Mediation in cross border cases concerning children
Mediation in children cases can be very successful as it concentrates both parents’ minds on their children and crucially what will be in their best interests. In many cases parents turn to mediation, in preference to expensive court proceedings. They strive to maintain a respectful and peaceable life for the children and parents going forward. But what about in international child relocation cases?
Child relocation mediations
In international cases concerning a change in jurisdiction, mediation is still possible. The parents’ positions may be polarised but sometimes each parent just needs to be in a more relaxed environment (away from the court room) and listen carefully to the proposals put forward by the other. What is said is ‘without prejudice’ so it cannot be referred to in any future court proceedings.
The area of international family law, whether it involves children or finance, is hugely complex. All issues must be carefully considered and brought to the mediation table during the process. Not to consider them would, in our view, be a failed (possibly negligent) mediation. It is therefore crucial that mediators with international expertise are used. Question your mediator regarding the experience s/he has in international family law. It is your right to know. There are many safeguards which must be put in place to protect the agreement you both reach and a raft of pitfalls to avoid. There are many international regulations and conventions which takes precedence over court orders in some situations. It is essential that your mediator know these like the back of their hand.
Example: A couple may have agreed that one of them will relocate with a child to another country for one year and will then return to the contact and living arrangements that existed prior to the short move. BUT if that parent decided not to return, it may be very difficult for the left behind parent to insist on a return even if an application is made to the court.
Issue: If it is argued that the children have ‘settled’ in the other country the children may not be ordered to return ‘home’ whatever a mediation agreement or court order says.
Duty of care
At iFLG, we specialise in cross border cases involving children and we understand these pitfalls. It is our duty to raise these issues in the mediation process and for the parents to consider them. By raising these issues, the parents can then seek specific legal advice before reaching a mediated agreement. The lawyer can attend a mediation or the mediation can be adjourned for a short time to allow a parent to seek advice before continuing. The final agreement must be one which works and is watertight. We always advise putting a mediated agreement involving international aspects into a court order as this will be always be more secure than an agreement which has not been endorsed by a court. If it is proposed that a child will be returned after a period abroad or contact arrangements are set out, it is crucial that as many safeguards as possible have been built into the agreement or court order as possible.
The mediator has a duty of care to the mediation process, to ensure any agreement made is in the best interest of the children, fair to both parents and that all important issues which could cause the agreement to fail have been properly considered.
If an agreement is reached within the mediation process a Memorandum of Understanding is drafted. This is a legally privileged document setting out everything from with whom and where the children will live; the contact arrangements (with parents and extended family); special events; a decision making structure for all major milestones in the children’s lives; education, health and religion. The list is limitless.
Children are only brought into the mediation process if it is necessary or if they wish to be heard and the parents agree. In practice, we can see children from the age of 8/9 years upwards. The children are invited to meet with the mediator separately but only if they and the parents agree. Often the voices of the children help parents to truly understand how their children feel which in turn helps them to make the right decision for their family. Mediation helps bring the voice of the child/children to the forefront.
Mediation usually takes 3 sessions each of around 2 hours. These sessions can be face to face at our London offices or via Skype. Mediation is cost effective and works well. It is also easily ‘transportable’ across the world’s time zones.
Here is some feedback from families who have gone through the mediation process with us:
“Mediation gave us both an opportunity to speak with each other calmly. It took away much of the conflict and hurt we were both feeling”
“Mediation allowed us to focus on our children’s future”
“The mediation enabled us to talk about the things we feared following the breakdown of our marriage.
“Mediation gave me a better understand for how my ex-partner was feeling”. It helped us both move on”.
If you would like further information on the Children’s Mediation Service at iFLG see our website. If you have any questions regarding the mediation structure and process you can contact Denise Carter on denise.carter@iflg.uk.com
The contents of this article are for reference purposes only. They do not constitute legal advice and should not be relied on as such. Legal advice should always be sought for your specific circumstance.
By Denise Carter OBE and Ann Thomas
Specialist Mediators in Cross Border Cases involving Children.
Sponsored article by The International Family Law Group LLP
Denise Carter OBE is a Mediator and Head of Mediation Services at iFLG. Denise is a highly experienced and hugely respected Mediator in international child disputes and particularly in the areas of parental child abduction and child relocation, covering both Hague and Non Hague States. She has worked with many of the world’s leading children law specialists including lawyers, judges and other mediators. She is a recognised trainer in the area of international child mediation and on of a handful of mediators qualified to hear the voice of the child during the mediation process.
Ann Thomas is a partner, solicitor, civil and family mediator, a trained collaborative lawyer and the Managing Partner at iFLG. She specialises in all aspects of family law but especially in international child relocation. She is recognised as a leading international children lawyer and is Head of the IFLG International Children Team. Ann is also qualified hear the voice of the child during the mediation process.
The International Family Law Group LLP is a specialist law firm, based in London, looking after international and national families. iFLG handles a plethora of financial and forum matters linked to a relationship breakdown and matters relating to children (child relocation, abduction, adoption, surrogacy, contact and residence issues). As accredited international family law specialists iFLG regularly receives instructions from foreign lawyers concerning matters in England and Wales. iFLG is also regularly instructed by ICACU (Central Authority for England and Wales) and we also provide expert evidence abroad in family cases.
