The decision of the Provincial Court (Audiencia Provincial) of Barcelona nº 573/2013 of 1 October 2013, though rendered some years ago, outstands as it considers the use of mediation in the enforcement of a child return order in a child abduction case.
The facts were as follows: a couple, having two children, was habitually resident in Madeira (Portugal), where they had their family and social environment (this topic was not contentious).
The fact that gave rise to the litis was the mother taking the children to Spain, which was considered by the Court of Appeal to be an unlawful removal of the children from their habitual residence. The children’s removal had in fact not been consented by the father and neither were applicable the grounds for non-return established in Article 13 of the 1980 Child Abduction Convention. The Court consequently decided to order the return of the children to Portugal.
However, the key point of this decision was the introduction of mediation as a means to enforce the return decision of the children to the State of their habitual residence, and therefore, after the judicial ruling of the decision of return. The Court ordered the Justice Ministry to initiate a mediation procedure between both parents on the circumstances of which the return of the children had to be carried out.
The Court of Appeal held that, taking into account that the 1980 Hague Convention applies automatically and that it has a restrictive object, it can place children in situations that can be qualified as harmful or “cause inconvenience”. Hence, the Court acknowledges that it is necessary to apply measures that can mitigate the negative consequences that the return order might cause to them. The use of mediation, that will allow to agree on the way the return of the children is carried out, will certainly make the return procedure more pacific for all parties involved, both parents and children.
It should be recalled that cross-border cooperation and the use of mediation is based on Article 7 of the 1980 Hague Convention, Article 55 e) of the Brussels IIbis Regulation as well as on art. 31 b) the 1996 Hague Convention (also developed in the Guide to Good Practice on the Child Abduction Convention – Mediation and the Practice Guide for the application of the Brussels IIa Regulation, drafted by the European Commission together with the European Judicial Network in civil and commercial matters).
You can read the decision (in Spanish) here.
Article by Marta Tarragona Fenosa