G v G
| Jurisdiction | England & Wales |
| Neutral Citation | [2022] EWFC 151 |
| Court | Family Court |
2022 Nov 9; Dec 7
Children - Practice - Arbitration - Arbitration determination made in relation to private law children’s dispute - Court subsequently considering whether to make order in terms of determination - Proper approach to be followed -
Where an arbitration determination has been made in relation to a private law children’s dispute, the court will not make an order in the terms of the determination if it considers that the determination was wrong. When invited to make such an order, the court has a duty to have in mind the welfare checklist in section 1(3) of the Children Act 1989F1 and to ensure that the order is compatible with the principle set out in section 1(1) that the child’s welfare is the paramount consideration. If neither party challenges the determination, it is highly likely (albeit not inevitable) that the court will make the order sought. But the parties cannot oust the jurisdiction of the court and, whether the order sought is agreed or opposed by one or other party after the arbitration determination, the court’s overarching duty to consider whether the order is consistent with the bests interests of the children remains the same. The mere fact that the parties have submitted to an arbitration does not prevent the court from scrutinising the subsequent order and, if appropriate, refusing to endorse some or all of its provisions. Where there is a challenge to the determination, the court should first conduct a triage exercise on paper to determine whether the challenge has a real prospect of success. If that gateway test is passed, the application will proceed to a full inter partes hearing for a review hearing; if not, the order incorporating the arbitration determination will be made. Thus, the test to be applied and the procedure to be followed by the court is the same as it would be if the court were considering whether to make an order in the terms of an arbitration award made in relation to a financial remedies dispute (post, paras 13–15, 25).
A party aggrieved by an order made following the triage exercise is entitled to apply under FPR r 4.1(6)F2 to set aside the order, but will have to show that the circumstances are exceptional. Alternatively, such a party has a right of appeal against the order under FPR Pt 30. A party dissatisfied with an order made following a full inter partes hearing also has a right of appeal under FPR Pt 30. An appeal against an order made following the triage exercise or following an inter partes hearing must go through the usual appellate procedure, including the filter stage of permission to appeal. It may be that the approach to be taken by the appellate court will be informed by the second appeals test at CPR r 52.7 (post, paras 36–40).
Detailed guidance on the procedure to be followed on challenges to arbitration determinations in children’s cases (post, Appendix, paras 43–55).
The following cases are referred to in the judgment:
A v A (Practice Note)
Collier v Williams
Haley v Haley
Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen
R (Nolson) v Stevenage Borough Council
The following additional case, supplied by courtesy of counsel, was cited in argument:
B (A Child) (Residence: Biological Parent), In re
APPLICATION
On 23 March 2022 in ongoing private law proceedings the mother, M, issued a Form C100 seeking (i) permission to relocate with the two children to the London area and (ii) a defined child arrangements order. The parties agreed to attend arbitration, and accordingly the court proceedings were stayed by order made in the local family court on 11 July 2022. On 12 August 2022 Andrew Norton QC, the appointed arbitrator, delivered his determination refusing the mother’s relocation application and providing for an equal shared care arrangement.
On 5 September 2022 the local magistrates, upon hearing that the mother intended to apply to set aside the determination, allocated the matter to circuit judge level with the parties’ agreement and lifted the stay. On 8 September 2022 the mother formally applied in Form C2 for an order setting aside the arbitral determination, and a rehearing. The father, F, opposed the application. On 26 September 2022 the circuit judge further allocated the matter to High Court level, noting that there was no direct authority on the legal test and/or procedure to be applied when a challenge was brought against an arbitration determination relating to a children’s dispute.
The hearing was held in private and the judgment, given in private, is reported by leave of the judge on the basis that the anonymity of the children and members of their family be strictly preserved.
The facts are stated in the judgment, post, paras 7–12.
Hannah Markham KC and Christopher Hames KC (instructed by
Gemma Borkowski (instructed by
The court took time for consideration.
