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2026 IEHC 394

APPROVED REDACTED FOR PUBLICATION [2026] IEHC 394 THE HIGH COURT FAMILY LAW IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT 1991 AND IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION AND IN THE MATTER OF X, A MINOR Record No. H.HLC.2026.0000005 Between: A.B.C.D Applicant AND E.F. Respondent Judgment of Ms. Justice Nuala Jackson delivered on the 12th June 2026. 1. The substantive proceedings in this matter seek the return of the child, X, to England pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 (“the Convention”) on the basis that there has been a wrongful retention of the child from that jurisdiction in Ireland, X, it is alleged, being habitually resident in England. 2. This judgment is concerned with a motion which raises a most interesting, novel and important issue. 3. I will, first of all, make an Order in terms of the first relief sought in the Notice of Motion namely an Order pursuant to section 45 of the Courts (Supplemental Provisions) Act, 1961 and/or the inherent jurisdiction of this court prohibiting the publication or broadcast of any matter relating to these proceedings, which would, or would be likely to, identify the children the subject matter of the proceedings. This relief is uncontroversial. 4. The matter in contention involves the second relief sought in the Notice of Motion namely: “An Order, pursuant to section 5 of the Child Abduction and Enforcement of Custody Orders Act, 1991 and/or Article 30 of the Hague Convention 1980 (as incorporated into the law of the State by the Child Abduction and Enforcement of Custody Orders Act, 1991) and/or the inherent power of the Court, and/or pursuant to common law that the documents prepared in the course of mediation between the Applicant and Respondent herein on the 12th August 2025 and 8th September 2025, or such portions of the said documents that this Honourable Court shall deem fit, shall be admissible as evidence in the within proceedings.” 5. In essence, I am being asked to consider the application of rules relating to confidentiality within a mediation process and/or “without prejudice” negotiations and/or legal privilege apply in the context of the Convention proceedings and the applicable rules where an Irish court is asked to consider the application of these rules in the context of mediation or “without prejudice” negotiations which occurred in another jurisdiction, namely England. 6. I would like to express my thanks to Counsel on both sides for the helpful submissions which were received by me. BACKGROUND FACTS 7. The Applicant’s solicitor swore an Affidavit on his behalf in support of the motion. The Respondent has sworn a replying Affidavit. The factual background is not complex, nor is it significantly in dispute. In or about the autumn of 2025, the parties attended for mediation with a family mediator, MR, which mediation took place in England. This mediation was addressing arrangements in respect of the parties’ children. There were no proceedings in being at that time. There is some dispute as to whether or not the mediation was successful. No concluded mediated (or other) agreement was provided to me. I have considered and determined this matter below in the context of the evidence in this motion, namely the two affidavits referenced above. MR is a qualified mediator but is not a lawyer and does not have legal qualifications. 8. In the context of the Convention proceedings, documents were received by the solicitor for the Applicant from the Central Authority in Ireland which Central Authority had received such documents from the Central Authority for England and Wales. These documents included, inter alia, documents associated with the mediation process which had previously occurred. 9. The documents at issue were not provided to me,1 but portions of them, relevant to the circumstances in which they were prepared, but not as to the substantive issues being mediated, were disclosed in this application. The documents are in the form of correspondence sent to the parties by the mediator together with enclosures.2 The covering letter is addressed to both parties and states that the contents are “legally privileged”.3 It is clear from the correspondence that both parties had attended mediation with the professional concerned.4 There is no disagreement between the parties that: (

