Re N and A (1996 Hague Convention: Costs)
[2023] EWCA Civ 887
N and A (1996 Hague Convention: Article 13)
9 June 2023
[2023] EWCA Civ 623
Court of Appeal
A mum tried to get her children back from their dad in England, but a court decided the dad's earlier request to a Ukrainian court meant the English court couldn't get involved. The kids' passports were given back to their dad, and only the case about the youngest child can go on.
Key Facts
- •A Ukrainian mother brought proceedings in the English Family Division seeking the return of her two older children (N and A) from Poland, where their father had taken them, and to prevent the father from removing their younger sibling (D).
- •The father had initiated proceedings in Ukraine concerning the children's residence before the mother's English application.
- •The English proceedings were brought under the inherent jurisdiction of the High Court.
- •The children were temporarily in Poland, then subsequently returned to Ukraine.
- •The 1996 Hague Convention on the jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children was applicable.
Legal Principles
The judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child's person or property.
1996 Hague Convention, Article 5(1)
In all cases of urgency, the authorities of any Contracting State in whose territory the child...is present have jurisdiction to take any necessary measures of protection.
1996 Hague Convention, Article 11(1)
The authorities of a Contracting State which have jurisdiction...must abstain from exercising this jurisdiction if, at the time of the commencement of the proceedings, corresponding measures have been requested from the authorities of another Contracting State...and are still under consideration.
1996 Hague Convention, Article 13(1)
Where the 1996 Hague Convention applies, recourse can only be had to the inherent jurisdiction if that is permitted by the jurisdictional code that that instrument establishes.
Re J (A Child) [2015] EWCA Civ 329, paragraphs 34 and 74
Outcomes
The appeal was allowed in part.
The English court lacked jurisdiction to order the return of children N and A under the 1996 Hague Convention due to the prior pending proceedings in Ukraine and the children's absence from England. The inherent jurisdiction could not override the Convention's provisions.
Orders for the return of N and A to England were set aside.
These orders were made without jurisdiction under the 1996 Hague Convention due to the father's prior application in Ukraine and Article 13(1).
Proceedings concerning N and A were stayed.
To comply with Article 13 of the Hague Convention, given pending proceedings in Ukraine.
Proceedings concerning child D continued.
Child D remained in England, and therefore the English court retained jurisdiction.
Passports for the father and children N and A, and birth certificates were to be returned.
To facilitate the children's reunification with their father in Kyiv, given that the children had been returned to Ukraine.