Safeguarding and Arbitration
The framework through which arbitration in children cases takes place are the Family Law Arbitration Scheme – Arbitration Rules 2016.
These rules were prepared by experienced Children Law practitioners – Solicitors and Barristers and Judges. Careful consideration has been given to the question of safeguarding.
There is no obligation on parties choosing to arbitrate to obtain basic police checks from Disclosure and Barring Service – http://crb-online.org.uk/
In August 2016 the charge for obtaining these checks were £55 or £65 for a fast track application. These are simple to obtain. This can be done through an online application – uploading three items of ID to the website. The website says that typically the disclosure is available in between 3 – 10 working days and a certificate will be sent to the applicant by Royal Mail.
Under the Children Scheme Rules (I reproduce the relevant Article below) the arbitrator can direct that either or both party obtain enhanced police checks.
The Arbitrator is entitled to terminate an arbitration if the arbitrator no longer considers it to be suitable.
If the arbitrator has reasonable cause to believe that a child is at risk of suffering significant harm – then the arbitrator is under a positive duty to report this to Social Services.
The children scheme arbitrators are experienced practitioners. Ian Walker has 20 years experience on the Law Society Children Panel and of complex cases relating to child welfare and safety.
Safeguarding is therefore at the heart of the Children Arbitration Process.
FAMILY LAW ARBITRATION CHILDREN SCHEME
ARBITRATION RULES 2016
(1st EDITION, EFFECTIVE 18 JULY 2016)
Article 17 – Disclosure of issues relating to safeguarding and welfare
17.1.1 Prior to the formal commencement of the arbitration each party shall have a duty(a) to provide accurate information regarding safeguarding in their Form ARB1CS;
(b) to obtain their basic Police National Computer check from the Disclosure and Barring Service or Disclosure Scotland and promptly send it to the arbitrator and to every other party;
(c) if the arbitrator in his or her discretion so directs, to commission an enhanced check from either the Disclosure and Barring Service or Disclosure Scotland and promptly send the result to the arbitrator and to every other party.
17.1.2 Prior to the formal commencement of the arbitration and at every stage of the process each party shall have a continuing duty to disclose fully and completely to the arbitrator and to every other party any fact, matter or document in their knowledge, possession or control which is or appears to be relevant to the physical or emotional safety of any other party or to the safeguarding or welfare of any child the subject of the proceedings, or to a decision by the arbitrator under Art.17.2.1. Such disclosure shall include (but not be limited to) any criminal conviction, caution or involvement (concerning any child) with children’s services in respect of any party or any person with whom the child is likely to have contact.
17.2.1 If at any time prior to or during the arbitration but prior to communication of the determination to the parties the arbitrator (whether as a result of information received or by reason of behaviour on the part of either party) forms the view that there are reasonable grounds to believe that there may be a risk to the physical or emotional safety of any party or to the safeguarding or welfare of any child, it is the arbitrator’s duty to consider whether the arbitration may safely continue.
17.2.2 If in such a case the arbitrator concludes that the dispute is no longer suitable for arbitration under the Children Scheme then he or she must inform the parties in writing of that decision and of its grounds, and will terminate the proceedings (see Arts.7.3 and 15.2(b)).
17.3.1 If at any time during the arbitration but prior to communication of the determination to the parties the arbitrator becomes aware of any matters which lead him or her reasonably to apprehend that a child or any party has suffered or is likely to suffer significant harm by reason of the actual or likely future behaviour of any party, it is the arbitrator’s duty to communicate his or her concerns as soon as possible to the relevant local authority or appropriate government agency.
17.3.2 In such a case the arbitrator shall be entitled, if he or she considers it appropriate, to communicate such concerns to the relevant local authority or appropriate government agency without prior intimation to any party of an intention so to do.