  1. i)There was a mediation process embarked upon by the parties in the context of their relationship breakdown involving a professional mediator who was not a 1 It was indicated that the documents would be provided to the court if deemed by me to be appropriate in the context of this application. I have determined that I do not require to be provided with them. 2 The enclosures included, inter alia, “Agenda, Summary, Principles, Proposals, Next Actions and Addendum”. Notably, and as indicated by the Respondent in submissions, there is no reference to any Agreement. 3 The letter states: “The contents of this letter are legally privileged. This letter does not record or create a binding agreement between either of you. It is intended to facilitate each of you to obtain independent legal advice, which we have recommended you do before you take any steps to enter into any agreement, whether through solicitors or informally between yourselves. Unless and until you decide to enter into a binding agreement, no such binding agreement exists between you.” 4 The letter confirms that the writer is “a qualified mediator, registered with the Family Mediators Association and that the mediation has been carried out in accordance with the Family Mediation Council’s Code of Practice.” lawyer. The Respondent avers (and I do not believe there is any significant dispute in this regard) that the mediation was “to discuss and explore resolution of issues with regard to our [child]”; (
  2. ii)No legal proceedings pertaining to the issue in dispute existed at the time of such mediation (although it would appear that legal proceedings were contemplated if the process was unsuccessful); 10. The Applicant father furnished these documents to the Central Authority for England and Wales in the context of commencing the within proceedings and he now wishes to exhibit these documents in his Affidavit herein. It is averred that the contents of certain of the documents (the Addendum) have a particular relevance to the facts in issue between the parties in these proceedings. I have been asked to determine their admissibility in this context. 11. The Respondent has exhibited the Agreement to Mediate which was signed by both parties. The relevant portions of this document appear to be: (
  3. i)This was a voluntary process undertaken in the context of the parties having “issues in need of settlement” which they wished to resolve without taking them to Court; (
  4. ii)The mediator was a member of the College of Mediators and recognised by the Family Mediation Council; (iii) The process is expressed to be confidential.5 This confidentiality is expressed as it arises in a number of contexts but, relevant to the present is (
  5. a)discussions in mediation about proposals and possible terms of settlement are “without prejudice”, “which means they cannot be disclosed to the court, except as explained below at para 16”; (
  6. b)the parties agree not to call the mediator/s to give evidence in court, or request copies of any notes that the mediator may take for the purposes of their role and (
  7. c)the confidentiality protects “the content of mediation, the meetings with any children and its outcome from disclosure to the court (except where you give your joint written consent; you must take legal advice before you give such consent). If you are taking legal advice, a copy of your mediation 5 Subject to certain usual limitations relating to criminality, unlawfulness and risks to children and similar. summary can be shown to your solicitors to assist them in advising you.” 12. There would not appear to be any dispute that the parties were told that the mediation process was not legally binding and that there was a privilege attaching to discussions between them in this context, aimed at supporting open and honest discussion without fear of “our views and opinions being expressed in another forum”. (Affidavit of the Respondent, paragraph 7) SUBMISSIONS OF THE PARTIES APPLICANT 13. The Applicant references Articles 8 and 30 of the Convention and section 5 of the 1991 Act and argues that the mediation related documents are admissible having regard to these provisions. In his submissions he states: “9. The purpose of Article 30 of the Hague Convention is to ensure that procedural rules and evidentiary issues do not impede the swift resolution of child abduction cases, in line with the summary nature of the proceedings. The Hague Conference on Private International Law produced a document in 2003 entitled Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction Part II – Implementing Measures. That document under the heading ‘Documentary Evidence’ quotes the seventh conclusion of the Second Meeting of the Special Commission to Review the Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, 1993 (section.6.5.2, p.35): Delay in legal proceedings is a major cause of difficulties in the operation of the Convention. All possible efforts should be made to expedite such proceedings. Courts in a number of countries normally decide on requests for return of a child on the basis only of the application and any documents or statements in writing submitted by the parties, without taking oral testimony or requiring the presence of the parties in person. This can serve to expedite the disposition of the case. The decision to return the child is not a decision on the merits of custody. 