K v K

Under Art 53(2) of the 1996 Hague Convention, recognition and enforcement provisions apply only to measures taken after the Convention entered into force between the state of origin and the requested state. An English court therefore lacks jurisdiction to register an earlier order where the Convention was not then in force between the relevant states.

In family proceedings, costs remain discretionary. An order may be justified by unreasonable conduct, including pursuing an application after repeated specialist advice that it had no prospect of success. The stringent requirement that costs be proportionately and reasonably incurred applies equally in family proceedings. A costs order may therefore be made, while excessive costs are substantially reduced on summary assessment.

The mother applied to register and enforce an order made by the Dzerzhinsky District Court of St Petersburg on 18 April 2013 concerning the parties’ daughter. On 16 March 2016, District Judge Robinson ordered registration under the 1996 Hague Convention.

The father appealed. The Convention entered into force in the United Kingdom on 1 November 2012 but in the Russian Federation only on 1 June 2013. The appeal therefore concerned whether Art 53(2) conferred jurisdiction to recognise and enforce the Russian order. The court also had to determine whether the mother should pay the father’s costs and, if so, the proportionate amount.

1. Appeal allowed. The order of District Judge Robinson dated 16 March 2016 was set aside. The mother was permitted to withdraw her enforcement application.
2. Art 53(2) of the 1996 Hague Convention provides that the Convention applies to recognition and enforcement of measures taken after its entry into force between the state where the measures were taken and the requested state. The Convention entered into force between the United Kingdom and the Russian Federation on 1 June 2013. The Russian order was made on 18 April 2013. The English court therefore had no jurisdiction to register or enforce it.
3. Applications for recognition and enforcement under the Convention fall within FPR 2010 r 28.1. The court has a wide discretion as to costs, exercised consistently with the overriding objective in FPR 2010 r 1.2(a). The general rule in CPR r 44.2(2) does not apply in family proceedings, but the court may consider conduct, partial success, settlement offers and disparity of means. Reprehensible behaviour or an unreasonable stance may justify departure from the usual practice of making no costs order.
4. The mother acted unreasonably by continuing the application after repeated, clear advice from specialist junior and leading counsel that it had no prospect of success, and by refusing to compromise the costs issue. The court was not persuaded that conflicting Russian advice, alleged disparity of means or the wider welfare dispute made a costs order unjust.
5. The stringent proportionality test applies equally in family proceedings. Costs must bear a reasonable relationship to the complexity and importance of the litigation and to the lowest sum reasonably required for proficient conduct. The claimed £38,813 was disproportionate to the single, straightforward jurisdictional issue. Costs were summarily assessed at £3,737.50, payable within 28 days.

1. High Court (Family Division): K v K [2016] EWHC 2002 (Fam). The father’s appeal was allowed, the registration order was set aside, the mother was permitted to withdraw her application, and costs were awarded against her.
2. High Court, District Judge: On 16 March 2016 District Judge Robinson ordered registration of the Russian order under the 1996 Hague Convention. That order was set aside on appeal.