult process slightly easier, more focused and cost effective.

Arbitration also enables the parties to choose a specialist tribunal to determine the relocation issue. This is particularly preferable given that permanent relocation cases have binary outcomes which often alter the trajectory of the family’s life. Some clients may have more confidence in the overall outcome and be more prepared to make peace with it when they know that a specialist – who will have had time to consider all the papers and as much time as the parties consider necessary to hear evidence – has made the decision.

The limited appeal options where something is perceived to have gone wrong is likely no longer a factor; whilst there has not yet been a reported case about how appeals work in children arbitration it seems likely that the principles set out in Haley v Haley [2020] EWCA Civ 1369  for appealing financial remedy arbitral awards would be adopted, such that the basis for challenging an arbitral award is the same as for appealing a court order.

Although the benefits of arbitration are clear, there may be some cases where it is not suitable or is not a realistic option.  Where there are child safeguarding concerns arbitration is unlikely to be appropriate; this may be an issue in temporary relocation applications where it is considered that there is an abduction risk. In other cases, the additional costs of arbitration incurred through having to pay the fees of the arbitrator and (usually) an Independent Social Worker (lSW) may be a barrier.

Arbitration also necessitates both parties agreeing to engage in the process. Where one party does not wish to arbitrate, there is nothing that can be done to compel them to do so. There may be circumstances where one party sees delay as helping their case and so rejects arbitration. It is always worth highlighting that a quick resolution of the dispute is likely to be in the child’s best interests, reducing stress and uncertainty for the child and the whole family.

Practical tips

There are a few practical tips to bear in mind when acting in a relocation case where arbitration is the chosen method of resolving the dispute.

There are different component parts to arbitration that need to be put in place; arbitration is a flexible process and there is no one way to approach it. In particular, the approach may vary depending on the stage at which arbitration is selected – whether at the outset, after another form of dispute resolution such as mediation has been attempted, or part way through court proceedings. The timescale within which a decision needs to be reached and the amount of evidence required will also be relevant.

Identify and appoint a suitable arbitrator

A significant advantage of arbitration is the ability to select the professionals who will inform and determine the case – the arbitrator and ISW – so make these decisions carefully.

There is now a variety of counsel and solicitors qualified as arbitrators. When drawing up a shortlist it is worth considering the level of seniority a particular case requires, the arbitrator’s availability, their level of experience as an arbitrator and their expertise in relocation cases as well as giving thought to a diverse and inclusive shortlist. Often one party will propose a list of suitable arbitrators and the other will select from it. If the identity of the arbitrator cannot be agreed upon, the Institute of Family Law Arbitrators (IFLA) can be asked to decide.

Identify suitable ISWs

An ISW will take on the role that a Cafcass officer would have in proceedings; they will produce a section 7 report regarding the children’s wishes and feelings, the parents’ approaches and set out their recommendations. We recommend looking into ISW availability early, as in our experience ISWs, particularly those with appropriate expertise, tend to get booked up very quickly. The date on which the arbitration can take place will in part depend on the timeframe within which the ISW can produce a report and their availability to attend to give evidence. When selecting an ISW consider their experience and familiarity with relocation cases.

In some cases, the parties may have proceeded partway through the court process and obtained a section 7 report prepared by Cafcass, before deciding to arbitrate in lieu of a final hearing. This situation is likely to arise more frequently with the increasing demands on court time resulting in cases coming out of the diary at short notice or there being a long delay before a final hearing can be listed. We have had experience of one case where the Cafcass officer was willing to attend an arbitration hearing, having cleared their attendance with their legal team. Therefore, where Cafcass have already prepare a report it is worth making enquiries with Cafcass as to whether they will attend arbitration to avoid having to instruct an ISW to prepare an additional section 7 report, which will likely create delay and increased costs.

Commencement forms

The following documents must be sent to info@ifla.org.uk to commence the arbitration process:

• ARB1CS form this form asks for the parties’ details, details about the children, a summary of the dispute, which arbitrator the parties wish to appoint, what stage any court proceedings have reached, and confirmation that the parties understand what they are agreeing to by signing the arbitration agreement. In particular, it is important that the parties appreciate that they cannot back out of arbitration if they change their mind about the process.
• Safeguarding questionnaire completed by each party. In the event that safeguarding issues arise, it is unlikely that arbitration will be suitable, although this decision ultimately rests with the arbitrator.
• DBS checks for each party (if proceedings were commenced and a Cafcass safeguarding letter prepared, this will also suffice).

We have, in the past, received confirmation emails from info@resolution.org.uk confirming receipt of the documents despite sending them to info@ifla.org.uk. Please do not worry about this as Resolution do then lodge the forms with IFLA.

The arbitration process

The procedure will be a matter for the arbitrator to determine after consultation with the parties. In most cases there will be a case management conference (equivalent to a directions hearing) at which the procedure, including the instruction of the ISW and any other experts (e.g. on foreign law, medical reports etc) will be decided.

The final meeting (as the equivalent to the final hearing is called) will often mirror the final hearing in court proceedings. It will be a matter for the arbitrator, after consulting with the parties, to decide whether the final meeting should take place remotely, in person or in a hybrid fashion. The children’s views will generally be conveyed through the section 7 report prepared by an ISW and the ISW will usually be asked to attend arbitration. Other experts may also be asked to attend arbitration if the parties wish to cross-examine them. Following the final meeting, the arbitrator will deliver their determination (as the equivalent to the judgment is called) in writing. In our experience this is usually provided within a week of the final meeting.

Consent Order

Although not strictly necessary, the arbitration determination can be formalised by way of a consent order submitted to court. It is likely to be preferable to have a formal court order for international relocation cases, whether permanent or temporary, particularly where undertakings have been given, or the removal made conditional on particular acts or the need to obtain a mirror order in the jurisdiction to which the children relocate.  Our experience suggests that this is not yet a completely smooth process but it is to be hoped that this will continue to improve over time.

Overall, our experiences of arbitrating child relocation cases have been positive, and we hope that more lawyers and families will take advantage of the expansion of the scope of arbitration to include relocation to 1980 Hague Convention states to resolve relocation disputes.