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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> P v B (Permission to appeal an arbitral award: children) [2025] EWFC 69 (B) (10 January 2025) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2025/69.html Cite as: [2025] EWFC 69 (B) |
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Central Family Court
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Case Name: P v B (Permission to appeal an arbitral award: children) |
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Crown Copyright ©
REASONS
The parties
a. The division of time during the school term
b. The mechanism for dividing the school Christmas and summer holidays only
c. The division of bank holiday and INSET days
d. The change of SP's surname.
The application
The law
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".
Documents
Ground 1
"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."
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.
Ground 2
a. She did not include a welfare checklist analysis
b. She did not balance the parents' positions as expressed at the hearing
c. No reason is given why the mother is treated differently from the father nor of the impact on SP.
Ground 3
HHJ ROBERTSON
10 JANUARY 2025