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SW v IB [2023] EWFC 42 – Challenge to arbitral award in children proceedings.

Posted on 16 October 2023

The parties had been engaged in proceedings in relation to their child and agreed to resolve matters by way of arbitration, with a determination being produced in December 2022. The mother objected to the determination and applied to the court. The father sought that the determination be upheld.

The matter came before HHJ Willans, who noted that a judge making any welfare order under the Children Act 1989 must be independently satisfied that it is a proper order to make with the paramount consideration being given to the child's welfare. The same principle applies where an order is sought to be approved (whether by agreement or not) after an arbitration process. The parties cannot oust the jurisdiction of the court or the obligation on the court to consider whether the order is consistent with the best interests of the child. Where the challenge was to the approval of an arbitral determination, the court would have to consider whether the determination was "wrong", nothing more or less. The concept of "wrong" was the same as that on appeal. The court should undertake a triage stage to consider whether the challenge has a real chance of access, just as it would where permission to appeal is sought.

On the facts of the case, the issues related to the point at which overnight contact between the father and child would commence and the speed of progression of the same. The mother argued that the arbitrator had been wrong to determine that contact could start sooner rather than later and progress relatively quickly. The mother also sought to rely on new evidence in respect of the negative effect of the changes on the child. HHJ Willans refused to admit the new evidence. While decisions in children matters are by their very nature dynamic, there is a very real danger in permitting parties to provide their post-determination evaluation of how the order has progressed. Such re-evaluation runs the risk of being subject to very subjective perceptions. It cannot be right for an appeal court to allow the process to become a rehearing rather than a review.

HHJ Willans was not satisfied that the application had a real prospect of success. The arbitrator provided a clear and persuasive analysis of the reasons for her determination. While she might have set the progression at a different rate, there was a band of reasonable decisions. Her decision was unsurprising.

James Rees says: As practitioners and litigants grapple with the challenges posed by the court (delays, lack of resources etc), alternative forms of dispute resolution such as arbitration have become increasingly attractive. However, as evidenced in this case, clients do not want to agree to arbitration and then to find that the other party can simply reject the views of the arbitrator and try and re-run their case via the court route, thus duplicating time, money and stress for all involved. HHJ Willans quite properly in my view has made it clear that for those parties that opt for arbitration, they shall be bound by the decision of the arbitrator unless it can be shown that the wrong decision was made. This offers far greater certainty and will no doubt make arbitration much more appealing.

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