P v B (Permission to appeal an arbitral award: children) [2025] EWFC 69 (B)

In the Family Court sitting at the
[2025] EWFC 69 (B)
Central Family Court
Case Name: P v B (Permission to appeal an arbitral award: children)
PERMISSION TO APPEAL DECISION AND REASONS
GIVEN BY HER HONOUR JUDGE ROBERTSON ON 10 JANUARY 2025
REASONS
The parties
Between
PClaimantB (Permission to appeal an arbitral award: children)DefendantDate 2025-01-10
[1]The child is SP, a boy, who is 7. His father is DP, and his mother is LB. The parents are separated, and SP lives with both his parents. Some details as to the time he spends with each parent have been agreed between the parties but some have not. On 30 January 2023 the father applied to the court for a child arrangements order to decide the remaining issues about spending time, and on 20 November 2023 the mother applied to the court to change SP’s surname from P to B-P. At a hearing on 24 January 2024 the parties agreed to arbitration, and the proceedings were stayed to allow that to take place.[2]The arbitration proceeded before an arbitrator on 7 and 8 May 2024. The issues before the arbitrator were limited toa. The division of time during the school termb. The mechanism for dividing the school Christmas and summer holidays onlyc. The division of bank holiday and INSET daysd. The change of SP’s surname.[3]The arbitrator gave a written determination on 31 May 2024 resolving all those issues.[4]Following receipt of the determination the parties were unable to agree the terms of the draft order in relation to certain matters, including the division of the summer holidays. The mother referred the matter back to the arbitrator by email, along with a number of other matters which both parties wished her to look at. On 12 July 2024 the arbitrator provided a further determination by email in response. She refused to look again at the issue of the summer holidays, saying she had already determined it and had not read anything which would cause her to change her decision. She went on to say “I have decided the division of the summer holidays from 2025 until 2028 and my original determination stands. The position M now wants me to adopt was F’s position at the hearing and against which M directly and through Ms Markham KC mounted strong opposition to. I will not allow M to use the drafting process to fundamentally shift her position and argue for one that is entirely new. I have already adjudicated the issue and arrived at my determination”.

The application

[5]On 1 August 2024 the mother filed a C2 seeking to challenge the arbitral determinations of the arbitrator of 31 May and 12 July 2024 in relation to one issue only, namely the division of time in the summer holidays from 2025 onwards. I am dealing with that application today on paper and without a hearing.

The law

[6]The legal framework is agreed between the parties and by me.a. The law in relation to appealing a financial remedies arbitration award is found in Haley v Haley [2020] EWCA Civ 1369, per King LJ (para 73): “When presented with a refusal on the part of one party to agree the conversion of an arbitral award into a consent order, the court should, at an initial stage, ‘triage’ the case with the reluctant party having to ‘show cause’ on paper why an order should not be made in the terms of the arbitral award. Such an approach would be similar to the permission to appeal filter found at FPR rule 30.3(7) where the trial has taken place under the MCA 1973. If the judge is of the view that there is a real prospect of the objecting party succeeding in demonstrating that the arbitral award is wrong, then the matter can be set down for a hearing. The hearing will, as with an appeal, be confined to a review and will not be a rehearing…” subject to certain conditions.b. It flows from that that the first test a challenge to a financial remedies arbitral award must meet is whether there is a “real prospect of success” or where there is some other compelling reason why the appeal should be heard (FPR 30.3(7)).c. If that test is met, then permission can be given for a hearing at which the appellate test is whether the determination was “wrong” or “unjust because of a serious procedural or other irregularity” (FPR 30.12(3)). Those propositions as to the legal tests at each stage were supported by Peel J in G v G [2022] EWFC 151 at paragraphs 2 and 3.d. In GvG Peel J had to consider whether the same legal tests applied to a challenge to an arbitration determination made in a dispute about children. He considered Hayley v Hayley and noted that the essence of its ratio was that a financial remedies order derived its authority from the court and the court had a discretion whether, and if so in what terms, to make the order. The court in those cases was entitled to refuse to convert an arbitration award into an order if it considered that the arbitration award was wrong (para 13). Peel J carried out a review of the relevant procedural guides and practitioner texts, and concluded that the same principles did apply to a children’s dispute determined by arbitration. In coming to that view he relied partly on 8.49 (b) and (c) of the ARB1CS form which had been signed in that case by the parties to the arbitration. Those sub-paragraphs make express provision for any court embodying the award in a court order to make such changes as it may require, or to refuse to embody any part of the award in a court order.e. At paragraph 25 Peel J said in relation to financial remedies and children matters, “In both categories of case there should be a triage stage to determine whether the challenge has a real prospect of success. If that gateway test is passed, the application will proceed to a full inter partes hearing for a review hearing. If not, the order incorporating the determination will be made”.