10. The Guide continues: The Convention relaxes certain evidentiary rules as a way of speeding up return proceedings. Article 30 of the Convention is intended to facilitate the introduction of documentary evidence, including affidavits. Under Article 30, any application submitted to the Central Authority or petition submitted to the court, along with any documents or information appended thereto, are admissible in court. States are encouraged to ensure, where necessary through implementing legislation, that such documentary evidence can be given due weight under the national evidence rules. Hague return cases lend themselves to determination by summary proceedings. A full trial, consisting of an evidentiary hearing, will normally not be necessary or desirable. Legislation may provide that affidavit evidence, transcripts of oral evidence and legal argument from the requesting State are admissible as evidence of fact. Rules adopted in several jurisdictions provide for expedited hearings to this effect.” (emphasis added) 14. He submits that legislative mediation privilege as conferred by section 10 of the 2017 Act does not arise in this instance as the mediation occurred in England and not in this jurisdiction. 15. He submits that, absent such legislatively sourced privilege, no privilege attaches at common law to mediation per se and that, to attract privilege, the rules relating to “without prejudice” privilege would be applicable and that such rules are not satisfied in this instance. The authorities of Greencore v. Murphy [1995] 3 IR 520, O’Connor v. P. Elliott and Co. [2010] IEHC 167, Murphy v. O’Halloran [2016] IEHC 460 and McGrath on Evidence (3rd Ed., 2020) at para. 10.276 are cited in this regard. He submits that privilege cannot be conferred simply by the attachment of a label. 16. The failure to satisfy the criteria necessary for “without prejudice” privilege, it is submitted, is based on: (
  8. a)The absence of a dispute between the parties; (
  9. b)The fact that an agreement had been reached between the parties, resulting in the termination of the privilege. The authority of Moorview Developments Limited v. First Active plc [2009] 2 IR 788 (‘Moorview’) is referenced in this regard. (
  10. c)There is a well acknowledged exception to the “without prejudice” privilege where the document is required to prove whether or not a concluded agreement was reached. Again, the authority of Moorview is referenced. (
  11. d)An exception based upon the general interests of justice is also cited. 17. The non-application of legal privilege is argued on the basis that the mediator was not a lawyer. RESPONDENT 18. The Respondent accepts that section 10 of the 2017 Act does not apply. The Respondent relies upon the decision of the English High Court in Re E (A Child) (Mediation Privilege) [2020] EWHC 3379 (Fam) in which documents arising from an unsuccessful mediation were held to be inadmissible in Hague Convention proceedings. 19. The Respondent submits that “reliance upon article 30 of the Hague Convention cannot be used to circumvent the admissibility of documents in a court of law from the country of habitual residence where they are clearly privileged. Article 30 relates to the nature of the authentication of documents, not their legal admissibility.” LEGAL PRINCIPLES ARISING A. THE CONVENTION 20. Article 8 of the Convention provides: “Chapter iii - return of children Article 8 Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child. The application shall contain
  12. a)information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child;
  13. b)where available, the date of birth of the child;
  14. c)the grounds on which the applicant's claim for return of the child is based;
  15. d)all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be. The application may be accompanied or supplemented by
  16. e)an authenticated copy of any relevant decision or agreement;
  17. f)a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child's habitual residence, or from a qualified person, concerning the relevant law of that State;
  18. g)any other relevant document.” (underlining added) 21. As regards Article 8(g), Perez Vera,6 states : “Lastly, the Convention acknowledges that the application may be accompanied or supplemented by 'any other relevant document' (subparagraph g). In theory, since it is the dispossessed guardian of the child who brings the application, it is for him to provide these supplementary documents.” 22. Article 30 of the Convention provides: “Article 30 Any application submitted to the Central Authorities or directly to the judicial or administrative authorities of a Contracting State in accordance with the terms of this Convention, together with documents and any other information appended thereto or provided by a Central Authority, shall be admissible in 6 Elisa Perez-Vera, ‘Explanatory Report’ (Part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, Federal Judicial Center, 23 March 2016) https://www.fjc.gov/content/311576/explanatory-report-eliza-perezvera-report the courts or administrative authorities of the Contracting States.” (underlining added) 23. In relation to this provision, Perez Vera states, at paragraph 140: “This provision was intended to resolve the problem which existed in some Member States regarding the admissibility of documents. It merely seeks to facilitate admission before the judicial or administrative authorities of Contracting States of applications submitted either directly or through the intervention of a Central Authority, as well as documents which may be attached or supplied by the Central Authorities. In fact, this article must not be understood to contain a rule on the evidential value which is to be placed on these documents, since that problem falls quite outwith the scope of the Convention.” 24. The implementing Irish domestic legislation, Child Abduction and Enforcement of Custody Orders Act, 1991, provides at section 6 that: “6.—

