Child abduction: resolving issues through mediation

Mediation is a form of alternative dispute resolution. Parties often engage in mediation, either to prevent the need to go to court, or to resolve as many contentious issues as possible prior to going to court, in order to minimise the expense involved at a court hearing.

Mediation can also ameliorate the relationship between parties, which is often beneficial to future negotiations over contact with children and financial support moving forward.

In May I attended the LEPCA Hague Conference at the Peace Palace in The Hague from 7 to 10 May 2014. The conference was held by LEPCA (Lawyers in Europe on Parental Child Abduction) and was attended by the global leading practitioners in child abduction and child relocation law. The importance of mediation was reiterated at many of the plenary sessions of delegates.

How mediation can help with child abduction or relocation

1. Mediation is encouraged by the 1980 Hague Convention on Child Abduction which promotes the amicable resolution of family disputes. It should not, however, delay the judicial proceedings and should run parallel to court proceedings.

2. The aim of the process is to help the parties find solutions. The process involves impartial mediators. Mediation is a structured process which can take two to three days and can occur in a neutral setting for both parties.

3. Mediation is voluntary and can be initiated by the parties, their lawyers, a judge or child protection service should the parties choose to engage in mediation.

4. Mediators can be selected to reflect the culture, language and gender of the party that they are assisting. Both legal and psychosocial mediators can be instructed to mediate. Research has shown that non-lawyer mediators with communication and therapeutic skills can assist in helping the parties understand why the abduction has taken place and the separate issues faced by each parent.

5. The mediation can be structured to be child-focused and may facilitate first contact with the parent from whom the child has been removed.

6. Separate sessions can be held, allowing time for reflection, and the child’s voice can be brought into the mediation process through separate discussions.

7. Issues that can be resolved within the mediation process can include:

• The return of the child and/or future living arrangements
• Custody of the child, visitation, contact with the absent parent
• The religious, cultural or bilingual upbringing of the child
• Child maintenance, spousal maintenance, division of assets
• How any criminal proceedings within the jurisdiction of the child’s habitual residence are to be dealt with (this is often a very powerful deterrent preventing the abducting parent from returning with the child)
• Arranging contact with the absent parent throughout the mediation process.

8. A mutually acceptable agreement (or memorandum of understanding) can be drafted setting out the points agreed during the mediation process. The agreement can be made legally binding through a court order. A mirror order can then be sought, with the court of the alternative jurisdiction, to make the agreement enforceable in the jurisdiction to which the child is returned.

9. In addition, undertakings can be provided by either party. For example, it may be appropriate to ask for undertakings in the form below:

• the child and the primary carer may return to live in the former matrimonial home or be provided with reasonable alternative and safe accommodation;
• any criminal or civil proceedings already in process will be withdrawn before return – or
• no criminal or civil proceedings will be commenced upon the return of the child; and
• there will be a court hearing within a short time of the return of the child to deal with any specific issues that require immediate resolution.

It is important to note that mediation can be conducted via Skype, in order to facilitate the early contact of the parties.