RJ v Tigipko & Ors

Where an application is intended to be supplemental to foreign recognition and enforcement proceedings, the court should first establish that those proceedings are validly extant. If they have failed or no longer exist, the court may lift any stay, give directions for the substantive application, and decline immediate adjudication.

Applications resembling anti-suit injunctions require careful consideration of the court’s jurisdiction where the foreign state is party to an international jurisdiction and recognition regime. The reasoning in Turner v Grovit [2005] 1 AC 101, concerning the Brussels Convention, was considered capable of applying by analogy to the Hague 1996 Convention, but the question was left for full argument.

The applicant sought positive orders against the paternal grandfather and another respondent in proceedings concerning the return of children to England and Wales. The intended basis was that there would be a valid, pending Ukrainian application for recognition and enforcement under the Hague 1996 Convention.

The Ukrainian court had summarily rejected the father’s earlier application for want of effective service, and the appeal against that rejection had failed. The High Court therefore considered applications which appeared to be ancillary to foreign proceedings that no longer existed. The central issues were whether the stay of a further return application should be lifted, how the proceedings should be progressed, and whether the proposed orders against the maternal grandfather were within the court’s jurisdiction.

1. Directions and procedural disposition. The court lifted the stay on the father’s January 2019 application for a further return order and directed that it be heard, with the mother as the relevant respondent. The guardian was to be appointed for that application and directed to report. The maternal grandfather remained a party, while Slava was discharged. The court declined to adjudicate the applications for positive orders against the maternal grandfather.
2. Need for an extant foreign application. The judge had listed the matter on the assumption that there was a valid, effective and pending Ukrainian application for recognition and enforcement under the Hague 1996 Convention. That assumption was wrong. The appropriate course was therefore to restore and direct the domestic return application rather than make ancillary orders to a substantive foreign application that no longer existed.
3. Anti-suit injunction jurisdiction. The proposed orders were, in substance, anti-suit injunctions, or in one instance a mandatory injunction requiring conduct in foreign proceedings. The judge was not satisfied that such orders were within the court’s powers where the other state was a Hague 1996 Convention country. The reasoning of the Court of Justice of the European Union in Turner v Grovit [2005] 1 AC 101, concerning the Brussels Convention, was considered highly analogous and capable of applying equally. The judge required full argument at any subsequent hearing and made no final determination of jurisdiction.
4. Mediation and welfare. The parties were strongly urged to explore mediation. A mediated solution might differ from the existing return order and still not necessarily be contrary to the children’s interests. The judge identified the continuing severance of the children’s relationship with their father as the immediate harm requiring attention.

The judgment records that the Ukrainian court summarily rejected the father’s earlier Hague Convention application and that his appeal against that rejection failed. It also records that the Court of Appeal had upheld the existing return order, but gives no citation for that decision. This was a first-instance procedural decision of the High Court.