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AA and BB [2021] EWFC 17

Decision of Mr Nicholas Cusworth QC sitting as a Deputy High Court Judge on 17 February 2021 considering Article 13 of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (“The 1996 Convention”)


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Before the Court was an application by the mother for a stay of the father's proceedings under Article 13  of the 1996 Convention on the basis of ongoing applications in Russia relating to the children's welfare.
 
The mother was born and raised in Russia. The father was born in Russia but moved to an EU member state as a child and was a national of that state. The parties had property in London and in Russia, where the mother's principal business interests lay. The parties had two children, both at school in London.  At the time of the hearing there was litigation between the parties both in relation to the children and finances, albeit it was the issue of jurisdiction over the children that came before this Court.
 
As regards the mother's applications to the Russian Court, whilst the mother's initial applications had been rejected, they were ultimately accepted. It was of significance, that by the date that the father had filed his application, the mother had filed her original application. It was also significant and a fact that was established during the hearing in reply to a question "drafted over lunch", that at the time matters came before this Court, the Court in Russia had not yet determined the question of the children's habitual residence and so accepted jurisdiction in the welfare proceedings.
 
The father's response to the mother's application for a stay, inter alia, was that Article 13 did not apply.  Instead Article 61 of Council Regulation (EC) No 2201/ 2003 ("BIIR") applied, his application being issued prior to the conclusion of the transition period, and accordingly, the court could not impose a stay, the lis pendens rules in BIIR applying only to issues between contracting states, one of which Russia was not.
 
Whilst the Court ultimately considered that now was not the time to take the decision to defer the determination of whether it has jurisdiction, acknowledging that "(w)ith truly international children such as these, the position may well remain fluid for some time [paragraph 59], the judgment affords guidance to practitioners on the application and interpretation of Article 13 and the following paragraphs are highlighted.
 
As regards the application of Article 13 and the father's contention that this case fell into a rather "unsatisfactory lacuna", Mr Nicholas Cusworth QC disagreed and said this:


24. …I am quite satisfied tha(t) this case does not fall into the unsatisfactory lacuna which Mr Harrison says is the inevitable consequence of his interpretation of Article 61. Rather, the situation here is not
'governed by' Article 19 of the Regulation, but by contrast is undoubtedly governed by Article 13 of the
1996 Hague Convention, involving as this case does a lis pendens issue between the UK and a 1996 Convention country that is not a signatory to BIIR.

 


27. … Finally on this issue, I note that with effect from 2022, the recasting of BIIR will provide expressly for this situation under what will become Article 97(2), which will provide that:

(c) where proceedings relating to parental responsibility are pending before a court of a State Party to the 1996 Hague Convention in which this Regulation does not apply at the time when a court of a Member State is seised of proceedings relating to the same child and involving the same cause of action, Article 13 of that Convention shall apply.


That prospective provision serves in my view to confirm the above interpretation of the current situation, and that a purposive interpretation of the current unspecific provision is entirely justified.
 
As regards the interpretation of Article 13, there was a dispute regarding the time at which "measures still being under consideration" must be measured. The Court concluded thus: 
 

37. ….Mr Harrison says that the natural construction of the words is that they must relate back to the phrase 'at the time of commencement of proceedings', whereas Mr Gupta suggests that it must refer to the time when the court hears the application for a stay to be imposed. The explanation of Article 13 set out in the Practical Handbook on the operation of the Hague Convention 1996 at para 4.32 would tend to support this later position, in that it makes clear that the Article applies:
'…for as long as the proceedings in respect of the "corresponding measures" in the other Contracting State are still under consideration.'

38. However, the Lagarde Explanatory Report in relation to the 1996 Convention at [79] restates the import of this paragraph thus:
The authority having jurisdiction under Articles 5-10 should abstain from deciding on the request for measures with which it has been seised if corresponding measures have been requested from the authorities of another Contracting State which then had jurisdiction under the same Articles 5-10, such measures then being still under examination.

39. The use of the word 'then' both in relation to the second state having jurisdiction, and the measures being still under examination, might suggest that the same temporal requirement applied to both. However, I note that the French version of the report uses 2 different words, both rendered into English as 'then' – 'alors' for the possession of jurisdiction, 'encore' for the measures being under examination – which might more naturally have been rendered as 'still' – the word in the Practical Handbook. That would tend to support Mr Gupta's position, which I prefer of the two. Ultimately, I suspect that the drafters of this clause did not expect that there would be a substantial difference between the time when the second set of proceedings were commenced, and the time when the requirement to impose a stay arose. Even if I am wrong in this, however, my overall determination of this issue would not be affected, as I will explain.
….

46. … I consider that even if I am wrong about the time for application of the phrase "are still under consideration" for the purposes of the Convention, the Russian proceedings were sufficiently extant on 6 November to qualify as being under consideration for the purposes of Article 13 (1).
….
52. I consider that,…. the proceedings would only cease to exist, and matters would only cease to be under consideration for the purposes of Article 13, once the usual time for appeal of any order dismissing or rejecting the proceedings had expired. If that time had expired, then no proceedings would exist from that point, and the circumstances of a prior request still being under consideration would not be met.

 

Case summary by Georgina Rushworth, Barrister. Coram Chambers 
 
For full case please see BAILII