(1)Subject to the provisions of F7[the Council Regulation and this Part], the Hague Convention shall have the force of law in the State and judicial notice shall be taken of it.” 25. Furthermore, at section 5
(2)of the 1991 Act it is provided: “
(2)For the purposes of Articles 14 and 30 of the Hague Convention the original or a copy of any such document as is mentioned in Article 8 of that Convention shall be admissible— (
  1. a)insofar as it consists of a statement of fact, as evidence of that fact, and (
  2. b)insofar as it consists of a statement of opinion, as evidence of that opinion.” 26. Article 30 of the Convention was considered in the context of hearsay documents in Dalmasso v. Dalmasso 9 P 3d 551 (Kan 2000) Larson J. Supreme Court of Kansas, “This provision was intended to resolve the problem which existed in some member states regarding the admissibility of documents; it seeks to facilitate the admission of applications and documents attached thereto and submitted either directly to judicial or administrative authorities or through the Central Authorities. Perez-Vera Report, p.140. Under this provision, hearsay concerns would be dispensed with for items appended to the Hague petition or provided by the Central Authority because Article 30 makes such items admissible without qualification in the courts of the Contracting States. See In re Walsh, 31 F.Supp.2d 200, 202 n. 1 (D.Mass.1998) (acknowledging the hearsay nature of one of petitioner's affidavits but considering it as evidence anyway as required by the Convention because it was among the materials attached to the petition).” 27. However, the Court continued on to state: “In this case, however, the documents in issue were not attached to the petition but appear to have been provided later and, in some instances, at the request of the trial court. The language of a statute should be interpreted to avoid absurd or unreasonable results. State v. Le, 260 Kan. 845, Syl. 4, 926 P.2d 638
(1996). Such a rule should likewise apply to the interpretation of the Convention. It seems illogical that if attached to the petition or provided by a central authority, documents are admissible, while, if provided later, they are not. Article 30 was intended to give deciding courts and administrative agencies access to relevant evidence despite the barriers of time, expense, and geography which might otherwise make it impracticable or unduly expensive in international disputes for such evidence to be gathered and presented in the face of hearsay or other evidentiary concerns. A flexible and sensible interpretation of Article 30 should be adopted allowing trial judges to consider any document offered in support of a Hague petition, whether affixed to the petition or not, with any hearsay concerns to be considered by the trial court mainly in deciding the weight and credibility which the documents warrant.”
  1. In the context of that particular case, the Court concluded: “The trial court's decision does not appear to have been particularly dependent on the content of the above documents, and the trial court only referred to them in its memorandum decision after reaching its primary conclusion that Elizabeth had not established by clear and convincing evidence the “grave risk” to the children required by Article 13(b). Under our facts here it is clear that the substantial rights of the parties were not prejudiced by the trial court's consideration of these documents. Even if we were to view the trial court's consideration of these documents as error, we would consider the error to be harmless. See K.S.A. 60-261.” B. MEDIATION
  2. Mediation is not referenced in the Convention, perhaps consistent with the date of its conclusion and the regard afforded mediation at that time. However, this is a regard which has fundamentally changed in the intervening years. The importance of mediation in the context of disputes and litigation has received very significant support in a legislative and judicial context in Ireland. In addition to the Mediation Act, 2017 and the other mediation-related legislative provisions in specific legal areas, including family law, the importance, endorsement and encouragement of mediation has, most recently, been evidenced in High Court Practice Direction HC 141 relating to the Mediation Act 2017 and other Statutory Provisions relating to Mediation and Alternative Dispute Resolution, as well as in numerous decisions of the Superior Courts in Ireland.
