HCR represents client in a landmark case involving arbitration

8th December 2022

Head of Family Law at HCR, James Grigg, has represented a client in a landmark case involving arbitration.

Arbitration has become increasingly popular, particularly during (and following) the global pandemic.  In this case, the parties were involved in arbitration relating to the arrangements for their children following the breakdown of their marriage.  In particular, the arbitrator had to decide whether the other party should be permitted to relocate with the children to a different part of the country.  Following a two day arbitration, during which the arbitrator heard evidence from both parties and an Independent Social Worker, the arbitrator delivered his judgment, known as a “determination”.  The arbitrator refused the other party’s relocation application and provided for an equal shared care arrangement for the children.

Thereafter, the other party sought to set aside (or appeal) the arbitrator’s determination.

The matter was eventually considered by a High Court Judge, Mr Justice Peel.

This case was significant legally as, prior to it, there was no known reported legal decision about the correct legal test and/or procedure to be applied where there is an application to the Court to set aside or challenge an arbitrator’s determination in children proceedings.

The decision of Mr Justice Peel in G & G [2020] EWFC 151 sets out the relevant law and procedure.  Helpfully, in an Appendix, Mr Justice Peel sets out the correct procedure to be followed where a party seeks to challenge or uphold a determination.  It sets out the relevant application, namely a C100, unless already filed, followed by a C2.  This should be filed within 21 days of the arbitrator’s determination in its final form.  It then allows for directions, to include the preparation of skeleton arguments and the steps to be taken by the “gatekeeper” when considering the application on paper.  A Judge will then conduct a “triage/paper” exercise without a hearing and will decide whether the permission to appeal test has been passed.  The Judge should give brief written reasons.

If the Judge decides that the permission to appeal test has not been passed, the Judge will make an appropriate order and the unsuccessful party is likely to be penalised in costs.  If the permission to appeal test has been passed, then directions will be given for a hearing of the application.  A draft gatekeeping order has been attached to the judgment.  Accordingly, as a result of this decision, there is now much needed clarity with regard to the legal test and/or procedure to be applied when a challenge is brought against an arbitration determination relating to a children dispute.  This case will, no doubt, be relied upon in any future cases where a party either seeks to challenge (or indeed uphold) an arbitrator’s decision.