Re: X (Children)

Applications to reopen or revisit an earlier order may be summarily dismissed where the applicant fails to establish a prima facie case with sufficient merit. A directions hearing can be used for that purpose where the applicant had time to prepare and identifies no specific further evidence or submissions requiring an adjournment. A later welfare application requires circumstances justifying a substantive welfare assessment. Article 11 of the 1996 Hague Convention confers a secondary, urgent protective jurisdiction. It permits necessary measures, including immediate contact arrangements, where waiting for the primary jurisdiction would be impractical, but does not permit broader interference with issues for the home country. A jurisdiction objection not substantively raised below, followed by consent to the order, is too late on appeal. Appellate interference with interim costs funding requires a decision outside the permissible discretionary range.

The parents were involved in long-running proceedings concerning their children. The High Court recognised a Russian parental responsibility order, dismissed the father’s challenge to that recognition, and made interim contact arrangements. The father subsequently applied to stay or set aside aspects of the earlier orders and sought substantive orders under the Children Act 1989, relying principally on changed geopolitical circumstances, contact difficulties and alleged inaccuracies in the earlier evidence. The judge summarily dismissed those applications on 13 May 2022 and made a limited order requiring the mother to return one child to England for contact. The father appealed the summary dismissal. The mother appealed the contact order, arguing that the court lacked jurisdiction. The father also sought permission to appeal the refusal of further legal costs funding. The central issues were whether the applications required a fuller hearing, whether the circumstances justified reopening or undertaking a welfare assessment, and whether Article 11 supplied jurisdiction for the contact order.

Lord Justice Moylan gave the lead judgment. Lord Justice Peter Jackson and Lord Justice William Davis agreed.

1. Father’s applications. The judge was entitled to determine at a directions hearing whether the father had established a prima facie case with sufficient merit to justify continuation of his applications. The father had time to prepare and had not identified with sufficient specificity any further evidence or submissions requiring an adjournment. Fairness did not require a longer substantive hearing.
2. The judge was also entitled to conclude that the matters relied on did not add anything new of substance to the issues previously considered. His extensive knowledge of the proceedings enabled him to assess the alleged risks, access to justice in Russia and contact difficulties. None demonstrated a material flaw in the earlier orders or justified reopening recognition of the Russian order.
3. For the father’s substantive welfare application, the relevant question was whether the circumstances justified the exercise of substantive jurisdiction by undertaking a welfare assessment. That approach was consistent with Re E (BIIa: Recognition and Enforcement) [2021] Fam 211 and Re A (A Child) (Enforcement of A Foreign Order) [2022] EWCA Civ 904. The judge was sufficiently addressing that question when considering whether anything justified revisiting the earlier decision that the child should live with the mother in Russia.
4. Mother’s appeal. The jurisdiction objection had not been substantively raised below, and the mother had initially consented to an order dealing with contact. Her subsequent withdrawal of consent came too late to support an appeal. In any event, Article 11 of the 1996 Hague Convention gave the judge jurisdiction to make the limited order. Article 11 is a secondary and urgent protective jurisdiction. It may be used where necessary protection cannot sensibly await invocation of the primary jurisdiction, but it must not interfere with matters properly dealt with in the home country. Immediate arrangements for contact before the child’s departure fell within those limits. The mother’s appeal was dismissed.
5. Costs funding. Permission to appeal the refusal of further funding was granted, but the substantive appeal was dismissed. The refusal was within the range of permissible discretionary decisions. The judge was entitled to reject funding for incurred costs after dismissing the father’s applications and making a costs order against him, and to reject further anticipated costs. The Court nevertheless noted concerns about the unequal practical access to funds.

• Court of Appeal (Civil Division): On 19 August 2022, dismissed the father’s and mother’s appeals from the High Court orders of 13 May 2022. Permission to appeal the refusal of legal costs funding was granted, but the substantive appeal was dismissed.
• Court of Appeal (Civil Division): An earlier appeal in the same proceedings concerned the interaction between Brussels IIa and the 1996 Hague Convention. It is reported as Re X (Children) (Article 61 BIIa) [2022] 1 FLR 301.
• High Court of Justice, Family Division: Sir Jonathan Cohen recognised the Russian parental responsibility order on 12 January 2022, summarily dismissed the father’s further applications on 13 May 2022, made the challenged contact order, and refused further legal costs funding in June 2022.