Introduction
An occurrence of international child abduction evokes negative emotions and strong condemnation. The unauthorised removal of a child from the loving care of a parent across international lines is obviously unacceptable. Equally so, is the retention of a child abroad without mutual parental consent.
In 1980, the Convention on the Civil Aspects of International Child Abduction (the ‘1980 Hague Child Abduction Convention’) was first introduced and unanimously approved by all contracting states present at the 14th Session of the Hague Conference on Private International Law on 24 October 1980 . As of 2022, there are 103 contracting parties, including Hong Kong. The 1980 Hague Child Abduction Convention’s purpose is to provide a mechanism “desiring to protect children internationally from the harmful effects of their wrongful removal or retention ”[1]. by providing a prompt procedure to secure their return and / or to secure rights of access. Such wrongful removals or retentions are generally known as ‘Hague abductions’.
By nature, Hague abduction cases are highly emotional and stressful for parents – especially for the left behind parent. For a child, regardless of whether they are aware of the specific legal circumstances or consequences, their removal or retention by a parent will undoubtedly cause confusion and instability. Some cases can create long-term damaging effects including psychological trauma and distress, loss of contact with a left behind parent , loss of social, family and education systems and support systems, and even the potential jeopardy of one’s identity.
The 1980 Hague Child Abduction Convention has served its purpose well since its inception and provided a reliable framework for relevant contracting parties to implement return applications via their central authorities, which, once accepted, are then referred to a judicial authority for a determination. Time is of the essence and under the1980 Hague Child Abduction Convention, the application and hearings are required to be conducted expeditiously and completed within 6 weeks. The defences to an application for return are limited. It is not an opportunity for parents to be heard on other factors or arrangements in relation to the child, as these matters are more appropriately dealt with by the domestic court.
For more information on 1980 Hague Child Abduction Convention and child abduction cases in Hong Kong, please see our article.
State of Play in 2021
Recent statistics from a global report dated September 2023 (available at this link)on international child abduction make for interesting reading[2].
A brief summary:-
- In 2021, at least 2,771 children were involved in 2,180 return applications globally.
- Of this number 88% of the taking persons were a ‘primary carer” or ‘joint primary carer’.
- Mothers were the largest group of parents who took children, followed by fathers.
- 38% of return applications were ultimately decided by a court.
- 16% resulted in voluntary returns.
- The total number of days taken to resolve the applications had increased from 164 days in 2015 to 207 days in 2021.
- Crucially, 22% of the applications received were resolved by agreement[3].
Mediation
Many parents, when seeking legal advice, either to bring a case of child abduction or defend one, can’t possibly fathom how a case can be resolved without a judicial determination of right and wrong. Usually, unpleasant and damaging allegations are made about the left behind parent or the domestic jurisdiction. Matters become acrimonious. However, that does not always have to be the case. Dispute resolution methods, such as mediation can be successful in resolving the dispute.
The 1980 Hague Child Abduction Convention itself provided for the prospect of mediation by Article 7, which requires central authorities not only to secure voluntary return but to also “to bring about an amicable resolution of the case.” In 2012, the advisory Guide to Good Practice Child Abduction Convention: Part V – Mediation (available at this link) was produced in multiple languages aiming to promote the use of agreements and a good practice guide in the use of mediation in cross border disputes. Other options are of course available, however, for the purposes of this article we focus on mediation.
Benefits of mediation in Hague Abduction Cases
The Family Team at Tanner De Witt are firm believers in constructive and practical approaches to resolution which often include mediation. Mediation offers a plethora of benefits, including:-
- Flexibility and tailored solutions: Mediation empowers the parties to take ownership of the process and outcomes and generate options which work for them and their specific situation.
- Broader Scope: Mediation is not limited to issues within the court’s jurisdiction, whereas abduction proceedings is inherently limited. It allows parents to address a broader range of topics related to the child’s interests, including for example custody and care and control for the child, their separation and/or divorce arrangements, as well as anything else they wish to discuss. This is especially helpful in resolving long-standing family disputes and preventing further disputes in the domestic jurisdiction.
- Preserving the co-parental relationship: It may seem contradictory to suggest that there is a co-parental relationship to be salvaged after a Hague abduction. However, the reality is that in most cases there will remain a co-parenting relationship despite this difficult situation. Mediation gives parents the opportunity to work together to come to mutually agreed solutions, thereby eliminating the notion of a ‘winner’ versus a ‘loser’ and placing the child at the very centre of discussions.
- Cost-effectiveness: Generally, mediation tends to be more cost-effective than court proceedings, which can include multiple court attendance by legal representatives and costs incurred to draft legal documents and evidence.
Even if an immediate agreement is not reached through mediation, there can still be substantial benefits for the parents and for the child(ren). Mediation can help parents manage short-term issues such as access or financial arrangements pending a determination. Parents may also propose and/or agree protective measures in the state of habitual residence should return be ordered. Parents may also learn the essential skills of active listening and effective dialogue, enabling them to engage in constructive conversations. With these skills, parents can navigate future disagreements more effectively, hopefully leading to a greater understanding of each other’s perspectives.
