Re- X (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Peter Jackson,Lord Justice William Davis |
| Judgment Date | 19 August 2022 |
| Neutral Citation | [2022] EWCA Civ 1167 |
| Docket Number | Case No: CA-2022-000962 Case No: CA-2022-001215 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1167
Lord Justice Moylan
Lord Justice Peter Jackson
and
Lord Justice William Davis
Case No: CA-2022-000962
Case No: CA-2022-001150
Case No: CA-2022-001215
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
SIR JONATHAN COHEN
ZC20P01401
Royal Courts of Justice
Strand, London, WC2A 2LL
Will Tyler QC and Edward Devereux QC (instructed by Vaitilingam Kay Solicitors) for the Appellant/First Respondent Father
Teertha Gupta QC, Jacqueline Renton and Helen Williams (instructed by Family Law in Partnership) for the First Respondent/Appellant Mother
Christopher Hames QC and Clarissa Wigoder (instructed by Freemans Solicitors) for the Second Respondent
Hearing date: 26 July 2022
Approved Judgment
This judgment was handed down by the Judge 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 10:30 on 19 th August 2022.
This judgment deals with two separate matters. It addresses, first, the father's and the mother's appeals from orders made by Sir Jonathan Cohen (“the judge”) on 13 May 2022 in the course of long-running proceedings concerning the parties' children, P, aged 16 and T, aged 5. I gave permission to appeal in respect of both appeals.
Secondly, it addresses, briefly at the end, an application for permission to appeal from an order made by the judge on 10 June 2022 refusing the father's application for, the equivalent of, a legal services payment order in respect of the children proceedings. I listed the application for permission to appeal, with the appeal to follow, at the conclusion of the hearing of the above appeals.
As to the appeals from the order of 13 May 2022, the father appeals from the summary dismissal of three applications dated 12 May 2022: (i) for a stay of the order made by the judge on 28 April 2022 by which he had provided for T's passports to be released to the mother on certain recitals/agreements; (ii) to set aside the order made by the judge on 12 January 2022 by which he recognised a parental responsibility order made by a court in Russia on 18 March 2021; and (iii) for substantive child arrangement orders, including a prohibited steps order, under the Children Act 1989 (“the CA 1989”) in respect of T.
The father also appealed from, and sought a stay of, the provision in the order of 13 May 2022 which authorised the mother's solicitors to release T's passport (which they were holding pursuant to an earlier order) to the mother as from 11.30am on 18 May 2022. By my order, dated 17 May 2022, I stayed that provision “with the effect that the mother's solicitors must continue to hold the child's … passports”. Despite that order, of which she was aware, the mother travelled to Russia with T on the afternoon of 18 May 2022, having obtained alternative travel documents from the Russian Embassy, and has remained there since then.
The father advances two grounds of appeal, namely: (1) that the judge was wrong summarily to dismiss his applications at the first directions hearing; and (2) that the judge was wrong to determine that the applications “did not add anything new to what (the judge) had considered previously”; in other words, that the judge was wrong to determine that the applications were without sufficient merit to justify their continuation.
The mother appeals the provisions in the 13 May 2022 order: (a) that, in the event of the parents being unable to agree, the judge would determine on written submissions what contact should take place between the father and T in June and July 2022; and (b) that, for the purposes of contact, the mother must return T to England by no later than 15 June 2022 where T was required to remain until at least 25 June 2022.
The mother contends that the judge had no jurisdiction to make the orders which he did.
The father is represented by Mr Tyler QC and Mr Devereux QC (the latter appeared at the hearing on 13 May 2022). The mother is represented by Mr Gupta QC (who also appeared at the hearing on 13 May 2022), Ms Renton and Ms Williams (who appeared at the hearing on 10 June 2022). The child, P, is represented, for the purposes only of the appeals from the order of 13 May 2022, by Mr Hames QC and Ms Wigoder. The child was not represented at the hearing on 13 May and had not been served with the applications.
At the outset of the hearing, the court sought clarification from Mr Hames as to whether it was necessary for his client to be represented for the purposes of this appeal. We sought this clarification because it did not appear to us that she had any distinct interest in the outcome of the appeal or certainly none which required her representation at this hearing. However, Mr Hames indicated that he was instructed to appear largely it seemed because of P's concerns about her family's welfare in which she was “intrinsically involved”. In due course we heard oral submissions from Mr Hames which, with his written submissions, confirmed my initial view that P need not have been represented at this hearing and, indeed, may have become overly involved in the proceedings.