  3. In the Guide to Good Practice under the Hague Convention of 25th October 1980 on the Civil Aspects of International Child Abduction – Mediation,7 it is stated: “30 e At a very early stage in a family dispute concerning children, mediation can be of assistance in preventing abduction. Where the relationship of the parents breaks down and one of the parents wishes to leave the country with the child, mediation can assist the parents in considering relocation and its alternatives, and help them to find an agreed solution.”8
  4. The issue of confidentiality in the context of mediation is specifically addressed: 7 Published by the Hague Conference on Private International Law 2012 P. 20 Guide. This is also referenced in the Guide to Good Practice under the Hague Convention Part III Preventive Measures
(2005)in which, at paragraph 2.1.1 it is stated: “In order to encourage voluntary settlements, family mediation can be helpful. It has been suggested by a specialist non-governmental organisation that mediation is probably the most important measure in trying to prevent abduction.” 8 “All communications in the course of, and in the context of, mediation should, subject to applicable law, be confidential, unless otherwise agreed by the parties. Confidentiality of communications related to the mediation helps to create the atmosphere of trust needed for the parties to engage in an open discussion on a whole range of possible solutions to their dispute. The parties may be less willing to consider different options if they fear that their proposals may be taken as a concession and held against them in legal proceedings. In a child abduction case for example, the left-behind parent is likely to feel reluctant to indicate that he or she could agree to the child remaining in the other jurisdiction, if he or she fears that this might be interpreted as ‘acquiescence’ in the sense of Article 13
(1)(a) of the 1980 Hague Child Abduction Convention.”9 32. Irish legislative support for mediation may be found in the Mediation Act, 2017 with the principle of confidentiality in mediation having found legislative approval in Irish domestic law with section 10 of that Act which states: “10.
(1)Subject to subsection
(2)and section 17, all communications (including oral statements) and all records and notes relating to the mediation shall be confidential and shall not be disclosed in any proceedings before a court or otherwise.
(2)Subsection
(1)shall not apply to a communication or records or notes, or both, where disclosure— (
  1. a)is necessary in order to implement or enforce a mediation settlement, (
  2. b)is necessary to prevent physical or psychological injury to a party, (
  3. c)is required by law, (
  4. d)is necessary in the interests of preventing or revealing— (
  5. i)the commission of a crime (including an attempt to commit a crime), (
  6. ii)the concealment of a crime, or (iii) a threat to a party, 9 Paragraph 205 or (
  7. e)is sought or offered to prove or disprove a civil claim concerning the negligence or misconduct of the mediator occurring during the mediation or a complaint to a professional body concerning such negligence or misconduct.
(3)Evidence introduced into or used in mediation that is otherwise admissible or subject to discovery in proceedings shall not be or become inadmissible or protected by privilege in such proceedings solely because it was introduced into or used in mediation.” 33. This provision would clearly confer confidentiality and non-disclosure protection upon the documents at issue in this case in the event that Irish domestic law applied. In this instance, the Agreement to Mediate was entered into in England at a time when both of the parties were residing there. The terms of this Agreement make it amply clear that the process was confidential and non-binding. Legal privilege 34. Legal professional privilege arises in relation to documents prepared by lawyers in the course of advising their clients. It is not in dispute that there was no lawyer involved in the mediation process under consideration. I note that the terminology used was that the process was “legally privileged” not an assertion of legal professional privilege or litigation privilege. Without prejudice/Mediation privilege 35. I accept that the statutory mediation privilege contained within the 2017 Act (section 10) does not arise in this instance. The circumstances in which “without prejudice” privilege arises have been addressed in many precedent decisions. The quotation from McGrath on Evidence (3rd Ed, 2020) at paragraph 10-276, referenced by the Applicant, is clear: “In order for a claim of privilege to succeed, the party claiming it must establish that the communication in question was made: (
  1. i)in a bona fide attempt to settle a dispute between the parties; and (
