Child Custody Disputes in Finland: The Primacy of Mediation
Because of the expense, time consumption and mental strain that litigation often places upon its participants, alternative dispute resolution methods are often sought for family law matters. Mediation has proven a popular solution in Finland, as Anne Liakka outlines in this article. What advantages does mediation offer, and how can legal counsel work to enhance the process?
What are the principles of Finnish legislation regarding children?
Finland has in place a Child Custody and Right of Access Act designed to find a solution that is in the best interest of each individual child when decisions are made on child custody, residence and right of access. The Child Maintenance Act stipulates that a child is entitled to be supported by the parents until he/she reaches the age of 18. Parents are responsible for their child’s maintenance according to their resources, and under Finnish law, the parent who has access to the child is usually required to pay maintenance to contribute towards the child’s living expenses.
One of the objectives of the Finnish Child Welfare Act, as amended in 2019, is to protect children from becoming unwitting victims of disputes between parents. In child care and custody proceedings, it is the parents who are the actual interested parties to the case, but the law includes provisions requiring that the opinion and wishes of the child be ascertained, usually in the form of a report prepared by the social services in response to a request from a district court.
How are decisions on a child’s situation made when their parents are divorcing?
Finnish law does not contain provisions on any mandatory agreement on the arrangement of a child’s circumstances in case of parental separation. After a divorce, the parents may make a spoken or written agreement on child care and custody, access rights, residence and maintenance. Alternatively, they may draw up a written agreement on these matters in consultation with the local child welfare officer, who is responsible for ensuring that the agreement is in the best interest of the child. An agreement prepared by the child welfare officer is legally enforceable, just like a court decision.
If the parents fail to reach an agreement on the child’s circumstances, the final decision will be made by a court of law. In Finland, the majority of parents are able to reach on agreement on child-related matters, but about 4-5% of cases concerning custody, rights of access and residence are taken to court. More than half of the care and custody disputes ending up in courts relate to demands to amend a previous agreement or court decision.
Court proceedings on child care and custody differ from the procedure applied in regular civil cases. Courts are duty-bound to look after a child’s future best interests, which imposes a number of special requirements on the legal process. Child care and custody proceedings are initiated in response to an application filed by one of the parties.
More than half of the care and custody disputes ending up in courts relate to demands to amend a previous agreement or court decision.
Alternatively, instead of going to court, child custody cases can also be addressed in court-administered mediation. In fact, mediation is the most significant procedural reform in Finland in hearing contentious child custody cases, based on an experiment carried out in courts in the 2010s. The process, also known as Follo mediation after its Norwegian origins, has become a popular and effective way of resolving disagreements between parents without exhausting litigation. After all, the system was specifically tailored to provide a better procedure for hearing child care and custody cases. Mediation aims at a lasting parental agreement that is in the best interest of the child.
Another benefit of mediation is that reconciliation between parents promotes the well-being of the child and ensures that the child maintains a relationship with both parents. Mediation may also improve parental relations and communication unlike litigation, which tends to foment conflict and distrust between parents and is never a sound and appropriate option for the family or the child and his or her future prospects.
Mediation can address parental disagreements concerning the child’s residence, rights of access and maintenance. Additionally, mediation can resolve a number of issues relating to the child’s daily life that could not be dealt with in court. A case can also be referred to mediation in mid-proceedings. If so, the proceedings are adjourned to await the outcome of the mediation.
The mediator is a judge specialising in family law matters, assisted by a parenting and child development expert, usually a psychologist or social worker. The mediating judge is not the same judge who hears the custody dispute in court. The expert is involved in the process in order to ensure that mediation addresses all the key issues and that the final agreement is in the child’s best interest. In the past, such a multi-professional approach was rare in courts, but mediation has provided solid evidence that it helps judges and lawyers gain new insights into child development and welfare when working together with the experts participating in mediation.
One of the benefits of mediation for parents is that the judge and the expert adviser are able to pool their skills to help the parents arrive at a solution that is in the best interest of the child. To reach an agreement in the course of mediation, parents are asked questions that prompt them to consider circumstances that are central to the child’s best interests. The purpose of the questions is to encourage parents to find a solution that is best for their child in that particular situation.
