Teertha Gupta QC considers new developments in out-of-court dispute resolution in children matters
Unlike some of my Creative Divorce colleagues, I practise exclusively in children’s matters – both domestic and international cases. I also sit as a part-time judge. We children lawyers have watched with interest as arbitration in divorce finance cases has taken its place in the non-court dispute resolution landscape. There has been an interesting debate, which is still ongoing, about whether it should be possible to achieve a binding resolution about children’s arrangements without involving the court. However, I believe that there needs to be a framework for parents who can’t agree between themselves what is in their children’s best interests to have access to a procedure that is more flexible, yet still as final, as using the court. That is where early neutral evaluation (‘ENE’) – also known as ‘private judging’ – is starting to come in.
In an ENE process, the parents agree to instruct a highly-experienced lawyer, often a QC or retired judge, to consider each side’s point of view and any independent evidence, and state his or her view (‘evaluation’) of the likely decision a court might make. Similarly to arbitration in a financial matter, the process for getting to the evaluation can be flexible, and it is possible for the parents and their lawyers to devise the procedure that works for them. It is likely that most evaluations will follow an equivalent process to that which lawyers are used to when addressing children’s issues in court. However, unlike in court it is possible to fix hearings and other dates for the convenience of the family involved, enabling a speedier resolution of matters which also may help keep costs down, and to keep matters entirely confidential.
To make the evaluation binding, the evaluator’s decision must be converted into a consent order. Of course, it is essential that the parents have already agreed that they will accept to be legally bound by the decision of the evaluator, whatever that is. There is no route for appeal from the decision of an evaluator if one side disagrees with it, although it is likely that there would be if the process were found to be flawed. We expect that a court will uphold an evaluator’s decision if it follows a recognised process where the objective is to achieve a fair result from an impartial expert. However, the court will have to consider the details of any consent order to ensure that it is in the best interests of the children involved before approving the decision made.
The first binding ENE was completed in July 2014, and involved two QCs presenting evidence on behalf of the parents involved and a retired judge as the evaluator. There were a number of different questions to be resolved for these parents, who had initially issued proceedings in court. The court agreed to appoint an evaluator as a single joint expert within the context of those proceedings, and to record on the face of a court directions order that the parents agreed that the evaluator’s decision would be final and binding upon them. It resulted in a consent order, which was approved by the court and now takes effect as any other court order would.
It is likely that ENE will become more popular and accepted in the years to come. I for one welcome this new development that sees more families having the ability to resolve their children’s arrangements without recourse to the formal court system and I look forward to its growth as a good thing for both parents and children.