Mediation protection held not relevant to child abduction

When can notes from family mediation be used in evidence? Twenty years since the Civil Evidence (Family Mediation) (Scotland) Act 1995, the issue had apparently never been determined until it arose in the context of a child abduction petition.

The exception to the privilege afforded to mediation discussions – the admissibility as to any “contract” entered into (or not) during the course of family mediation, and what constituted a “contract” in this context – was debated by counsel but not determined. After detailed analysis of the interpretative material, Lord Stewart in FJM v CGM [2015] CSOH 130 (29 September 2015) concluded the legislature did not intend the 1995 Act to apply to mediations about Hague disputes.

Even excluding the evidence of the mediation material – which seemed to point to the petitioner agreeing the children could reside in Scotland temporarily – the petitioner had acquiesced in the removal of the children from Australia. He had been “legally wronged and emotionally hurt” by the respondent’s actions, and “her conduct is to be disapproved of”, but the petitioner proposed no arrangements for a permanent return to Australia and did not raise custody proceedings in New South Wales.