G v G [2022] EWFC 151- Challenging Children Arbitrations

The case concerned an application by the mother for permission to relocate from the West Country to London and for a Child Arrangements Order. The parties agreed to attend arbitration. Following a two-day hearing, the appointed arbitrator delivered a determination on 12th August 2022 refusing the application to relocate and providing for a shared care arrangement. The mother sought to set aside the determination and hold a rehearing. The matter was transferred to the High Court and considered by Peel J.

Peel J considered that the principles in Haley v Haley [2020] EWCA Civ 1368, a case considering a financial remedies order. In this case, the Court of Appeal confirmed that a challenge to an arbitration award is not confined to the limited grounds set out in the Arbitration Act 1996 and the court has an independent, statutory duty to survey the fairness of any financial remedies order which sought to implement the arbitral award.

In respect of children arbitration, Peel J ruled that the same principles apply- “A judge being invited to make any welfare order under the Children Act 1989 must be independently satisfied that it is a proper order to make, the paramount consideration being the welfare of the child under s1(1) thereof” (paragraph 14).

The parties cannot oust the jurisdiction of the court and “Accordingly, in my judgment, as with a financial remedies arbitration award, the test to apply is whether the children's arbitration determination was "wrong", nothing more and nothing less” (paragraph 15).

Such Judgment went on to consider the procedure for challenging a children’s arbitration, including an appendix with a draft gatekeeping order.