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Courts must approve family arbitration awards except in ‘rarest of cases’

President of family division calls for streamlined process to be introduced

15 January 2014

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Sir James Munby, president of the family division, has thrown his weight behind family arbitration, saying that where parties had bound themselves to accept an award, it should be regarded as a "single magnetic factor of determinative importance".

Sir James (pictured) said where consent orders were based on decisions under the Institute of Family Law Arbitrators (IFLA) scheme or something similar, it would only be in the "rarest of cases that it will be appropriate for the judge to do other than approve the order".

Ruling in S v S [2014] EWHC 7 (Fam), the president said an arbitration award was "surely of its nature even stronger" than a pre-nuptial agreement.

Sir James went on: "Where the consent order which the judge is being asked to approve is founded on an arbitral award under the IFLA scheme or something similar (and the judge will, of course, need to check that the order does indeed give effect to the arbitral award and is workable), the judge's role will be simple.

"The judge will not need to play the detective unless something leaps off the page to indicate that something has gone so seriously wrong in the arbitral process as fundamentally to vitiate the arbitral award."

Sir James said that while judges were not a "rubber stamp", it could only be in "the rarest of cases that it will be appropriate for the judge to do other than approve the order" and, with the IFLA scheme, "it is difficult to contemplate such a case".

The president said that in the case before him there was no reason why litigants who had chosen the private process of arbitration should have their affairs exposed in a public judgment. He said he had no hesitation in approving the consent order.

Sir James said there was also no reason why the streamlined process for consent orders which were the product of collaborative law should not be available for awards under the IFLA scheme.

James Pirrie, member of Resolution's national committee and partner at Family Law in Partnership, acted for the respondent.

He said the judgment highlighted the "many advantages" of arbitration. Pirrie said the matter was resolved within eight weeks from the signing of the agreement to arbitrate to the issue of the award, anonymity was retained, "and the costs to both parties are a fraction of what they might have otherwise been".

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Marriage & Civil partnership