By Niamh Ellis
The High Court has refused to allow documents from a confidential mediation in England to be used as evidence in proceedings seeking the return of a child from Ireland to England under the Hague Convention.
The substantive case concerns an allegation that the child, identified only as X, has been wrongfully retained in Ireland and was habitually resident in England. Ms Justice Nuala Jackson's ruling does not decide whether X must be returned. It deals only with whether material generated during earlier mediation between the parents can be placed in evidence.
The parents attended mediation in England in 2025 to discuss arrangements for their children. No court proceedings were then underway, although litigation was contemplated if matters could not be resolved. Their signed mediation agreement stated that the process was confidential and that settlement discussions were without prejudice, meaning they could not ordinarily be disclosed to a court.
The father later supplied mediation-related documents to the Central Authority for England and Wales when commencing the Hague Convention process. He sought to rely on parts of those documents in the Irish proceedings, arguing that Articles 8 and 30 of the Convention facilitate the admission of documents transmitted through Central Authorities.
Jackson J rejected that argument. She found that there was a genuine dispute between the parties when they entered mediation and that no concluded agreement had been reached. The documents therefore remained protected by without-prejudice privilege.
The judge held that Article 30 is intended to remove formal evidential barriers, such as requirements for authentication or strict proof of foreign documents. It does not, she found, abolish substantive rules protecting confidential mediation communications.
The court therefore refused the application to admit the mediation material. It separately made an uncontested order prohibiting publication of material likely to identify the children involved. The substantive child-return case remains to be decided at its scheduled hearing.