Challenging a child arbitral award

The recent case of G v G [2022] EWFC 151 sought to answer one key question: can an arbitral award made in relation to children matters be challenged using the same appellate test as that used in relation to financial remedy issues following a divorce? 

The matter came before Mr Justice Peel (pictured) on the urgent applications list, having first been allocated to a circuit judge for directions on the application. Given the absence of direct authority on the legal test and/or procedure to be applied when an arbitration determination concerning a children’s dispute is challenged, the matter had been further allocated to High Court level.

Circumstances of the case

M and F, as they were referred to during proceedings, had two children together and continued to cohabit in the family home. Both children were settled and in attendance at the local school. However, following the collapse of the marriage, M made an application for relocation under the Children Act 1989. Her intention was to move the children to London, leaving behind their current home, and their father, in the west of England.

M therefore sought a child arrangement order and requested permission to relocate. F, not wishing to support her in her desire to relocate their two children to London, objected to her plans and the pair subsequently decided on arbitration as a means to reach a conclusion on the issue. However, following the arbitration, which lasted two days and heard evidence from an independent social worker alongside both M and F, her application for relocation was denied.  

Instead, the arbitrator, Andrew Norton KC, provided for an equal shared care arrangement.  

M was not satisfied with the decision and, at the hearing to incorporate the arbitration award into an order of the court, her intention to apply to set aside the award was announced. Form C2 was then issued on M’s behalf.

Reaching a solution

The case raised a conundrum: can an arbitral award made in relation to children matters be challenged using the appellate test from the Family Procedure Rules 2010 (FPR 2010) as in the case of Haley v Haley [2020] EWCA Civ 1369. In this case a challenge to an arbitral award made in relation to financial remedy issues after a divorce was ruled not limited to the grounds set out in the Arbitration Act 1996. Rather, the appellate test from FPR 2010 could be utilised, establishing whether the award can be considered to be either ‘wrong’ or ‘unjust because of a serious procedural or other irregularity’.

Does the same apply in arbitration cases relating to children matters?

Legal principles

Peel J sought to address two issues. First, the applicable legal test. Second, the applicable procedure to be used in circumstances where there is an application to challenge or set aside an arbitral determination in children’s proceedings.

However, he sought to make clear that the merits of the case were, on this occasion, of no concern. The ruling sought only to provide clear legal and procedural direction on the challenge.

The judgment  

Judgment was handed down on 7 December 2022. Peel J reached the conclusion that, as in Haley, the same principles apply to a children’s dispute determined by arbitration proceedings.

As with a financial remedies order, authority is derived from the court, which reserves discretion as to whether to make an order and on what terms. Furthermore, the court may refuse to convert an award into an order should it consider the arbitration award to be wrong.

In the ruling, Peel J declared that the duty of the court is first and foremost to consider and establish that an award is in the best interests of the children involved. To that end, both parties cannot oust the jurisdiction of the court, whether agreed or opposed following the arbitration process.

In the words of Peel J, the test to apply – as with financial remedies arbitration – is whether the determination was ‘wrong’ and, in his own words, ‘nothing more and nothing less’.

Delivering his judgment, both parties were directed to file skeleton arguments ahead of the ‘triage/paper exercise’ to be conducted by a High Court judge.

Law in practice

The ruling settled the key question at hand – the same principles do indeed apply to arbitration cases concerning welfare matters under the Children Act 1989 as to arbitration regarding financial matters as per the Matrimonial Causes Act 1989.

The appellate test from the FPR 2010 must be used where an award is challenged, establishing whether it was ‘wrong’ or ‘unjust because of a serious procedural irregularity’.

Where a child arbitral award is to be challenged, the party seeking to make the challenge must complete and file a Form C2 alongside a Form C100. The C2 should annex the grounds of challenge in the same manner as grounds of appeal would be pleaded. A skeleton argument can then be filed by the respondent, with the application then placed before a circuit judge, who will decide whether the permission to appeal test has been passed.

 

Alistair Myles is a partner at Ribet Myles, London. He acted for the appellant husband in Haley v Haley