7 December 2022. PEEL J handed down the following judgment.
Introduction1 In the context of a financial remedies dispute, the Court of Appeal in Haley v Haley [2021] Fam 317 determined that:
(i) A challenge to an arbitration award is not confined to the limited grounds set out in the Arbitration Act 1996 which (other than a challenge to jurisdiction under section 67) are; (a) an application to set the award aside on the ground of serious irregularity (section 68); and/or (b) an appeal on a point of law (section 69).
(ii) The court has an independent, statutory duty to survey the fairness of any financial remedies order which is sought to implement the arbitral award.
(iii) Per King LJ, at para 73:
“In my view, the logical approach by which to determine whether the court should decline to make an order in the terms of the award, is by reference to the appeal procedure and the approach found in the FPR 2010. In other words, when presented with a refusal on the part of one party to agree to the conversion of an arbitral award into a consent order, the court should, at an initial stage, ‘triage’ the case with the reluctant party having to ‘show cause’ on paper why an order should not be made in the terms of the arbitral award. Such approach would be similar to the permission to appeal filter found at FPR r 30(7) where the trial has taken place under the [Matrimonial Causes Act] 1973. If the judge is of the view that there is a real prospect of the objecting party succeeding in demonstrating that the arbitral award is wrong, then the matter can be set down for a hearing. That hearing will, as with an appeal, be confined to a review and will not be a rehearing, subject to any case management directions which the judge may make in relation to updating or other evidence and subject to, as under FPR r 30.12(1)(b), the court considering that ‘it would be in the interests of justice to hold a re-hearing’.”
2 Thus, the approach to be taken by the court on a challenge to an arbitral award in financial remedies, howsoever the challenge is made, is the appellate test, i e whether the determination was “wrong” or “unjust because of a serious procedural or other irregularity” (FPR r 30.12(3)).
3 Where a party challenges the award, the court should conduct a triage exercise on paper. The test at this filter stage is the same as on an application for permission to appeal, namely whether “the court considers that the appeal would have a real prospect of success” or “there is some other compelling reason why the appeal should be heard” (FPR r 30.3(7)). If the court is satisfied that the hurdle is passed, then it should list the application for a full inter partes hearing of the challenge, akin to a hearing of an appeal against a court order which operates by way of a review of the lower court’s decision (FPR r 30.12(1)). If it is not so satisfied, then the court can “make an order in the terms of the arbitral award without more ado” (para 96 of Haley v Haley).
4 In A v A (Practice Note) [
(i) The challenge to an award should be made by issue of Form D11.
(ii) The party challenging the award should submit a skeleton argument not exceeding 20 pages, and the party seeking to uphold the award “may file a short skeleton in response”.
(iii) The papers shall be placed before a circuit judge to conduct a “triage/paper” exercise and decide whether the permission to appeal test has been passed. If it has, direction will be given for an inter partes hearing. If not, an order will be drawn in the terms of the arbitration award.
5 The issue before me is whether the same legal test set out in Haley v Haley applies to a challenge to an arbitration determination made in a dispute about children as in a challenge to an arbitration award made in a financial remedies dispute, and, if so, whether the A v A guidance applies, save as necessarily adapted for children’s cases.
6 I note that, although this particular case falls squarely within the arbitration scheme, a number of specific types of children’s disputes are expressly excluded from arbitration by rule 2.2 of the Family Law Arbitration Children Scheme Arbitration Rules 2021. These include, principally, cross-border international cases such as under the Hague Convention on the Civil Aspects of International Child Abduction (1980) although relocation applications...
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SW v IB
...for the Applicant Alex Verdan KC (instructed by Payne Hicks Beach LLP) for the Respondent PAPER TRIAGE ( pursuant to principles in G v G [2022] EWFC 151) Willans His Honour Judge Introduction 1 The parties have been seeking to resolve child arrangements for their child, JB, who was born on ......