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Family Law

The leading authority on all aspects of family law

01 APR 2013

Arbitration in children cases

Her Honour Nasreen Pearce

Retired Circuit Judge:

The decision of Baker J in AI v MT (Alternative Dispute Resolution)     [2013] EWHC 100 ( Fam), [2013] 2 FLR (forthcoming) in allowing the parties to refer their dispute to religious arbitration as a means of resolving all the issues between them including those concerning their children has received much publicity. It is an important case in many respects.

The use of alternative dispute resolution (ADR) is now very much part of the procedure in family proceedings. The establishment of the Institute of Family Law Arbitrators (IFLA) is now recognised as an alternative to court proceedings.

In permitting the use of religious arbitration the case of AI v MT takes  ADR a step further. The court also used its powers to decline to incorporate the arbitral award in a court order until the Jewish religious divorce known as the Get was granted by the husband.

This article examines the reasons for the court's decision against the background of the exceptional circumstances which made this unusual process possible. It also highlights the plight of women from other religious communities who suffer similar social stigma as those in this case but who have no recourse in law to relief as a result of the failure to extend the provisions of the Matrimonial Causes Act 1973, s 10A and argues the case for this discrimination to be addressed.

The full version of this article appears in the April 2013 issue of Family Law.

 

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