Test and Procedure for challenging arbitration awards extended into Children Act Proceedings

Hannah Budd of BloomBudd LLP, the exclusive family law member for England, has represented the applicant in the reported case of G & G [2020] EWFC 151. The judgment of Mr Justice Peel sets out the legal test and correct procedure to be adopted in cases where a party wishes to challenge an arbitral award made in relation to proceedings concerning children.

Arbitration is a form of private dispute resolution whereby the parties to a dispute appoint a suitably qualified individual as an arbitrator to determine the issues and make an award. Family law arbitration was introduced into financial disputes in 2012. This was followed by the Family Law Arbitration Children Scheme in 2016 enabling arbitrators to determine some cases concerning the arrangements for children.

Whilst the legal test and procedure for challenging awards that related to financial matters has been known for some time following the decisions in Haley v Haley and A v A [2021] EWHC 1889 there was no legal precedent as to the test to be applied and the procedure for cases concerning children.

Mr Justice Peel confirmed that the correct test to apply in such cases is whether the arbitration determination was “wrong”. In respect of procedure the judgment has appended to it suggested practice guidance for children’s cases alongside a draft order which were issues with the authority and approval of the President of the Family Division.