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Hague Convention 1996

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  • The father appealed from an order determining that the proceedings concerning the parties' children were subject to the 1996 Hague Convention for the purposes of the lis pendens provisions in article 13. The father had commenced proceedings in England and Wales, while the mother had commenced proceedings in Russia. The father contended that the 1996 Hague Convention did not apply to the English proceedings because of the effect of article 61 of Council Regulation (EC) No 2201/2003 (Brussels IIa). His case was that the children were habitually resident in England and Wales when those proceedings commenced, and thus, as set out in article 61, Brussels IIa applied. He submitted that the judge had misinterpreted articles 61 and 62 of Brussels IIa. In Moylan LJ's view, the outcome was clear. If the children were habitually resident in England and Wales when the English proceedings commenced, Brussels IIa applied to them, including the jurisdiction provisions, and article 13 of the 1996 Hague Convention did not apply. Newey LJ and Baker LJ agreed. The appeal was allowed and the judge's determination was set aside. Judgment, 24/08/2021, free
  • The Swiss father applied under Article 8 of the 1996 Hague Convention for jurisdiction to be transferred to Switzerland, where the two-year-old daughter currently lived with him. The application was opposed by the British mother and the guardian. It was agreed that the daughter had been abducted from England in June 2020, when the paternal grandparents had paid for a private jet to take the father and daughter to Switzerland. The mother had not seen the daughter in person since August 2020. Arbuthnot J found that the court could not transfer these proceedings under Brussels IIa, and Article 8 of the Hague Convention did not apply in a case of wrongful removal unless the conditions in Article 7(1)(a) or (b) had been met. In her judgment, the courts here were better placed to determine the daughter's best interests. Delay was also a significant factor: this was a very young child, and her living arrangements should be determined much sooner than Swiss proceedings would allow. If there was a discretion to transfer under Article 8, Arbuthnot J would not have exercised it. There was no alternative power to transfer under the Family Law Act, and if there were, she would have exercised her discretion to not transfer the proceedings. The question of contact would be decided separately. Judgment, 29/04/2021, free
  • A hearing that had been listed for consideration of issues of contact between the father and the children, "subject to a review of the English court's position in the event that the Russian court accepts jurisdiction". There had since been a hearing of several days' duration before a court in Russia, which had clearly decided that it had jurisdiction to make substantive orders in relation to the children, that the children were habitually resident in Russia (notwithstanding that they were attending schools during term time in England), and that the children should reside with their mother at a place of their mother's choosing. In Holman J's view, he was obliged to "abstain" from exercising further jurisdiction over any matters which clearly fell within the territory of the Russian proceedings and judgment, though he noted that the father was appealing the previous order of the Family Court. With those appeals in mind, he declined to make an order permitting the mother's solicitors to release the passports: the mother had frankly said that if she were able to return with the children to Russia she would keep them there and not permit them to travel again to England until she was quite confident that she would not be "ensnared" by further legal proceedings. Judgment, 19/04/2021, free
  • The father appealed against an order for the two children to be returned to Russia. Moylan LJ, Peter Jackson LJ and Arnold LJ decided that both the father's appeal regarding habitual residence and the mother's cross-appeal regarding repudiatory retention would be dismissed, but that the judge's order made under the inherent jurisdiction would be set aside. When the 1996 Hague Convention applied, recourse could only be had to the inherent jurisdiction if permitted by the code established by the Convention. Here, there was no gap in the scheme of the Convention to justify exercising the court's inherent powers. The right course was for the mother's application for enforcement of the Russian court's order to be determined as soon as possible. Judgment, 03/12/2019, free
  • The father had applied for the return of the children from Ukraine, where they had been kept for ten months. Mostyn J had stayed the application, in anticipation of the Ukrainian court reinstating the father's application there. This did not happen, so the stay was lifted and the application would be heard. Directions were given, but the judge also urged the parties to explore a mediated solution to the case. Judgment, 21/06/2019, free

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