Where delay benefits one parent: court -v- arbitration, at last a game of two halves?

The problem with Status quo

The separation of parents can take place in haphazard and unplanned ways, leaving perhaps unexpected arrangements as children might base themselves with one parent who has until this point had a less central role in their upbringing.

Family lawyers will often give rules of thumb like “The court likes to uphold the status quo wherever possible. The court will only go against this where there is a compelling reason to do so.” Whether or not this is an accurate summary, it is the sort of nugget that parents might adopt in a high conflict win-or-lose situation.

The tactical advantages of delay
And so it is in these and myriad other situations, one parent seems to have more to gain by the passage of time before their situation is regulated by the careful assessment carried out under the Children Act 1989 to promote the child’s welfare. Delay might mean:

• The aimed for holiday week has passed
• The school deadline date has come and gone. It becomes too late to change the school (even if, properly examined that school change might have worked out well for the child)
• A child is older and perhaps more embedded in a jurisdiction. The balance has started to tip in favour of remaining rather than relocating to what would have been a better life residing abroad.
• Or just simply, the child is more used to the occasional visit rather than a proper co-parenting relationship … In fact now the rebuilding of that relationship has therefore been set back further and may take further time to restore. One parent may think that at least the evil day has been postponed.

Thus our court system might be seen to operate on a playing field that may be pitched by the accidents of separation and gain gradient as the game progresses until the applicant for change may find themselves playing up a sharp slope and into the wind and driving rain as well.

The solution on offer and why one side gets to refuse it
Ideally parents will find their way to mediation, which will almost always offer better ways forward for those who are struggling to agree arrangements for their children. But in the tougher situation, where even mediation can’t generate a conclusion, arbitration could offer the solution. An arbitration over parenting issues might work through to conclusion in a period of weeks or months whilst the court option may often take up to a year or more, at vastly greater cost for the family.

The difficulty with this apparent arbitration-panacea of course is that:

• for one party, where delay may help (or put off the evil day) the “over a year” option may sound just FINE; and
• they are protected in this choice because arbitration is an option that requires both parties’ adoption. It cannot be imposed by one party over the other, nor can the court require parties to use it … even where this would promote the interests of the children (by seeing the family out of the rain in a fraction of the time and at a fraction of the cost and with arrangements that would better suit the child.)

Tactics in parenting litigation are almost always damaging for children … (ironic, given that each parent is fighting with an authentic aspiration for what is best for their children). Strategic delays of this sort, adhering to the court model, will usually project children into a chaotic family life for a substantial period of these lives (and do so at the very point when they need to be heard and need balance, calm, kindness and mutual support between their parents as the dust from the fractures of separation settles. No wonder the damage can be profound and recovery can take so long).

As Karin Walker, leading mediator and arbitrator puts it “the problem with the uptake of arbitration is that there is almost always one side who sees the advantage of delay”. The other “dispute resolution giant” in the area is Karen Barham – she has promoted to the judiciary the ideas of robust case management and the possibility of costs orders against those who exploit delays and refuse to adopt sensible dispute resolution offerings. But locked in a “no holds barred” dispute and with the notable reluctance of courts to make costs orders, is this really a powerful enough incentive? The statistics of would suggest not – whilst there are around 120,000 private children law cases a year now taking an average of nearly 35 weeks to resolve, the number of children arbitrations in the entire period since launch in 2016 is not even in triple figures. The registered number is under 40.

A new start?
But what if that could change?

• The burdens on the court would reduce – and thus the backlogs for the cases that have to use court would reduce too
• Parents would be compelled to adopt a process that would resolve cases quicker and cheaper and with far more focused levels of “judicial” energy. (The burdens on the judges dealing with overstuffed court lists are well known; arbitrators fix the time for the case that the case demands).
• But most importantly children would have arrangements that are objectively the best that can be made for them – and at a far earlier stage in their lives and before the damage of the period of unregulated chaos has really taken hold.

Hannah Markham QC suggests a way ahead:

• “In earlier years, for example, a parent seeking leave to relocate would need, during the period running up to their hearing, to show their total commitment to the promotion of the relationship with the other parent. How else could the court be confident that, if they were given leave to relocate with the child, they would sufficiently protect and promote the relationship with the left behind parent.
• “This is an analogy that courts may now start to adopt with reference to their powers to promote at an early stage the away-from-court solution, encouraging parties into arbitration with all the benefits that this process offers them.
• “Faced with a refusal to arbitrate, judges may now start to question the capacity of that parent to promote the interests of their child: Why would the refusing parent not want to release the family from the harm of parental disagreement? Why would they refuse to consider alternative schemes that might better provide for the child (leaving the clock to run down until it is too late)?”

In a discretionary regime, it may be a brave litigating parent who decides to ignore a clear judicial steer such as this. They might only do so if they thought that their case was so strong that they can afford to weather judicial discomfort such as this … But then if their case is that clear, then why would they not want to see matters resolved quickly and by arbitration?

Our profound thanks to all in the Family law in Lockdown project via the 36 Group who hosted the chat that generated the blog.

James Pirrie