  2. ii)with the intention that, if negotiations failed, it could not be disclosed without the consent of the parties.” 36. The rationale behind the privilege is stated in Abrahamson “Discovery and Disclosure” (3rd Ed. 2019) at paragraphs 42-03 – 42-05: “42-03 The authorities suggest that there are two separate justifications for the privilege. The first is the public interest in encouraging parties to settle their disputes wherever possible. In Greencore Group Plc v Murphy,5 Keane C.J. held: “… the rule is founded on public policy, the courts taking the view that parties should be encouraged as far as possible to settle their disputes without recourse to litigation and should not be discouraged by the knowledge that anything that is said in the course of negotiations may be used in the course of proceedings.”6 42-04 Irish judgments have tended to emphasise the public interest justification for the privilege. In Purcell v Central Bank of Ireland,7 Hogan J. said: “By definition, a settlement involves compromise or, at least, the exploration of the strengths and weaknesses of both sides case. If litigants could not explore these matters on a without prejudice basis the potential for settlement and compromise would be greatly undermined.”8 42-05 The second justification derives from the idea that where one party writes to another using the words “without prejudice”, there is an implied agreement between the parties that their negotiations will not be disclosed. This concept was formulated by Oliver L.J. in Cutts v Head,9 who explained that because the contents of the negotiations could not generally be disclosed even after the court had reached a determination on the facts of the case, the public policy justification was not the only basis of the rule: “Once, however, the trial of the issues in the action is at an end and the matter of costs comes to be argued, [the public policy] can have no further application for there are no further issues of fact to be determined upon which admissions could be relevant. One is, therefore, compelled to seek some additional basis … and it is, as it seems to me, to be found in an implied agreement imported from the marking of a letter ‘without prejudice’ that it shall not be referred to at all.”10 37. It is clear that there must be a dispute between the parties but it is likewise clear that there is no requirement that litigation have commenced. Abrahamson at paragraph 42-16, discussing this temporal aspect, states: “42-16 The question arises as to whether the privilege applies only to negotiations conducted in close proximity to the litigation. This was considered by the English Court of Appeal in Barnetson v Framlington Group Ltd,36 where it was argued that the privilege could only apply to statements made once litigation had been threatened or shortly before it was begun. Auld L.J. rejected this argument and held as follows: “… the claim to privilege cannot, in my view, turn on purely temporal considerations. The critical feature of proximity for this purpose, it seems to me, is one of the subject matter of the dispute rather than how long before the threat, or start, of litigation it was aired in negotiations between the parties. Would they have respectively lowered their guards at that time and in the circumstances if they had not thought or hoped or contemplated that, by doing so, they could avoid the need to go to court over the very same dispute? On that approach, which I would commend, the crucial consideration would be whether in the course of negotiations the parties contemplated or might reasonably have contemplated litigation if they could not agree. Confining the operation of the rule, as the judge did, to negotiations of a dispute in the course of, or after threat of litigation on it, or by reference to some time limit set close before litigation, does not, with respect, fully serve the public policy interest underlying it of discouraging recourse to litigation and encouraging genuine attempts to settle whenever made.”37 38. There is no doubt that the privilege ends if and when agreement is reached and that an exception to the privilege arises where the documentation is required to prove such agreement has been reached (Abrahamson, paragraphs 42-36ff). This is clear from the dictum of Clarke J. in Moorview Developments Ltd v First Active plc [2009] 2 IR 788 at p. 819: “The most common example arises where it is asserted that a concluded agreement was reached as a result of the negotiations concerned. In those circumstances evidence relating to any aspect of the negotiations necessary to determine whether a concluded agreement was reached is excluded from the scope of without prejudice privilege.” 39. The reconciliation of these two sets of legal principles as they operate in parallel in the within proceedings is the matter to be determined by me. There is little authority in this regard but I was referred by the Respondent to the case of Re E [2020] EWHC 3379 (Fam).10 The case involved an application by a mother for the return of a child to the USA under the provisions of the Convention. The Respondent father in that case denied that the child was habitually resident in the USA and furthermore sought to rely upon the defences of consent and acquiescence. The mother sought to exclude material arising from mediation which had occurred between the parties while the father sought its admission and, indeed, sought non-party disclosure as against the mediator. The parties had separated and divorced while both were living in England and subsequently the mother formed a relationship with a US citizen and the issue of relocation of the child thus arose. The parties embarked upon mediation in 2019 with a view to resolving child arrangement issues between them. The mediation agreement, as in the present case, indicated that the mediation was confidential and non-binding. This process resulted in a detailed parenting plan being agreed and signed by the parties, which plan included the child’s relocation to the USA. This plan was executed and implemented by the parties. 