Judge urges mediation to settle child care dispute

Family Law|July 29th 2014

A High Court judge has urged a couple fighting over which country their son should live in to attend mediation.

In AL v DA, a French mother wanted her eleven year old son to live with her in Paris, whereas the English father wanted the boy to live in southern England.

This was not the first time the parents had clashed over this issue since the breakdown of their relationship.

The boy spent the first few years of his life living with his mother in France but, as a result of legal proceedings in Paris, the boy moved to England to live with his father.

There was also “considerable litigation” in England three years ago which resulted in Lord Justice MacFarlane ruling in favour of the father.

The mother started a new application to secure a court order in her favour. She claimed it was what her son wanted.

She also supported the appointment of a guardian to act on her son’s behalf under Rule 16.2 of the Family Procedure Rules 2010. This sets out when a court can involve a child in family proceedings.

The father opposed the appointment of a guardian for his son. He believed it would be more suitable for the parents to jointly instruct a psychologist or psychiatrist to investigate “the psychological functioning of both parents and their son”.

Mr Justice Holman said he was “crystal clear” that the child needed an independent guardian in these proceedings due to the “long history of conflict between his parents”.

As for where the boy should live, the judge declined to make the order requested by the mother. He said that even if he were to order that the child should live with his mother on an interim basis, it would be “very hard indeed” to reverse the decision at a later date.

Despite noting unsuccessful attempts at using mediation, Mr Justice Holman said that was no reason “for throwing up one’s hands in despair” and giving up on it altogether. He added that “in the privacy of mediation … there is scope for a completely confidential privileged exchange of thoughts”.

The judge said going through mediation could lead to a “child-focused” solution to the dispute before going through a “terrible” final hearing. He emphasised the need to resolve their issues before they head “precipitately down the road to war”.

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