The Voice of the Child in Arbitration

_MG_5336The applicable law to child arbitration is the law of England and Wales. This means that the arbitrator’s determination will be made by applying the principles of the Children Act 1989.

The Welfare Checklist

At the start of the Children Act is the Welfare Checklist – which sets out clearly the factors that a Court, and as a consequence, the arbitrator must take into account when making a decision.

The welfare checklist factors are not set out in any particular order. Different factors will have greater prominence in different cases – depending upon the facts. However, first on the list is the child’s wishes and feelings. Or more precisely;

The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

The other factors on the welfare checklist are:

(the child’s) physical, emotional and educational needs;

the likely effect on him of any change in his circumstances;

his 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 this Act in the proceedings in question.

The Arbitrator does not meet the Child

The Children Scheme Arbitration Rules are very clear that the Arbitrator will not meet with the child.

8.3 The arbitrator may not meet with the child concerned at any stage of the proceedings including any meeting with the child to discuss or explain the determination or its implementation.

This is in contrast to mediation. With mediation a suitably trained mediator may (with the agreement of both parents) meet with the child, and then (with the child’s consent) bring the child’s views into the mediation – to assist the parents to make informed decisions.

The instruction of an Independent Social Worker

The way in which the child’s voice can be heard in arbitration is through the appointment of an Independent Social Worker.Under the Arbitration Rules, the Arbitrator may decide to appoint an Independent Social Worker to assist the arbitrator in making their determination.

8.2.3 Where the parties propose the instruction as an expert of an independent social worker to ascertain the wishes and feelings of a child or otherwise to advise on welfare issues and to report, such instruction will be subject to the confirmation and approval of the arbitrator who will decide the identity of the independent social worker if the parties cannot agree.

8.2.4 The arbitrator may of his or her own motion appoint as an expert an independent social worker of appropriate expertise and standing to ascertain the wishes and feelings of a child or otherwise to advise on welfare issues and to report if the arbitrator considers that such evidence will assist in determining the issues. Such an appointment may be made irrespective of whether or not the parties agree.

The parents can themselves propose the instruction of an independent social worker. The arbitrator can choose to instruct the Independent social worker of his own motion.

This is the means through which the child’s wishes – and any other welfare checklist issues can be independently assessed.

Compare timescales with Court Proceedings

Compare this to court proceedings. When an application is made to the Court, the Court will ask Cafcass to undertake safeguarding checks on both parties. (Checks with social services and the police). The case is normally listed for an initial directions hearing/First Hearing Dispute Resolution Hearing approximately six weeks on from the application being filed.

If the case does not resolve at the First Hearing Dispute Resolution Hearing, the court can ask Cafcass to prepare a Full Welfare Report or a shorter Wishes and Feelings Report. A Welfare Report can take 12 – 14 weeks to prepare. A Wishes and Feelings Report can take 6 Weeks. If the Court does not think that there are sufficient welfare issues to require a report – then a report will not be ordered and the case will be listed for a final hearing.

After the Cafcass report is available there will be a further Directions Hearing/ Dispute Resolution Hearing, but if the court case does not resolve by agreement, the case will go onto a final hearing which could be several further weeks away.

Arbitration is not suitable in cases where there are significant risk issues – where social services are been involved or where there has been significant domestic abuse. Arbitration works well and speedily in cases where parents just can’t agree.

If it is decided that to have a report from an Independent Social Worker is going to be of assistance – this can be obtained quickly – perhaps even a couple of weeks. The case can still be ready for final determination in weeks rather than months (as would be the case in nonurgent court proceedings).

However, many cases are decided in the family court and in mediation without the child’s voice being heard. It is also the case that the court can be more reluctant to order further reports from Cafcass when there are repeat applications by the parents to vary Child Arrangements Orders.

For the types of cases that will be dealt with an arbitration the ability to instruct an Independent Social Worker to prepare a report is a tool that can assist the determination of the types of case where the child is older and they have been expressing a strong view/or perhaps different views to their parents.

The Independent Social Worker can attend the Arbitration Hearing

If an Independent Social Worker is appointed an arbitration, there is also the possibility that they will be required to attend the arbitration hearing to give evidence and to answer questions.