40. Further dispute arose between the parties in relation to child arrangements and they again embarked upon mediation in 2020. The mediation did not, on this second 10 It must be remembered that Articles 8 and 30 of the Convention were not discussed in that case as the English Court was considering documentation arising in mediation which occurred in England and it is unclear if these documents came through the Central Authority or not. The judgment in Delmasso supports a lack of significance to this issue in the context of admissibility. occasion, result in agreement between the parties. The English High Court concluded that the concluded 2019 agreement was admissible as this did not: “… refer back to the discussions within the mediation. They refer to the terms of the parenting plan and, to a very limited extent, the inferences that can be drawn from it.” 41. In relation to the second 2020 unsuccessful mediation process, the Court concluded that the discussions within it must be excluded on the basis of privilege. The dicta of Deputy High Court Judge Samuels QC are instructive in the context of this application: “33. The public interest in promoting and supporting mediation to enable parents to resolve disputes about their children, without recourse to the court and contested litigation, is at least as strong today as it was when In Re D was determined in 1993. That public interest was reinforced by Williams J in the 2017 Re D, specifically in the context of a dispute under the Hague Convention. 34. The father does not seek to argue that disclosure of discussions between these parties within mediation is justified by reason of a significant risk of harm to E. Nor does he suggest that one of the other Unilever exceptions does or should apply. Instead, he proposes that mediation privilege or the 'without prejudice rule' should give way to the wider interests of justice, his right to a fair trial and a simple test of relevance. 35. In my judgment, the authorities relied upon by Ms Gilmore in support of that proposition are not really on point. There is undoubtedly a public interest in the court being able to "get at the truth" in the words of Baroness Hale in Re A. However, the pathway to the truth is unlikely to lie through disclosure of the otherwise privileged discussions within mediation. Parties must be free to discuss candidly all options for settlement and 'think the unthinkable' without fearing that their words will be used against them in any subsequent litigation. Mediators must be free to perform their valuable role without fearing they will be dragged into that litigation either by court orders for provision of their notes or to be called to give evidence for one parent and against the other. Otherwise, to paraphrase Lord Bingham MR, the mediation process is likely to fail. 36. There is undoubtedly a substantial body of civil law jurisprudence on the 'without prejudice rule', its scope and the exceptions that may apply. Parties may, of course, agree to waive the privilege. In Farm Assist Limited (in Liquidation) v The Secretary of State for the Environment Food and Rural Affairs (No. 2) [2009] EWHC 1102 the parties had agreed to waive any mediation or 'without prejudice' privilege so the issue turned on the more limited issue of confidentiality as it applied to the mediator's application to set aside a witness summons. That much is clear from paragraph 22 of the judgment of Ramsey J where he said: "the general rule is that without prejudice privilege is the privilege of the parties to the dispute which can be waived by those parties. It is not a privilege of the Mediator. As the parties in this case have clearly waived without prejudice privilege, the without prejudice exception to confidentiality no longer applies but this raises the question as to whether there is any other aspect of confidentiality which applies to a mediation." Ramsey J's comments about the wider interests of justice have to be seen in that context. No issue in this case has been raised or pursued about waiver or consent.” CONCLUSION 42. It seems to me on the evidence before me in the context of this motion (which derives solely from the Affidavits sworn in the motion) that: (
  3. a)There was a sufficient dispute between the parties to have the “without prejudice” privilege attach to their negotiations. There can be no issue of proximity to litigation in circumstances in which the Agreement to Mediate expressly envisages that the dispute may progress to litigation if resolution is not achieved. (
