mediation in the application of the 1980 convention regional conference on the 1980 hague convention...
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Mediation in the applicationof the 1980 Convention
Regional Conference on the 1980 Hague Conventionon the Civil Aspects of International
Child Abduction
Belgrade, Serbia
3-4 February 2011
Philippe Lortie, First SecretaryHague Conference on Private International Law
Hague Conference on Private International Law | Conférence de La Haye de droit international privé
HAGUE CHILD ABDUCTION CONVENTIONPROMOTION 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
Outcomes of Applications 2003
6%
22%
9%
20%
13%
3%
9%
15%
4%
0%
10%
20%
30%
Rejection VoluntaryReturn No
Orders
JudicialReturn byConsent
JudicialReturn Not
byConsent
JudicialRefusal
AccessAgreed orOrdered
Pending Withdraw n Other
Hague Conference on Private International Law | Conférence de La Haye de droit international privé
MEDIATION IN CHILD ABDUCTION CASESPRELIMINARY 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 STRUCTURESGOOD 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 STRUCTURESGOOD 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 CASESGOOD 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 CASESGOOD 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 CASESGOOD 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 CASESGOOD 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 CASESGOOD 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 CASESGOOD 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 CASESGOOD 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 CASESGOOD 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 CASESGOOD 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 BureauHague Conference on Private International Law
Scheveningseweg 62517 KT La HayePays-Bas
Tel: +31 (70) 363 3303 or Fax: +31 (70) 360 4867E-mail: [email protected]: http://www.hcch.net