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X (Children)(Article 61 Biia) [2021] EWCA Civ 1305

This case concerned the interrelationship between Council Regulation (EC) No 2201/2003 (“BIIa”) and the Hague Convention of 19 October 1996 on Jurisdiction, Applicable law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Hague Convention”).

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The father appealed from an order in which the Judge determined the proceedings brought under the Children Act 1989 concerning the parties' children are subject to the 1996 Hague Convention for the purposes of the lis pendens provisions in article 13.

The father issued Children Act 1989 proceedings for CAO and PSO on 9 November 2020 (filed on 6 November 2020), and the mother disputed jurisdiction of this court on the basis that the children were habitually resident in Russia and not England and Wales. The question of habitual residence has not yet been determined. The Russian court had (eventually) allowed the mother's application seeking residence orders, first issued on 28 October 2020.

The Judge decided the Russian proceedings were first in time. The English proceedings were parental responsibility proceedings "potentially" within the scope of BIIa and proceedings for measures of protection "potentially" within the scope of the 1996 Hague Convention. The Russian proceedings were within the scope of the 1996 Hague Convention [para 14].

At a hearing in January 2021, the mother argued Article 13 of the 1996 Hague Convention operated to require a stay of  the father's Children Act proceedings in this court. Article 13 provides that the authorities of a Contracting State with jurisdiction under Articles 5 to 10 must abstain from exercising jurisdiction if at the time of commencement of proceedings, corresponding  measures have been requested  from the authorities of another Contracting State and are still under consideration.

The Court was required to carefully consider Article 61 and 62 of BIIa. The lead judgment given by Lord Justice Moylan sets out a detailed analysis of the interrelationship between BIIA and the 1996 Hague Convention. The Court concluded [§80-92]:

• Article 61(a) provides that BIIa "shall apply" if the subject child has his or her habitual residence in a Member State. Subject to the question of habitual residence, the courts of England and Wales would have jurisdiction under Article 8 because it applies to "disputes involving relations between the courts  of a single member state and those of a third county, and not only relations between courts of a number of member states" [UD v XB CJEU (Case C-393/18 PPU) [2019] 1 WLR 3083 at [41]. BIIa therefore applies in this case if the children were habitually residence at the commencement of the English proceedings.

• Article 62 stipulates when the Conventions (various) listed in articles 59, 60 and 61 will "have effect" as a general rule, namely they will continue to have effect in "matters" (as opposed to proceedings) which are "not governed by the Regulation". Parental responsibility and jurisdiction are both governed by BIIa, it could include lis pendens provisions in article 19 but did not in this case because the other state was not an EU Member State.

• The "general rule" is that BIIa "takes precedence over other international conventions to which the Member States are party in so far as they concern matters governed by both". The examples given are that in a matter such as jurisdiction, which is governed by BIIa, the 1996 Hague Convention does not "continue to have effect", whereas applicable law is not governed by BIIA, so the Convention will "have effect'.

The appeal was allowed, and the judge's determination set aside. If the children were habitually resident in England and Wales when the English proceedings commenced, BIIa applies to them, including the jurisdiction provisions and article 13 of the 1996 Hague Convention does not apply [§92].

 

Case summary by Sarah Tyler, Barrister, Coram Chambers

For full case, please see BAILII