This is the second time this case has been to the Court of Appeal. The previous decision, which dealt purely with an issue of law, is reported as: Re X (Children) (Article 61 BIIa) [2022] 1 FLR 301.
At the end of the hearing, we informed the parties that their respective appeals from the order of 13 May 2022 would be dismissed. I set out below my reasons for agreeing with that decision.
Background
I propose to set out only a very short summary of the background history starting in 2020.
The father began divorce proceedings in England on 21 September 2020. This led to the mother bringing divorce proceedings in Russia on 13 October 2020. As noted by Thorpe LJ in Golubovich v Golubovich [2011] Fam 88, at [93], in respect of competing divorce proceedings: “As a generalisation it is only the rich who fight to establish priority. There is no incentive to fight but financial advantage”. I would add the word “perceived” before “financial advantage” because, although the wife ultimately obtained a divorce in Russia, this inevitably led to the husband being given leave to make a financial application under Part III of the Matrimonial and Family Proceedings Act 1984. I would also note that the wife obtained the divorce in Russia despite the English court having made an order prohibiting her from taking any further steps in those proceedings and requiring her to seek a stay.
There were also competing parental responsibility proceedings. The father commenced proceedings in England for orders under the CA 1989 on 9 November 2020. The mother issued applications in Russia on 28 October 2020, 13 November 2020 and 24 November 2020. The mother issued more than one application because her first application was, at least initially, rejected on the basis that the court was not satisfied that it had jurisdiction. What happened procedurally in respect of the mother's proceedings in Russia was in dispute between the parties.
On 1 March 2021, Nicholas Cusworth QC, sitting as a deputy High Court judge, decided, in essence, that the father's application under the CA 1989 was governed by the 1996 Hague Child Protection Convention so that, if the Russian court accepted parental responsibility jurisdiction, the lis pendens provisions (Article 13) of that Convention would require the English court to stay the father's application. That decision was overturned, in the judgment referred to above, because, at [92]:
“If the children were habitually resident in England and Wales when the English proceedings commenced, BIIa applies to them, including the jurisdiction provisions, and Art 13 of the 1996 Hague Convention does not apply.”
The Russian court made a substantive parental responsibility order on 18 March 2021. The mother was given custody of the children and was entitled to decide where they lived. The father's appeals in Russia (from the first instance decision and from the dismissal of that appeal) were dismissed. On 11 June 2021, the mother issued an application in England for the recognition of the order of 18 March 2021. The father applied on 14 June 2021 for its non-recognition.
The hearing of the father's application for a child arrangements order and the parties' respective applications in respect of the Russian order took place before the judge in November and December 2021. By that stage, P had been joined as a party to the proceedings (by an order made on 6 July 2021). The judge gave judgment on 12 January 2022. He determined that the children were habitually resident in Russia on 9 November 2020, when the father issued his application in England for parental responsibility orders. Accordingly, the court lacked jurisdiction in respect of that application. He also decided that the Russian court's order of 18 March 2021 should be recognised and enforced.
In the course of his January 2022 judgment, the judge summarised the parties' respective cases on the issue of habitual residence. The father emphasised the children's connections with England, while the mother emphasised their connections with Russia. The case advanced on behalf of P was that her “centre of interests remains in Russia”. It was also said, as set out in a list of eight factors in the judgment, to which the judge made “particular reference”, that she “wants to return to Russia at the end of the academic year (and) then envisages doing what is the Russian equivalent of A levels”. As referred to above, the judge decided that both children were habitually resident in Russia as at 9 November 2020.
The judge also addressed the father's case that the Russian order should not be recognised...
To continue reading
Request your trial
-
Lazaros Panagiotis Xanthopoulos v Alla Aleksandrovna Rakshina
...The husband's appeal against Cohen J's dismissal of his Children Act applications, was subsequently dismissed on 19 August 2022 at [2022] EWCA Civ 1167 and the stay was 29 There remains a breach in the relationship between the husband and A and he has not seen S since May 2022. 30 I refer ......