International parental child abduction cases represent the most escalated, complex cases in family law. It is widely acknowledged that mediation in these cases in particular has many advantages: it can help to de-escalate the conflict between the parents, puts the parents’ focus on the child, can help to find mutually acceptable solutions. In child abduction cases where a return has been ordered, it can facilitate a “soft landing” for child and parent by ensuring that the modalities for contact, living arrangements, finances and other matters have been agreed.
Since child protection requires an swift solution of cross-border child abduction cases, which is reflected in the requirement for “expeditious” proceedings under both the 1980 Hague Convention and the BRIIa Regulation in these cases, mediation in international child abduction cases must compete with the this short timeframe. The strict time limit of six-weeks imposed by the BRIIa Regulation during which child abduction proceedings must be concluded makes it challenging to “fit” mediation into this tight time frame. Neither the BRIIa Regulation, nor the BRIIa Recast provide a practical procedure or model as to how judges can facilitate the incorporation of mediation into the tight timeframe of child abduction proceedings. Hence, few judges in most EU Member States refer parents to mediation in such cases despite the obvious benefits this would bring concerning the best interest of the child. The successful experience of specialist mediation in child abduction cases in some EU Member States, however, has shown that it is feasible to arrange for short notice organised and speedily conducted mediation alongside ongoing Hague return proceedings. The Best Practice Model promoted by the Amicable project suggests: Two (instead of one) hearing in child abduction cases will be scheduled. A mediator is invited to attend the first hearing for the purpose of informing the parents about mediation. If the parents are agreeable to mediation, an intensive mediation process of 2-3 days will take place in between the two court hearings. This mediation model requires the cooperation of all stakeholders in Hague cases: judges, cross-border mediators and mediation NGOs, Central Authorities and the parties’ lawyers. Such a model already exists and is operative in slightly different variations in England & Wales, in the Netherlands and in Germany.
The AMICABLE project seeks to explore if this this model can be introduced in other EU Member States, initially focusing on the project partner countries Spain, Poland and Italy, investigating if both the procedural laws of these States and the necessary mediation structures allow for this.