Family Law

On 13 March 2018, a new practice direction was issued by the President concerning Case Management and Mediation of International Child Abduction Proceedings.

 A practice direction tells anyone involved in judicial proceedings how to manage the case and interpret the Court rules.

The practice guidance has been issued by the President to ensure all applications are appropriately case managed – whether commenced by a without notice application or on notice. The guidance deals with a number of aspects of child abduction proceedings, but practitioners should take note in particular of the changes made in relation to without notice applications and mediation.

Without notice applications 

For some time now the courts have discouraged the use of without notice applications in child abduction proceedings. In the case of B v A (Wasted Costs Order) [2012] EWHC 3127 (Fam), [2013] 2 FLR 958, Mr Justice Charles reminded practitioners of the correct procedure to be used when making without notice applications. Previous guidance had been given by Mrs Justice Theis in KY v DD (Injunctions) [2011] EWHC 1277(Fam), [2012] 2 FLR 200, Mr Justice Munby (as he then was) in both Re W (Ex Parte Orders) [2000] 2 FLR 927 and Re S (Ex Parte Orders) [2001] 1 FLR 308, and Mr Justice Charles in B Borough Council v S (by the Official Solicitor) [2006] EWHC 2584 (Fam), [2007] 1 FLR 1600.

The new guidance seeks to further reinforce the court’s unwillingness to grant without notice applications unless in exceptional circumstances. The guidance makes it abundantly clear that such applications will be justified only where:

(a)        the case is one of exceptional urgency; or

(b)        there is a compelling case that the child's welfare will be compromised if the other party is alerted in advance; or

(c)        where the whereabouts of the child and the proposed respondent are unknown. 

An urgent out of hours without notice application will be justified only where an order is necessary to regulate the position between the moment the order is made and the next available sitting of the court.

Furthermore, the evidence in support of a without notice application pursuant to FPR r 12.47 must be as detailed and precise as possible having regard to the material provided by the applicant and transmitted by the Central Authority of the Requesting State. Although the days of rushing down to court to apply for without notice orders purely on the basis that it was a child abduction case are thing of the past, the guidance expressly states that un-particularised generalities will no longer suffice. 

Mediation – Child Abduction Mediation Scheme 

The requirement in FPR r 1.4(2)(f) that case management includes encouraging the parties to use a non-court dispute resolution procedure where appropriate also applies to international child abduction proceedings.

Although, were appropriate, mediation has always been encouraged in child abduction proceedings, the introduction of the Child Abduction Mediation Scheme aims to ensure that parties engaged in child abduction proceedings are able, in a suitable case, to access a mediation service as an integral part of the court process and in parallel with, but independent from, the proceedings. Whilst mediation will not always be appropriate, it should always be explored by the court in cases of alleged international child abduction.

The new Child Abduction Mediation Scheme is an independent scheme run with the assistance of Reunite, a well-established organisation which provides mediators with specialised knowledge of international child abduction, trained and experienced in mediating cases of this nature.

The following key principles apply to the operation of the Child Abduction Mediation Scheme:

(a)        The mediation will run in parallel with, but independent from, the proceedings in court, with the aim of completing the mediation within the timescale applicable to the proceedings.

(b)        Mediation is voluntary and will only be undertaken with the consent of both parents.  An unwillingness to enter into mediation will not have an effect on the outcome of the proceedings.

(c)        Mediation will only be undertaken if the mediator considers that it is appropriate and safe to do so, and following an assessment of the parties and their situation during the required screening stage.

(d)        Participation by the parties in mediation is without prejudice to the applicant’s right to pursue the return of the child, and without prejudice to the respondent’s right to defend the proceedings.

(e)        Participation by the parties in mediation does not prevent the parties from requesting that the court determine the issues between them.

(f)        If the mediation is not successful in resolving the issues then the matter will return to the court arena for determination.

Many child abduction cases are extremely contentious and involve parties with polar opposite views as to where their children should live. Nonetheless the introduction of the Child Abduction Mediation Scheme is a very welcome addition to the court process and it is hoped that this will reduce court time and encourage parties to come to an agreement without the need to go to a final hearing.