[7]I take from this that my task here is to consider the mother’s application to challenge the determination of the arbitrator and to decide, first of all whether it has a real prospect of success or whether there is any other compelling reason why the appeal should be heard, and if so, to set the matter down for a review hearing at which the question will be whether the arbitrator was wrong.[8]In the mother’s skeleton argument Counsel has drawn my attention to the conflicting authorities on the meaning of “real prospect of success”. In NLW v ARC [2012] 2FLR 129, FD, Mostyn J held that it meant it was more likely than not that the appeal would be allowed at the substantive hearing”, in other words more than a 50% chance. Moor J however held that a “real prospect of success” is one that is “realistic rather than fanciful”. I have this in mind as I consider the case. Documents[9]I have been provided with a bundle which included the arbitrator’s written determination, a copy of her email of 12 July 2024 dealing with a number of issues which the parties placed before her following the delivery of her determination on 31 May 2024, grounds of challenge, a skeleton argument on behalf of the mother from Hannah Markham KC and a skeleton argument on behalf of the father from Rhiannon Lloyd of counsel. All of these I have read. I have also been provided with the parties’ statements for the arbitration, the s7 report carried out by an ISW for the arbitration, the position statements of the parties for the arbitration and various other documents. From these I have read everything I consider to be relevant. Ground 1[10]The first ground of challenge is that when the arbitrator was asked to reconsider the issue of summer holidays the arbitrator erred procedurally by deeming the issue of summer holidays to be res judicata when she should have been willing at least to consider re-opening the issue. In support of this ground, Ms Markham argues that it has long been established that a judge has the power to re-open their judgment or order at any time until the order has been sealed. She goes on to argue that that task must be done in accordance with the overriding objective which is to deal with cases justly, having regard to any welfare issues involved.[11]She relied on Baroness Hale in Re L (Children) (Preliminary Finding: Power to Reverse) [2013] UKSC 8 to support the contention that the weight attaching to the need for finality was reduced in cases involving orders affecting the upbringing of children. She drew my attention to the Supreme Court decision in AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16to reject the notion that there had to be “exceptional circumstances” before a judgment can be revisited by a judge, or that a two-stage procedure is needed with the judge first considering whether the application should even be entertained before going on to consider the application on its merits. The Supreme Court in AIC said that the question for the judge will be whether the factors in favour of re-opening the judgment are sufficient to outweigh the finality principle, together with any other factors supporting the original order.[12]Ms Lloyd on behalf of the father does not take issue with the regime set out by Ms Markham in relation to judge’s duties, but responds by saying that the fundamental error made on behalf of the mother is to equate a judge with an arbitrator. An arbitrator’s powers and scope, she says, come from very different sources. An arbitrator is bound by the terms of the Arbitration Act, the terms of the arbitration agreement and the IFLA Children Scheme Rules. An arbitrator can only arbitrate on issues which both parties agree are to be submitted for arbitration. It is entirely different, in her argument, from being a judge. Case law which applies to judges does not necessarily apply to arbitrators and as a result there was in this case no duty on the arbitrator to consider her so-called “powers” to review her decision after the final determination had been made.[13]I agree with Ms Lloyd that a judge and an arbitrator are not the same. They are appointed in different ways and for different reasons, they operate in different spheres according to different rules and to achieve a different outcome. There is no immediate reason to suppose that case law which applies to judges as to the procedure they must follow is to be translated into a duty on arbitrators. Nor have I been taken to any case law which would support that proposition. It follows that I accept Ms Lloyd’s submission that there was no duty on the arbitrator to “make plain that she had the power to review her decision”. My view on this point is reinforced by my view on the role of agreement within arbitration which I shall come to next.