For debate in the Standing Committee — see Rule 15 of the Rules of Procedure
21 November 2003
Family mediation and equality of the sexes
Social, Health and Family Affairs Committee
Rapporteur for opinion: Ms Milena Milotinova, Bulgaria, non registered
I. Conclusions of the committee
For the reasons given below, the Social, Health and Family Affairs Committee is in favour of the main recommendation made in the report, namely to urge the Committee of Ministers to revise the guidelines set out in its Recommendation on family mediation (No R (98) 1), which is already several years old (see the last paragraph of the draft recommendation).
The committee considers, however, that if such a revision were to be carried out, it should, in order to be useful and comprehensive, go beyond the scope of gender equality and take into account the developments that have occurred in the social and family sphere, in particular the emergence of children’s rights. It therefore proposes four amendments to this effect.
1. The committee would first like to congratulate the Committee on Equal Opportunities on its excellent report on family mediation, which, however, is confined solely to gender equality issues, since this is precisely the area for which that committee is responsible.
2. If there was one criticism it would be that the report is rather inflexible and too legal. Family mediation brings face to face men and women in situations of conflict, disagreement and communication breakdown. Very often the bone of contention is the child, who is caught up in the upheaval and should also participate in the mediation process because he or she is recognised as having rights. The child should be allowed a say if a solution is to be found that is genuinely in his or her best interests. It appears that in states’ current practices, mediators have few meetings with children in the course of the mediation process.
3. Family mediation finds its full justification in cases of conflict over children. Paradoxically, however, it is very often in just such cases that it proves impossible because the parties, imprisoned in mutual hostility, are unable to reach agreement.
The report argues that recourse to mediation must be voluntary, and indeed it is usually optional in most of the member states it which it is practised. But a question arises: should recourse to mediation not be mandatory in some cases, even if, to be enforceable, the final agreement will always require the support of the parties. Some countries have opted for this solution and have made recourse to mediation mandatory, particularly in divorce cases involving children below a certain age.
4. When children are involved, the scope of family mediation may cover, in particular, child custody or access arrangements, the decision, where appropriate, to place a child with a foster family or in an institution, etc; or in cases of, in particular, international abduction by one of the parents, its aim can be to negotiate the child’s return.
5. Mediation is in fact rarely, if ever, used at present in cases of international abduction of a child by a parent, owing to the difficulties raised by this issue. The report by the Social Affairs Committee on international abduction of children by one of their parents (Resolution 1291 (2002) and Doc 9476), for which Mr Hancock was rapporteur, recommended promoting “family mediation as a means of preventing parental child abduction…”.
6. This is just one example of the international dimension that a family conflict may have in the case of binational couples. This dimension is certain to increase as a result of globalisation and population movements. Mediation must therefore factor in this new reality.
7. It should also be stressed that in the countries of Europe, whose populations are made up of many different communities, questions such as marriage, separation, divorce or child custody are greatly affected by cultural values and very often by religious beliefs. To be effective, the assistance that can be provided through mediation must take account of this.
8. Mediators must therefore be trained. While they must be aware of equality issues, they must also take due account of children’s rights. The Social Affairs Committee has repeatedly called for training for professionals in children’s rights.
9. In conclusion, the Social Affairs Committee wished to draw attention to certain shortcomings - which are not really shortcomings given the report’s restrictive title - but which show the need for the broad field of family mediation to be the subject one day, if appropriate, of another report, produced this time by the Social Affairs Committee, which would take account of the children’s rights dimension, whose emergence is relatively recent.
III. Proposed amendments by the Social, Family and Health Affairs Committee to the draft Recommendation appearing in Doc 9983
a) In paragraph 6, add at the end: “When the bone of contention is the child, he or she should also participate in the mediation process because he or she is recognised as having rights. The child should be allowed a say if a solution is to be found that is genuinely in his or her best interests.”
b) In paragraph 9, 3rd line, add after the words “...so as to reflect the concerns and solutions put forward above” the words “as well as those necessary to hear children’s voices and to guarantee their rights”.
Reporting committee: Committee on Equal Opportunities for Women and Men
Committee for opinion: Social, Health and Family Affairs Committee
Reference to committee: Doc. 9333, Ref. 2689, 26.03.02
Opinion approved by the committee on 21 November 2003
Secretaries to the committee: Mr Mezei, Mrs Meunier, Mrs Karanjac, Mr Chahbazian
1 See Doc. 9983 tabled by the Committee on Equal Opportunities for Women and Mean