G v G [2022] EWFC 151 sought to establish whether an arbitral award made in relation to children matters can be challenged using the appellate test from the FPR 210 as in the case of Haley v Haley [2020] EWCA Civ 1369, in which a challenge to an arbitral award made in relation to financial remedy issues following a divorce was held not limited to the grounds set out in the Arbitration Act 1996. Instead, the appellate test from FPR 2010 could be employed, which seeks to establish whether the award is “wrong” or “unjust because of a serious procedural or other irregularity”.
Does the same apply in arbitrations relating to children matters? This was the key question in G v G [2022] prior to judgment being handed down on 7th December of last year.
Background
The parties, referred to as M and F during proceedings, had two children and continued to live together in the family home. Both children attended the local school. Following the breakdown of their marriage, M made an application under the Children Act 1989 to relocate. She wished to move the children from their home in the west of England to London and thus requested permission to relocate and sought a child arrangements order.
M and F opted for arbitration. Following the two-day process, and having heard evidence from both parents along with an Independent Social Worker, the arbitrator, Andrew Norton KC, refused M’s application for relocation. An equal shared care arrangement was instead provided for.
However, when the hearing to incorporate the arbitration award into an order of the court took place, counsel for M outlined her intention to apply to set aside the award; form C2 was then issued on her behalf.
The matter was allocated to a circuit judge for directions on the application following guidance in A v A [2021] EWHC 1889. The matter was then further allocated to High Court level by the circuit judge, his reasoning for doing so being the absence of direct authority on the legal test and/or procedure to be applied when an arbitration determination relating to a children’s dispute is challenged.
The process
The matter came before Mr Justice Peel on the Urgent Applications list, with a specific hearing subsequently arranged to address two issues – namely, the applicable legal test and the applicable procedure in circumstances where there is an application to challenge or set aside an arbitral determination in children’s proceedings.
Peel J was clear that the hearing did not concern the merits of the case – but instead should provide clear legal and procedural direction on the challenge itself.
Legal principles
Peel J ruled that the same principles do indeed apply to a children’s dispute determined by arbitration as per Haley v Haley [2020], whereby a financial remedies order derives its authority from the court and has discretion whether, and on what terms, to make an order. The court may decline to convert an award into an order if it considers that the arbitration award was wrong.
The judgment specifies that both parties cannot oust the jurisdiction of the court – whether the order is agreed or opposed by either party following arbitration; the overarching duty of the court is to consider and establish that it is in the best interests of the children.
As with a financial remedies arbitration award, the test to apply is whether the children’s arbitration determination was “wrong”; in his words, “nothing more and nothing less”.
Within his judgment, Peel J referred to para 27 of Haley v Haley and a quote from King LJ:
“It is common ground that in the family context arbitration cannot oust the jurisdiction of the court.”
He concluded:
“It seems to me implicit in her comments that King LJ envisaged the same principles on challenge would apply to family cases generally, not just financial remedies cases.”
Outcome
The same principles apply to arbitration concerning welfare matters under the Children Act 1989 as to arbitrations concerning financial matters as per the Matrimonial Causes Act 1973.
As such, an arbitral award can be challenged using the appellate test from the FPR 2010 – whether the award was “wrong” or “unjust because of a serious procedural irregularity”.
Alistair Myles, solicitor and founding partner of specialist family law practice, Ribet Myles LLP.
