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Cross-border Mediation - The Hague Convention on the Civil Aspects of International Child Abduction (Convention)

The Hague Convention on the Civil Aspects of International Child Abduction (Convention) is the international legal mechanism by which an abducted child is returned to its ‘country of habitual residence’. The stated intent of the Convention is to ensure abducted children are returned promptly so that parenting & other matters can be decided in the country the child was abducted from.

The quickest way for this to happen is through the voluntary return of an abducted child. This can now be achieved through a process called Cross-border Mediation (CBM). I understand this a new process that is designed to bring both parents together with trained mediators over two or three consecutive days to find a way forward that will see abducted children returned voluntarily to their ‘country of habitual residence’ more quickly than has been the case in the past .

In the past, voluntary agreements have typically required the abducting parent to work through the issues associated with the voluntary return of an abducted child largely on their own. The means a lot of uncertainty surrounds the issues that are still outstanding at the time a child is returned. As I understand it, CBM is designed to take much of the uncertainty out of these issues by having them addressed through the CBM process before a child is returned. Again as I understand it, the agreement reached through CBM is binding on both parents in both jurisdictions once it has been signed ie the jurisdiction the child has been abducted to & the jurisdiction the child has been abducted from. I assume this means less time needs to be spent in court in the country the child is returned to as well since many of the issues should have been resolved between both parents during the CBM process.

CBM is an alternative to the Left Behind Parent (LBP) petitioning a court to have a child returned under the provisions of the Convention, which is the normal means by which an abducted child is returned between two signatory countries, which both The Netherlands & Australia are. If CBM fails, however, the LBP can still petition the court to order a child’s return under the provisions of the Convention. It simply takes longer during which time interim parenting arrangements sometimes need to be put in place by the court in the country the child has been abducted to until final parenting arrangements can be decided in the jurisdiction in which the child was abducted from when the child is returned.

This week I read an article in Grazia magazine written by 19 year-old Johanna Fisher. Johanna wrote her article in response to learning about Andrew being located in Amsterdam last month.

Johanna was abducted from Australia to Switzerland by her mother in 1998 when she was six years old (Andrew’s age now). Her story brings to life the terrible experiences & the trauma abducted children go through. Her thoughts & feelings & emotions, & the psychological issues she’s had to contend with over the past 12 years, are very similar to the those I’ve been told about or have read about by other adults who were abducted across international borders as children by one of their parents ; forced into hiding, & forced into having their identities changed. They are also consistent with the findings of research carried out by eminent child psychologists like Dr Nancy Faulkner PhD who delivered a paper to a United Nations conference in 1999 about the awful experiences abducted children go through & about the short & long-term psychological problems they suffer as a result of their abduction.

Johanna’s story is similar to stories I’ve heard first-hand over the past couple years from children who’ve been abducted & then located & eventually recovered to the countries they were abducted from. I will always remember six-year-old Nadia Taylor telling me at the launch of International Missing Children’s Day in London on 25th May this year that Andrew wants me to find him. Nadia was talking from first-hand experience after being abducted internationally by her father when she...

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