Parental responsibility in a cross-border context

The agreement is written by the mediators in collaboration with the parties in both languages, checked by and approved of by the parties’ attorneys and signed by the parties.

With the parties’ consent, the attorneys pass it on to the court to ensure its registration or the preparation of a court record. An undertaking (binding declaration made by one of both of the parents to the court of the state of abduction) must be declared binding by the authorities or court in that state; it is not binding in the other state. The agreement can then be made legally binding in the state of the child’s habitual residence by one or both of the following:

• A mirror order: either an order from the court in the state of habitual residence of the child mirroring the content of an undertaking made in the state of abduction and rendering it enforceable in the state of the habitual residence or identical orders from courts in the two states involved in the case
• A safe harbor order imposing obligations on the left-behind parent by the competent court in the state of habitual residence with the purpose of securing the child´s return to and subsequent residence in its state of habitual residence is enforceable in the state of habitual residence.

In case of complications (e.g. if criminal charges have been threatened or pressed) it could be very helpful for the attorneys to request that the judge contact the liason judge in the state of habitual residence. Cautionary measures can then be taken to ensure the safe return of the abducting parent, e.g. via a safe harbor order. In some cases only a partial agreement is reached, but even in cases where no agreement was reached in mediation, judges competent for Hague cases report that the parties are in a much better position to communicate with each other and to cooperate with the court than before the mediation.

Conclusion

Mediation is an excellent way to resolve cross-border parental child abduction cases in the interest of the parties involved and most of all in the interest of their children. While mediation in this field faces special challenges, it has much potential and there is a growing need as well as a growing number of highly-qualified cross-border family mediators.