E (A Child) (Mediation Privilege), Re (Rev 1)

Mediation communications concerning arrangements for children attract a special form of privilege within the wider without prejudice protection. Disclosure is permitted only in the narrow case where the communication clearly indicates that a person has caused, or is likely to cause, serious harm to a child, and even then the court must balance the child’s interests against the public interest in preserving mediation confidentiality.

A general appeal to relevance, the interests of justice or a fair trial does not displace that protection. The parties’ waiver or consent is required. The protection extends to mediator’s notes and evidence from the mediator.

The proceedings concerned an application under the Child Abduction and Custody Act 1985 incorporating the 1980 Hague Convention. The mother sought E’s summary return to the USA. The father disputed habitual residence and relied alternatively on consent and acquiescence.

Before the final hearing, the mother sought to exclude references in the father’s evidence to discussions in family mediation. The father sought disclosure of the mediator’s notes and permission to adduce evidence from the mediator. The central issue was whether mediation discussions could be disclosed because they were relevant to the Hague Convention defences and necessary to enable a fair trial.

1. Applications. The mother’s application succeeded in part. References to discussions in the August 2020 mediation were excluded. The father’s application for disclosure of the mediator’s notes and permission to rely on a statement from the mediator was dismissed.
2. Nature of the protection. The privilege attaching to communications concerning arrangements for children is a recognised hybrid or special form of privilege within the wider without prejudice rule. It extends, rather than restricts, the ordinary protection for settlement communications. Its rationale is the public interest in enabling parents to speak freely and mediation to operate effectively.
3. Exception and discretion. Disclosure may be justified where a mediation statement clearly indicates that its maker has caused, or is likely in the future to cause, serious harm to a child. Even in that narrow case, admission remains discretionary. The trial judge must balance the public interest in protecting the child against the public interest in preserving mediation confidentiality.
4. Hague Convention context. The obiter observations in Re D (A Child) (Hague Convention: Mediation) [2017] EWHC 3363 (Fam) [2018] 4 WLR 45 were consistent with this analysis. The father did not rely on the serious-harm exception or any other established exception. Relevance, the wider interests of justice and the right to a fair trial therefore did not justify disclosure.
5. Scope and waiver. The parties may waive the privilege or consent to disclosure. The mediator’s own willingness to provide notes did not remove the privilege, which belonged to the parties. Open correspondence after the August mediation was not protected. The signed parenting plan from the 2019 mediation could be relied upon as a concluded agreement, although the trial judge would determine what inferences could properly be drawn from it.