[14]Ms Lloyd argues that not only was the judge not wrong, but that she would have been wrong if she had re-opened the issue of summer holidays without the father’s agreement. She makes the point that an arbitrator can only arbitrate on such matters as the parties agree to submit to her. I agree with Ms Lloyd that it is a fundamental requirement of arbitration that the parties must agree what issues are to be submitted for arbitration and which are not. There cannot be an arbitration where one party agrees to be bound by the determination on a particular issue, and the other does not so agree. It follows that the arbitrator could only re-open the issue of the summer holidays if both parties agreed.[15]Whilst the arbitrator appeared to think that both parties had so agreed (she says in her email of 12 July 2024 that “both parents wish me to depart from my determination”), that is in fact not right. It is clear from the father’s submissions on the draft order that he considered the summer holidays to be res judicata and that it was not open to the mother now to seek to change the determination. It was clear he did not wish the arbitrator to depart from her determination, and clear that he did not agree to the issue being re-considered by the arbitrator at that stage. Ms Lloyd argues, and I agree, that it was not open in those circumstances to the arbitrator to reopen an already-determined issue.[16]The question then arises whether there is any other provision or power which would allow the arbitrator to consider the matter again in the absence of agreement. Ms Lloyd for the father draws my attention to s57 of the Arbitration Act 1996. The first three sub-paragraphs of that section say this:
“57 Correction of award or additional award. (1)The parties are free to agree on the powers of the tribunal to correct an award or make an additional award. (2)If or to the extent there is no such agreement, the following provisions apply. (3)The tribunal may on its own initiative or on the application of a party— (a)correct an award so as to remove any clerical mistake or error arising from an accidental slip or omission or clarify or remove any ambiguity in the award, or (b)make an additional award in respect of any claim (including a claim for interest or costs) which was presented to the tribunal but was not dealt with in the award.” (1)The parties are free to agree on the powers of the tribunal to correct an award or make an additional award. (2)If or to the extent there is no such agreement, the following provisions apply. (3)The tribunal may on its own initiative or on the application of a party— (a)correct an award so as to remove any clerical mistake or error arising from an accidental slip or omission or clarify or remove any ambiguity in the award, or (b)make an additional award in respect of any claim (including a claim for interest or costs) which was presented to the tribunal but was not dealt with in the award.”
[17]No party argues that the summer holidays could be dealt with under s57(3)(a) since the request to reconsider the summer holidays was not based on any assertion of an accidental slip or a lack of clarity. Neither, says Ms Lloyd, can they be dealt with under s57(3)(b) because that provision allows an arbitrator to correct or add to her award only in relation to matters which had already been presented to the tribunal but which had not been dealt with. Summer holidays, says Ms Lloyd, were dealt with, and so can not be re-considered under s57(3)(b).[18]In her email of 12 July 2024 the arbitrator said “I decline the invitation to reassess the issue”. In my view she was entitled to say that for the following reasons:a. There was no duty on her that to reconsider her determination;b. There was no agreement that she should reconsider the issue;c. The requested re-consideration did not fall within the provisions of the Arbitration Act which allow amendment of the determination.[19]Section 30(1)(c) of the Arbitration Act 1996 allows the arbitral tribunal to rule on what matters have been submitted to arbitration in accordance with the arbitration agreement. It appears to me that that is what the arbitrator did when she said “I decline the invitation to reassess the issue”. She was within her statutory powers to say that.[20]For all these reasons Ground 1 has no real prospect of success. Ground 2[21]Ground 2 is that the arbitrator was wrong in her approach to the determination on summer holidays becausea. She did not include a welfare checklist analysisb. She did not balance the parents’ positions as expressed at the hearingc. No reason is given why the mother is treated differently from the father nor of the impact on SP.[22]It is necessary at this stage for me to set out the parties’ positions as they were during the arbitration. These are clearly set out in the written determination.