  4. b)Contrary to what is stated in the Applicant’s submissions, the evidence on Affidavit adduced on behalf of the Applicant in respect of this application does not support a concluded agreement having been reached or that the documents are sought to be used to prove such agreement. Both parties’ Affidavits reference the non-binding nature of the process. At no point in this Affidavit is it averred that there was a concluded agreement reached between the parties, indeed, the documentation stated to be appended to the quoted letter notably references “Agenda, Summary, Principles, Proposals, Next Actions and Addendum”. There is no reference to an Agreement. The Affidavit of the Respondent on the other hand is very clear in this regard (which averment is not disputed) “I say that no agreement was ever reached on either of those two occasions. I say that various issues around out daughter were discussed but nothing was finalised nor agreed. No document was ever signed.” (paragraph 8 Affidavit of E.F. sworn 5th June 2026.) (
  5. c)The Applicant’s Affidavit does not aver that the documentation is required to prove a concluded agreement rather the Applicant states that there is information in the documentation “of particular relevance to the facts in issue between the parties in the within application pursuant to the Hague Convention” (paragraph 9 Affidavit of Grainne Brophy sworn 13th May 2026). 43. I therefore conclude that these documents are privileged absent the Convention or the 1991 Act removing this status. 44. I entirely accept the purpose of Article 30 as referenced by the Applicant being “to ensure that procedural and evidential issues do not impede the swift resolution of child abduction cases.” This is clearly reflected also in the Guide to Good Practice – Part II Implementing Measures. Perez Vera likewise indicates that the Convention provisions are not focused upon “evidential value”. I further note that Delmasso referenced the need for a “flexible and sensible interpretation of Article 30”. 45. Courts have recognised that materials generated in the course of mediation are generally protected from disclosure and cannot be relied upon in subsequent Convention proceedings. In Re E (A Child) (Mediation Privilege) [2020] EWHC 3379 (Fam), a case arising within the Convention framework, the High Court of England and Wales confirmed that communications made during mediation, as well as the mediator’s notes, were subject to confidentiality and therefore inadmissible, emphasising the need for parties to negotiate candidly without fear that their statements would later be used against them. This position reflects the broader common law doctrine of “without prejudice” privilege, under which settlement communications are excluded from evidence absent waiver or established exception. Furthermore, the HCCH Guide to Good Practice on Mediation endorses confidentiality in mediation as a clearly desirable principle in international child abduction cases. 46. It appears to me that although Article 8(
  6. g)of the Convention permits an application to be accompanied by “any other relevant documents” and Article 30 provides that documents and information submitted to a Central Authority “shall be admissible” in judicial or administrative proceedings in Contracting States, this broad formulation does not displace ordinary rules of evidentiary admissibility, including mediation confidentiality and “without prejudice” privilege. It is my view that Article 30 must be interpreted as removing formal barriers to admissibility—such as requirements of legalisation, authentication, or strict proof of foreign documents—rather than displacing substantive rules of evidence. Different considerations may arise in the context of different evidentiary circumstances but in the context of the evidence being considered in this application, it does not abrogate established doctrines of privilege or confidentiality, including those applicable to mediation. This interpretation is supported by Re E (A Child) (Mediation Privilege) [2020] EWHC 3379 (Fam), in which the court, notwithstanding the Convention framework, excluded mediation communications and the mediator’s notes on the basis of confidentiality, while admitting only the final mediated agreement. Accordingly, although mediation materials may fall within the wide category of “relevant documents” for the purposes of Article 8(
  7. g)and may be transmitted and received under Article 30, their ultimate use remains subject to domestic evidentiary rules, with the result that negotiation communications generated in mediation are generally inadmissible, subject to usual exceptions which do not arise in the instant case. 47. I therefore will refuse the reliefs sought at Paragraph 2 of the Notice of Motion. 48. Any matters arising in respect of this decision, may be mentioned to me at a date convenient to Counsel, with full regard to the early hearing date currently assigned to the substantive proceedings.

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