N and A (1996 Hague Convention: Costs)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Lewison |
| Judgment Date | 25 July 2023 |
| Neutral Citation | [2023] EWCA Civ 887 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-000933 |
[2023] EWCA Civ 887
Lord Justice Lewison
and
Lord Justice Baker
Case No: CA-2023-000933
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mr Justice Francis
FD23P00226
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant appeared in person
Michael Gration KC and Kitty Broger-Bareham (instructed by Bindmans LLP) for the Respondent
Hearing date: 26 May 2023
Approved Judgment
This judgment was handed down by the judges remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 2:00pm on 25 July 2023.
On 9 June 2023, this Court allowed an appeal against an order made by Francis J in proceedings under the inherent jurisdiction brought by a mother in respect of her three children, aged respectively six, four and two. Our judgment is reported as Re N and A (1996 Hague Convention: Article 13) [2023] EWCA Civ 623. The successful appellant was the children's father. He now seeks an order for costs against the mother.
The issue arising on the appeal was whether Francis J had jurisdiction to order the return of the children to this country and involved consideration of the provisions relating to jurisdiction in Chapter II of 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 (“the 1996 Convention”).
The background, much of which is disputed, is summarised in paragraphs 9 to 23 of our earlier judgment. In short, this is a Ukrainian family. In March 2022, they came to this country and subsequently an application was made for leave to remain here under the Homes for Ukraine Scheme. In October 2022, the father took the children to Thailand and then back to Ukraine. The mother contended that the father had abducted the children. The father stated that the mother had given her consent. Over the next six months, the children lived in their former family home in Kyiv and returned to their pre-school. The mother visited them in that country on several occasions, but otherwise remained in England. In March 2023, the mother applied via the English Central Authority for the return of the children to this country under the 1980 Hague Child Abduction Convention, but at the date of the appeal hearing that application had not yet been issued in the Ukrainian court. In May 2023, the father took the children to Poland and then came to this country. The mother filed an application under the inherent jurisdiction for the summary return of the children and obtained a location order under which the father's passport was seized by the Tipstaff. After two interim hearings, the application came before Francis J on 17 May 2023. On behalf of the father, it was submitted that under the provisions of the 1996 Convention the English court had no jurisdiction. Francis J made no finding as to jurisdiction or on the disputed claim of abduction but made an order for the mother to go to Warsaw to collect the children forthwith. He further ordered that the mother and children's passports be released to the mother's solicitor and that the father's passport be released to his solicitors to be held by them to the order of the court.
By the date of the appeal hearing on 9 June, the children had been returned to Kyiv, apparently by their paternal grandfather. The order for the return from Warsaw was therefore no longer capable of being implemented. The parties were, however, unable to reach an agreement as to the terms of a final order and we therefore proceeded to hear the appeal, albeit at a hearing that was rather shorter than it would have been had it been fully contested. On appeal, we held that under Article 13 of the 1996 Convention the English court was required to abstain from exercising such jurisdiction as it might have under Article 5 unless and until the Ukrainian court declined jurisdiction under Article 13(2). We therefore set aside the orders for the return of N and A to this country, and stayed the proceedings in relation to them under the inherent jurisdiction. We were not persuaded that the judge had been wrong to make the order about the father's passport, but endorsed an agreement reached by the parties that, in view of the change of circumstances, the passports should be returned to the father so that he could return to Kyiv and resume caring for the children pending any determination by the Ukrainian court.
Following the hearing, an application for costs was submitted by solicitors who had acted for the father during the proceedings in which it was asserted that the mother's conduct of the proceedings had been unreasonable, in particular by pursuing her application after it had become clear that jurisdiction lay with the Ukrainian court as there were prior proceedings in that country and by refusing to concede the appeal when it became clear that it was academic and that the order would have to be set aside. Subsequently, the...
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