[23]During the arbitration, the father wanted the summer holidays to be split into big blocks of 2.5 or 3 weeks each to allow for him to take SP to see his paternal family all over the world, in the Americas and Asia. He accepted in cross examination that shorter periods of time, say 9-10 days, were possible but was worried it would make the visits very rushed. He was prepared to have shorter blocks in summer 2024 and 2025 but expected the summer holidays to be simply divided in half from 2026 onwards.[24]The mother’s position during the arbitration appears to have been slightly confused. On the one hand she is recorded as being content for the father to have a long block of time in the middle of the holiday for long haul travel, and for her to have two blocks of time to enable her to have a holiday in her family’s home country as well as another destination. At that stage she sought two blocks of 10 days for herself and a block of 20 for the father (paragraph 204 of the determination).[25]However two paragraphs later it is recorded that she argued SP should spend no longer than 15 nights in one period with the father, and that she did not agree to the division of the summer into two blocks “as set out in paragraphs 205(b)-(d)”. Those paragraphs set out a proposal for the summer holidays to be simply cut in half from 2026 onwards, but they also contain a proposal for the 10:20:10 split which the mother is recorded as agreeing to in paragraph 204. What does appear to be clear is that she did not agree to splitting the holidays in half down the middle in any year.[26]The determination of the arbitrator noted that the parents had agreed the arrangements for summer 2024 (M10: F15:M10: F5). For 2025-2027 inclusive she determined that SP would be with the mother for the first and last 10 days and with father for the 20 days in between. From 2028 onwards (when SP started secondary school) the holidays would be split down the middle with the parents alternating as to who would have the first half and who the second.[27]I go back then to the gravamen of Ground 2. First, that the arbitrator did not include a welfare analysis in relation to this decision. I disagree. I find that she did. Not only did she conduct a detailed overview of all the issues in the case with specifical reference to each component of welfare checklist between paragraphs 145 and 191, but she considered welfare specifically in relation to the summer holidays in paragraphs 207 and 208. She took into account the evidence of the ISW that SP was able to spend long periods of 2.5 or 3 weeks away from each parent and that is a welfare consideration. She dealt specifically with what SP was likely to be able to “cope with” at different ages and levels of maturity, thinking about what he would be able to be told and to understand, and what means he would have to maintain contact with the other parent while he was away. These are all specifically welfare considerations and they led her to the decision that he would be able to cope with longer periods away from each parent when he was in secondary school. That formed the basis of her making separate provision for the period before summer 2028, and summer 2028 onwards. It was a decision based on a welfare analysis. I do not accept that she failed to conduct a welfare analysis in relation to this point.[28]The next suggestion is that the arbitrator did not balance the parents’ positions as expressed at the hearing. It seems to me that the key point here is in the last five words:
“as expressed at the hearing”
. At the hearing, the mother appears to have wanted some time at the start and some at the end of each summer holiday. That is the determination the arbitrator made for the years up till 2028. It is difficult to see how that fits with an assertion that she did not take the mother’s view into account. It could be argued that she did not take it into account, or at any rate agree with it, from 2028 onwards, but that is not the element which the mother complains of. The arrangements from 2028 onwards are precisely those which the mother now seeks for 2025 onwards.[29]It is further said on behalf of the mother that no reason is given for treating the mother differently. It would seem to me that the arbitrator treated the mother differently because that is what the mother asked for. At that time, the mother was arguing that the split determined by the arbitrator was in SP’s interests. I find no suggestion that the arbitrator gave the mother shorter blocks of time in the first few years because she was concerned SP could not cope with longer periods away from the father. Quite the reverse: the arbitrator quoted and relied on the evidence of the ISW who said that SP would be able to cope with extended periods of time away from each parent. What she had to balance was the parties’ agreement that the holidays should be split equally with the father’s request for a long enough period to allow for long-haul travel and for the mother to have a period at the start to go to his mother’s family abroad and at the end to go somewhere else. It appears to me that she has balanced these factors in the determination that she made for the next few years, and that her reasons for departing from that from 2028 onwards are welfare-based. For all those reasons, Ground 2 has no real prospects of success. Ground 