Wednesday, January 30, 2013

AI v MT: The court's approach to the process of arbitration

Mr Justice Baker
In AI v MT [2013] EWHC 100 (Fam) Mr Justice Baker discussed the court's approach to an arbitration carried out by rabbinical authorities.

I do not propose to go into details of the case or the arbitration, but rather deal briefly with the legal principles set out by Mr Justice Baker, as follows:

1. Insofar as the court has jurisdiction to determine issues arising out of the marriage, or concerning the welfare and upbringing of the children, that jurisdiction cannot be ousted by agreement (Hyman v Hyman [1929] AC 601).

2. Save where statute provides otherwise, when considering issues concerning the upbringing of children, it is the child's welfare that is the paramount consideration.

3. The court gives appropriate respect to the cultural practice and religious beliefs of orthodox Jews as it does to the practices of all other cultures and faiths, but that respect does not oblige the court to depart from the welfare principle.

4. It is always in the interests of parties to try to resolve disputes by agreement wherever possible, including disputes concerning the future of children and ancillary relief of the breakdown of a marriage.

In this case, Mr Justice Baker endorsed the outcome of the arbitration, which he said "was in keeping with English law whilst achieved by a process rooted in the Jewish culture to which the families belong."

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