High Court refuses to admit mediation documents subject to ‘without prejudice’ privilege in child abduction proceedings

About this case:

• Citation:
  [2026] IEHC 394
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Nuala Jackson

Delivering judgment for the High Court, Ms Justice Nuala Jackson opined: “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.”

Background

In the course of proceedings seeking the return of a child, X, to England on the basis that there had been a wrongful detention of the child in Ireland, the applicant father issued a motion seeking an order that the documents prepared in the course of a mediation between the applicant and respondent would be admissible as evidence in the proceedings.

The mediation, which took place in England in 2025, addressed arrangements in respect of the parties’ children. There were no proceedings in being at the time, though it appeared that proceedings were contemplated if the mediation was unsuccessful.

The Agreement to Mediate, signed by both parties, stated that the process had been undertaken in the context of the parties having issues in need of settlement which they wished to resolve without going to court, that the mediator was a member of the College of Mediators, that the process was confidential and any terms of settlement would be “without prejudice”.

The parties were informed that the mediation process was not legally binding and that there was a privilege attaching to discussions between them in that context. The mediator, MR, was a qualified mediator but not a lawyer and did not have legal qualifications. There was some dispute as to whether or not the mediation was successful.

In the context of the proceedings, documents were received by the applicant’s solicitor from the Central Authority in Ireland which had received such documents from the Central Authority for England and Wales. Those documents included inter alia documents associated with the mediation process which had occurred.

In the context of the motion, it was averred on behalf of the applicant that the contents of certain of the documents, which had originally been provided to the parties’ under cover of a letter which stated that the contents were “legally privileged”, were of particular relevance to the facts at issue between the parties in the substantive proceedings.

The parties’ positions

The applicant father contended that the mediation documents were admissible having regard to Articles 8 and 30 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 and section 5 of the Child Abduction and Enforcement of Custody Orders Act 1991, that the legislative mediation privilege conferred by s.10 of the Mediation Act 2017 did not arise as the mediation occurred in England, and that no privilege attached to the mediation by virtue of the common law per se and that the rules attracting “without prejudice” privilege were not satisfied in this instance.

The applicant also argued that legal privilege did not apply as the mediator was not a lawyer.

The respondent accepted that s.10 of the 2017 Act did not apply, but argued that reliance on Article 30 of the Convention could not be used to circumvent the admissibility of documents in the courts of the country of habitual residence where they are clearly privileged. 

In this regard, the respondent suggested that Article 30 relates to the nature of the authentication of documents, rather than their legal admissibility.

The High Court

Ms Justice Jackson considered that the motion raised a “novel and important issue” concerning the application of rules relating to confidentiality within a mediation process and/or “without prejudice” negotiations and/or legal privilege in the context of child abduction proceedings and the applicable rules where an Irish court is asked to consider the application of these rules in the context of a mediation or “without prejudice” negotiations which occurred in England.

Having considered the parties’ submissions and the relevant legal principles, Ms Justice Jackson determined that having regard to the Agreement to Mediate, there was no issue of proximity to litigation in circumstances where it was expressly envisaged that the dispute could progress to litigation if resolution was not achieved.

The judge also recognised that there was a sufficient dispute between the parties to have “without prejudice” privilege attach to their negotiations.

Contrary to the applicant’s contentions, the court found insufficient evidence of a concluded agreement having been reached or that the documents were sought to prove such an agreement, such that the “without prejudice” privilege would not be engaged.

In those circumstances, the court concluded that the documents were privileged, absent the Convention or the 1991 Act removing that status.

As to Article 30 of the Convention, which states inter alia that an application submitted to the Central Authorities or directly to the judicial authorities of a contracting state, together with the documents and other information appended thereto, shall be admissible in the courts or administrative authorities of the contracting states, Ms Justice Jackson accepted that the purpose of the article was “to ensure that procedural and evidential issues do not impede the swift resolution of child abduction cases”.

Noting that the 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, the judge expressed her 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.”

The High Court continued:“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.”

Finding that interpretation to be supported by Re E (A Child) (Mediation Privilege) [2020] EWHC 3379 (Fam), the court concluded that although mediation materials may fall within the wide category of “relevant documents” for the purposes of Article 8(g) of the Convention 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”.

Ms Justice Jackson concluded that no such exceptions to “without prejudice” privilege arose in the case before her.

On the issue of whether legal professional privilege attached to the documents, the court observed that legal professional privilege arises in relation to documents prepared by lawyers in the course of advising their clients and that it was not in dispute that there was no lawyer involved in the mediation process under consideration.

Conclusion

Accordingly, the High Court refused the reliefs sought.

A.B.C.D. v E.F. [2026] IEHC 394