3[30]Ground three is that the arbitrator does not say why the father should have 20 days in 2025 – 2027 and the mother only 10 in two separate blocks of time. In my view this is repetitious of Ground 2c. It was clear that the evidence of the ISW was that “there were no safeguarding or child protection reasons to divide the time in any particular way” (para 68 of the determination). At the time of the hearing the mother was asking for two 10 day periods, with the father having a longer period in the middle. That is precisely what the arbitrator provided for and it is perverse of the mother now to criticise her for not giving reasons. The division of time determined by the arbitrator was one which, at the time of the arbitration, appeared to be one that gave both parents what they wanted. In the absence of any material welfare considerations it seems to me that the arbitrator needed no further reasons than that. It is always better to reach a solution which the parties are asking for or can live with providing it is safe for the child.[31]That said, there are, in fact, reasons given by the parties as to why the arrangements should be as they are. The father wanted longer blocks to travel long-haul. He has got it. The mother wanted shorter blocks to enable her to travel to see family abroad, and then to go somewhere else. Those reasons are recorded in the judgment. The fact that they were so recorded shows that they were in the arbitrator’s mind. Although she does not specifically refer to them again in paragraph 210, nor specifically adopt them, the fact that she cites them earlier provides reason to believe that her decision is not arbitrary.[32]Ground three goes on to suggest that the arbitrator’s approach was closed-minded and punitive towards the mother in refusing to re-open the issue. This is repetitive of Ground 1, and was dealt with in paragraphs 10-20 above.[33]Ms Markham KC, on behalf of the mother, seeks to pray in aid the argument that the position put forward by the mother when asking the arbitrator to reconsider the summer holidays was not entirely new. I cannot see that that has any relevance to the matters dealt with at paragraphs 10-20 above.[34]Likewise Ms Markham complains that there is a particular unfairness arising from the arbitrator noting that both parents had tried to introduce more information which was not before her at the arbitration. I can see no logic in that assertion.[35]It is also asserted that the learned arbitrator’s rationale is not child-focussed. I have dealt with that at paragraph 27 above.[36]It is further asserted that there was no consideration of the consequences to the child and what he may make of the differences of approach, nor of the impact the decision had on the mother’s ability to book longer holidays to see her family abroad. All of this would have had more traction if the mother had not been arguing for two shorter blocks of time during the arbitration.[37]Finally, in what begins to feel like a rag-bag of assertions all under the heading Ground 3, it is said on behalf of the mother that her health will suffer if the current decision is not varied. Information about the mother’s health was before the arbitrator when she made her decision. Again, this argument would have more traction if the mother had not been arguing for two 10-day periods during the arbitration. At that time she clearly did not consider that two 10-day periods would cause her health to deteriorate. There was no need, therefore, for the arbitrator to consider specifically the mother’s health in the context of the summer holiday split.[38]Taking all that into consideration, none of the various matters raised under Ground 3 has any real prospect of success.[39]I have also considered whether there is any other compelling reason why the case should be heard. Since the judgment of Peel J in G v G the case law on this issue has become much clearer. I am invited to consider whether this case provides an opportunity to clarify the divergence in case law about the definition of a “real prospect of success” but in this case, there is in my view no real prospect of success whether the “more than 50%” test proposed by Mostyn J in NLW v ARC or the “real prospect of success” test proposed by Moor J is used. There is no need for that matter to be clarified within this appeal.[40]I cannot see any other matters of public or wider interests, or any other matter, which would make a compelling reason for the appeal to be heard. I therefore refuse permission to appeal.[41]This matter has been dealt with on the papers. In accordance with FPR 30.3(5) the applicant may request a decision to be reconsidered at an oral hearing. Any such request must be filed at the court office within 7 days after service of this order (FPR 30.3(6)). It must be served on the Respondent at the same time.[42]I am asked to award the father his costs of the appeal in the sum of £15,693.60. The decision on that must await the mother’s decision whether to seek an oral hearing in relation to this permission to appeal decision. If she does not, I will deal with the matter on paper. If she does, I will deal with it at the oral hearing. HHJ ROBERTSON 10 JANUARY 2025