Mediation in the application of the 1980 Convention Regional Conference on the 1980 Hague Convention on the Civil Aspects of International Child Abduction Belgrade, Serbia 3-4 February 2011 Philippe Lortie, First Secretary Hague Conference on Private International Law

Hague Conference on Private International Law | Conférence de La Haye de droit international privé HAGUE CHILD ABDUCTION CONVENTION PROMOTION OF AMICABLE AGREEMENTS Amicable Agreements – Practical relevance Increasing number of voluntary agreement based returns among the applications that ended with the child(ren)’s return when comparing the 1999 and 2003 figures

Hague Conference on Private International Law | Conférence de La Haye de droit international privé MEDIATION IN CHILD ABDUCTION CASES PRELIMINARY CONSIDERATIONS Advantages, limits, risks and safeguards  All appropriate steps should be taken to encourage the parties to a cross-border family dispute concerning children to find an agreed solution to their dispute.  Safeguards and guarantees should be put in place to prevent engagement in mediation from resulting in any disadvantage for either of the parties.

Hague Conference on Private International Law | Conférence de La Haye de droit international privé ESTABLISHMENT OF MEDIATION STRUCTURES GOOD PRACTICES A. Central Contact Point  Provide information (in official language & either English or French) About available family mediation services including, list of mediators/organisations; costs; mediation models used etc. To assist with locating the other parent / the child On where to obtain advice on family law and legal procedures On how to give the mediated agreement binding effect On the enforcement of the mediated agreement About support to ensure the long-term viability of the agreement  Promote co-operation, training & exchange of best practices  Gather & make publicly available information on cases dealt with by central contact points, actions taken and outcomes Requests should be processed expeditiously

Hague Conference on Private International Law | Conférence de La Haye de droit international privé ESTABLISHMENT OF MEDIATION STRUCTURES GOOD PRACTICES B. Mediation - Characteristics of mediators – inter alia:  Suitable training in family mediation,  Knowledge/ understanding of relevant international, regional and national law  Significant experience with inter-cultural cross-border disputes  Language competency - Establishment of lists of mediator - Safeguarding the quality of mediation C. Rendering mediated agreements binding  Where needed, countries should examine the desirability of introducing regulatory or legislative provisions for the enforcement of mediated agreements

Hague Conference on Private International Law | Conférence de La Haye de droit international privé MEDIATION IN CHILD ABDUCTION CASES GOOD PRACTICES General importance of linkage with relevant legal procedures  Mediation and other means of amicable dispute resolution should be seen as a complement to legal procedures, not as a substitute.  Access to judicial proceedings should not be restricted.  Mediation in international family disputes needs to take account of relevant national and international laws, to prepare the ground for a mediation agreement that is compatible with the relevant laws.  Legal procedures should be available to give legal effect to the mediated agreement.

Hague Conference on Private International Law | Conférence de La Haye de droit international privé MEDIATION IN CHILD ABDUCTION CASES GOOD PRACTICES Challenges using mediation in international child abduction cases  Timeframes / Expeditious procedures  Close co-operation with administrative / judicial authorities  More than one legal system involved; enforceability of the agreement in all / both jurisdictions concerned  Different cultural and religious backgrounds  Language difficulties  Distance  Visa and immigration issues  Criminal proceedings against the taking parent

Hague Conference on Private International Law | Conférence de La Haye de droit international privé MEDIATION IN CHILD ABDUCTION CASES GOOD PRACTICES Access to mediation – stage of proceedings; referral / self-referral  Role of the Central Authority  Role of the judge(s) / courts  Role of lawyers and other professionals  Role of Central Contact Points Other access to mediation issues  Initial screening – suitability of mediation in a given case  Costs of mediation  Mediation venue  The mediation contract – informed consent to mediation  Impact on / Linkage with Hague proceedings

Hague Conference on Private International Law | Conférence de La Haye de droit international privé MEDIATION IN CHILD ABDUCTION CASES GOOD PRACTICES Scope of mediation in international child abduction cases  Focus on the issues of urgency  Importance of jurisdiction and applicable law regarding parental rights and other subjects dealt with in the mediated agreement Mediation models and methods  Direct or indirect mediation  Single or co-mediation  Concept of bi-cultural, bilingual mediation

Hague Conference on Private International Law | Conférence de La Haye de droit international privé MEDIATION IN CHILD ABDUCTION CASES GOOD PRACTICES Mediation principles – international standards  Voluntary nature of mediation  Informed consent  Initial screening for suitability of mediation in the particular case  Neutrality, independence, impartiality and fairness  Confidentiality  Consideration of the interests and welfare of the child  Informed decision-making and appropriate access to legal advice  Intercultural competence  Qualification of mediators or mediation entities – minimum standards for training

Hague Conference on Private International Law | Conférence de La Haye de droit international privé MEDIATION IN CHILD ABDUCTION CASES GOOD PRACTICES Voice of the child in mediation and the presence of third parties  The child’s views should be considered in mediation in accordance with the child’s age and maturity  Whether the child should be involved directly or indirectly must be given careful consideration and depends on the circumstances of the individual case  Where the parties to the conflict agree, mediation should be open to the involvement of third parties whose presence might be of importance in finding an agreed solution

Hague Conference on Private International Law | Conférence de La Haye de droit international privé MEDIATION IN CHILD ABDUCTION CASES GOOD PRACTICES Arranging for contact between the left-behind parent and child  Safeguards / Avoiding re-abduction  Close co-operation with Central Authorities and administrative and judicial authorities Mediation and accusations of domestic violence  Screening for suitability of mediation  Treatment of domestic violence in Hague proceedings  Safeguards in mediation / Protection of the vulnerable party  Information on protective measures

Hague Conference on Private International Law | Conférence de La Haye de droit international privé MEDIATION IN CHILD ABDUCTION CASES GOOD PRACTICES Enforceability of agreed solutions in the relevant jurisdictions and issues of applicable law  Terms of the agreement to be drafted to allow the agreement to obtain legal effect and become enforceable in the relevant jurisdictions  Necessary measures to be taken to give the agreement legal effect and render it enforceable in the relevant jurisdictions  Access to information on the relevant procedures in the jurisdictions concerned should be facilitated by Central Contact Points  Co-operation among administrative / judicial authorities may be needed to help facilitate the enforceability of the agreement in all the States concerned

Hague Conference on Private International Law | Conférence de La Haye de droit international privé MEDIATION IN CHILD ABDUCTION CASES GOOD PRACTICES Enforceability of agreed solutions in the relevant jurisdictions and issues of applicable law (cont.)  Courts to make use of judicial networks and to seek the assistance of Central Authorities where appropriate  States should introduce, where necessary, mechanisms to facilitate procedures for rendering mediated agreements enforceable  Issues of jurisdiction and applicable law need to be taken into consideration when drawing up the mediated agreement

Questions Permanent Bureau Hague Conference on Private International Law Scheveningseweg KT La Haye Pays-Bas Tel: +31 (70) or Fax: +31 (70) Website: