N and A (1996 Hague Convention: Article 13)
[2023] EWCA Civ 623
Re N and A (1996 Hague Convention: Costs)
25 July 2023
[2023] EWCA Civ 887
Court of Appeal
A mom tried to get her kids back from their dad in a different country. A judge initially sided with the mom, but the dad appealed and won. Even though the dad won the appeal, the judge said the mom wasn't unreasonable, so the dad didn't get his legal costs paid by the mom.
Key Facts
- •Appeal concerning costs in a Hague Convention case involving the return of children from Thailand and Poland to Ukraine.
- •Mother (appellant) initially obtained an order from Francis J for the children's return to England under the inherent jurisdiction.
- •Father (respondent) successfully appealed, arguing the English court lacked jurisdiction under the 1996 Hague Convention.
- •Children were returned to Kyiv before the appeal hearing, rendering the return order redundant.
- •Father sought costs against the mother for her conduct of the proceedings.
- •Mother argued for no costs order due to the usual practice in children's cases and her limited means.
- •The father's costs claim included solicitor and counsel fees, interpreter costs, accommodation, living expenses, and children's living expenses in Warsaw.
Legal Principles
In children's cases, the welfare of the child is paramount; costs orders are made only in exceptional circumstances.
Re T [2012] UKSC 36, Re S [2015] UKSC 20
Conduct must be reprehensible or unreasonable to justify a costs order; appealing after it's clear the appeal is academic may be relevant.
Sutton London Borough Council v Davis (No 2) [1994] 2 FLR 569, EM v SW, In re M (A Child) [2009] EWCA Civ 311, Re S [2015] UKSC 20
In child abduction cases, the usual order is no order as to costs; exceptions are made if a party's conduct is unreasonable or there's a disparity of means.
EC-L v DM (Child Abduction: Costs) [2005] EWHC 588 (Fam)
Legal aid status doesn't automatically limit costs awards in family proceedings; the paying party's means are relevant.
Legal Aid, Sentencing and Punishment of Offenders Act 2012
Article 13 of the 1996 Hague Convention requires English courts to abstain from exercising jurisdiction unless the Ukrainian court declines jurisdiction.
1996 Hague Convention
Outcomes
No order as to costs was made.
The mother's conduct was not reprehensible or unreasonable; her pursuit of the case was understandable given the circumstances and the judge's initial order. Her refusal to concede the appeal after the children's return was not deemed unreasonable.
The father's appeal was allowed; the order for the children's return to England was set aside.
The English court lacked jurisdiction under Article 13 of the 1996 Hague Convention.