AA & BB

A court of co-equal jurisdiction must loyally follow an existing order unless it has been set aside or stayed by the appropriate court. Where a foreign court has accepted jurisdiction under the 1996 Hague Convention on the Protection of Children, Article 13 may require the English court to abstain from exercising substantive jurisdiction. Article 11 does not justify further protective measures merely because contact could be increased where regular contact is already taking place and no urgent protective necessity is shown. Abstention is distinct from a formal stay, which may be premature while an appeal or set-aside application remains outstanding.

The judgment concerned interim directions in child-arrangements proceedings involving Russian and English proceedings concerning two children. A previous order by Mr Cusworth QC, sitting as a deputy High Court judge, had held that if the Russian court accepted jurisdiction, Article 13 of the 1996 Hague Convention on the Protection of Children applied and the English court must abstain. That decision is reported as [2021] EWFC 17 and was subject to a pending application for permission to appeal and a set-aside application.

The Russian court had since accepted jurisdiction and made substantive orders, although its judgment had not yet entered into legal force. The issues were whether to increase supervised contact, stay the English proceedings, release the children's passports, and continue with the habitual-residence hearing.

1. Existing order. The court was required to follow the order made by Mr Cusworth QC, a court of co-equal jurisdiction, unless that order was set aside or stayed. Neither had occurred. An English order takes effect when made notwithstanding a subsequent appeal; any application to stay it was for the Court of Appeal.
2. Article 13. The Russian judgment, although not yet legally effective under Article 209 of the Civil Procedure Code of the Russian Federation, required great respect and constituted evidence that the Russian court had accepted jurisdiction and made substantive orders. Applying Article 13 of the 1996 Hague Convention on the Protection of Children, the court abstained from exercising substantive jurisdiction over the children and matters within the Russian proceedings.
3. Article 11 and contact. Article 11 did not provide a basis for increasing contact. There was no longer an urgent situation or a necessary protective measure because the younger child was already seeing the father regularly three times a week. The existing contact order therefore remained in place, subject to agreed additional contact.
4. The serious allegations made by both parents did not cancel each other out. Practice Direction 12J might require fact-finding before any extensive contact order, particularly in the absence of an independent assessment by CAFCASS.
5. Other applications. A formal stay was neither granted nor refused because it was premature while the appeal and set-aside applications remained pending. The habitual-residence hearing was vacated and adjourned. The children's passports remained held to the order of the court because removing the children to Russia could render the pending applications nugatory. The mother retained liberty to renew the passport application after a material change in circumstances.

• High Court (Family Division): Mr Cusworth QC, sitting as a deputy High Court judge, determined the prior application on 1 March 2021. His decision is reported as [2021] EWFC 17. The father sought permission to appeal and issued a set-aside application.
• High Court (Family Division): In the present judgment, Mr Justice Holman followed the subsisting order, abstained from substantive jurisdiction, declined to stay the proceedings, and gave consequential directions.