Two recent case studies
American singer Joe Jonas and British actress Sophie Turner hit headlines across the globe when their private affairs turned public in late September in 2023. Their separation, followed swiftly by divorce proceedings initiated by Jonas in the United States and Hague abduction proceedings issued by Turner for wrongful retention of their children in the USA, was covered by celebrity glossies and international news organisations alike.
Jonas and Turner agreed to a 4-day mediation which, thankfully, led to an interim and private custody agreement in relation to the children’s arrangements – preventing further scrutiny and speculation by the press and an ugly trial.
(2) Hong Kong/Japan: Hong Kong case of OM v WX [2023] HKCFI 2688
Our family team, instructing Barrister Joshua Baker, successfully assisted a father to return to his home country with his son, who had been retained in Hong Kong by his mother following a trip to the city. Through mediation, the father and the mother came to agreements on inter alia (i) the child’s return to Japan and (ii) access and visitation for the mother who wished to stay in Hong Kong.
The use of mediation allowed the parties to explore their stated concerns and create a solution which worked for each of them individually, without arguing the facts before the Court. The Decision reflecting the agreement can be found at this link.
Mediator Perspectives
We spoke to experienced Hague mediators Sala Sihombing and Kay Chan for their perspectives on the use of mediation in Hague abduction cases.
- Is mediating a Hague abduction case different to a ‘standard’ children’s arrangements case?
The first principle is to always keep the focus on children’s best interests, regardless of Hague or not. However, we speak in mediation about the parties negotiating in the shadow of the law. In Hague cases, the legal aspects of the case can seem like a living, breathing presence in the room. Whilst the child focus is the same, there is often a multiplicity of legal and even criminal cases surrounding the Hague case itself which can make it difficult for parents to focus on their children. #SalaSihombing
- How do you approach a Hague Abduction case as a mediator?
I usually first try to understand the background of the family including the country of origin, how they communicate with each other and their views on the child’s upbringing. I always want to have intake sessions on a separate day before the joint session so parents would get some time between the intake and joint session to think and better formulate their concerns and do necessary preparations, like research, for the joint session. #KayChan
- What should parents consider before mediating a Hague abduction case?
I think the timing for mediation can be critical. I have worked with parents who had so many outstanding cases that finding a through-line was extremely difficult. I would ask any parent to consider the impact on their children of a court battle. Regardless of the parents’ perceptions and beliefs, children typically wish to maintain a relationship with each of their parents. Helping children to weather this storm can be difficult when it seems like everything has fallen apart. Generally, abduction has resulted from a crisis of some kind between the parents. When working with parents they need to work to step out of crisis mode and shift to decision-making in the interests of their children. #SalaSihombing
- Would you encourage parents to consider mediation for a Hague abduction case?
Mediation is highly recommended for Hague abduction cases because it really allows parents to move past the past bad feelings and focus on the future upbringing of the children. The communication done through the mediator can also take some of the negative emotions out of the exchanges between the parents which can in turn facilitate more productive communications. #KayChan
- Do you have any interesting experiences in particular with mediating Hague abduction cases?
I have worked on cases where the acrimony from the court-resolved Hague cases has destroyed the ability of the parents to interact in a constructive manner. However, I will never forget working with parents where the children had been returned to Hong Kong and the parents were mediating their divorce. This was the first time they had seen each other and without any warning, the parent who abducted the children apologised. It was an emotional apology which demonstrated an understanding of the exact nature of the betrayal given this family’s situation. Spontaneous apologies can happen, however what happened next shocked me. The left behind parent apologised and acknowledged that their behaviour had contributed to the crisis and the abduction. We sat in the mediation in silence for some time as the parents processed what each had said to the other. #SalaSihombing
Conclusion
Ultimately, mediation can be explored in most cases arising out of alleged removal or retention of children. An amicable resolution, with the child’s interests considered, serves all parties involved and prevents acrimonious, drawn out and potentially expensive proceedings.
Joanne Brown and Phoebe Chan
The above is not intended to be relied on as legal advice and specific legal advice should be sought at all times in relation to the above.
For more information on the 1980 Hague Child Abduction Convention and its effects on you or your family, please contact:
Joanne Brown
Partner | [email protected]
Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.
[1] Preamble to the 1980 Hague Child Abduction Convention
[2] Global Report – Statistical study of application in 2021 under the 1980 Child Abduction Convention Prel. Doc No 19A of September 2023
[3] These figures applied largely to common law jurisdictions and thus the overall number may be higher. The study does not indicate how agreement was reached. Nevertheless, it is safe to say that approximately a quarter of these cases were ultimately resolved by the parents without a court’s assistance. Point being, alternate dispute resolution is possible in even the most difficult of cases and can lead to resolution.