Mediation is the most significant procedural reform in Finland in hearing contentious child custody cases, based on an experiment carried out in courts in the 2010s.
A key principle of mediation is that it is voluntary and is only initiated with the consent of both parties. They must genuinely want mediation and have the right to end it at any point without having to disclose any reason for it.
Mediation is informal and conversational, and parents can engage a legal adviser for support. The role of a lawyer in mediation is also completely different from that of a lawyer in court. The legal adviser serves as a participant in the mediation process and is also responsible for trying to maintain as amicable an atmosphere as possible between the parents and for negotiating with the client in order to contribute to reconciliation.
The outcomes of Follo mediation range from a comprehensive to partial agreement or failure. If the parties reach a comprehensive agreement, the court proceedings will be closed. Any pending legal proceedings will also be terminated. If the mediation is unsuccessful and the case is pending in court, the proceedings will be resumed to proceed from the point reached when mediation started. If the agreement is only partial, the court will only continue to address the parts of the agreement that remain in dispute.
A settlement reached in mediation is equivalent to a court decision or judgment. However, a court of law may not affirm a settlement if it is unlawful, manifestly unfair or would infringe upon the rights of a third party. Any affirmation of an agreement on child custody, rights of access and maintenance is also governed by the provisions of the Child Custody and Right of Access Act and the Child Maintenance Act. In other words, the agreement to be confirmed must be in the best interests of the child.
Compared to a court case, mediation is perceived to offer an additional advantage in that, instead of a district court judge, the decisions are made by the parents themselves who will also have to live with the settlement at which they arrive. Moreover, mediation allows the parties to take up matters that are important to them, even if they are not relevant from a legal point of view. As a process, mediation is flexible and allows the parents to express their emotions.
Compared to a court case, mediation is perceived to offer an additional advantage in that, instead of a district court judge, the decisions are made by the parents themselves
A further advantage offered by mediation is that it is forward-looking and focuses on the common interests of the parents, whereas in court proceedings past events are submitted as evidence and the objective is to prove that the other party’s position is ill-founded. In process terms, mediation is much quicker than court proceedings because, if possible, the mediation session is held within six weeks of the date when the decision to start mediation is made.
What is the attorney’s role in court-administered mediation?
It is quite common to rely on a legal adviser in mediation because most child custody disputes are referred to mediation while court proceedings are in progress, which means that the parents have already engaged a legal adviser. Parental separation can be complex and emotionally draining, but even in difficult disputes, a settlement or partial settlement can be reached, making it easier to deal with the case in court later on.
The legal adviser’s role is crucial in mediation, as he or she is called upon to help the parties reach an amicable solution. Legal advisers also play a major role as to whether the case ends up in mediation in the first place, as they are called upon to assess the suitability of the case for mediation, recommend mediation to their clients at an early stage as well as to inform them about the benefits and possibilities offered by mediation.
Legal advisers are to support the client in the mediation process and help reduce the stress and uncertainty experienced by them. The legal adviser explains to the client what is happening in mediation, what the various potential solutions are and what they mean, and what the client can realistically expect. At the same time, he or she is required to intervene if a parent behaves inappropriately and reassure them if necessary.
A legal adviser is often better qualified than the client to identify the client’s interests, because the conflict can affect the client’s ability to comprehend the situation and see further into the future. If the client’s wishes conflict with the best interests of the child, the legal adviser can help the client understand the child’s specific interests in the given situation, even if it means that the client needs to compromise. The legal adviser’s role is to work with the parent to explore options and make constructive suggestions to find a lasting solution.
Anne Liakka, Founder
Erottajankatu 15–17, 00130 Helsinki, Finland
Tel: +358 92516 6310
Anne Liakka is partner and founder at Liakka Oy Attorneys-at-Law, a law firm specialising in family and estate law in the heart of Helsinki. Founded by Anne at the beginning of 2022, the firm offers clients a wide range of services in all aspects of family law. Instead of litigation, the team encourages and aids clients in finding amicable and lasting resolutions. The firm also offers family and estate law services with international implications.