N and A (1996 Hague Convention: Article 13)

Where the 1996 Hague Convention applies, the High Court’s inherent jurisdiction is controlled by the Convention’s jurisdictional code. Article 13 requires abstention where, when English proceedings begin, corresponding protective measures have been requested from a court in another Contracting State with jurisdiction and remain under consideration. Corresponding measures are measures that are the same or similar in substance. A welfare application concerning where children should live can correspond to an application for their return to a parent’s care. Articles 11 and 12 do not confer urgent or provisional jurisdiction over children who are outside England. The court cannot hold the ring by making a welfare order before resolving jurisdiction.

The mother commenced proceedings under the inherent jurisdiction concerning her three children. She sought the return of N and A from Poland to England and Wales and orders protecting D, who remained in England. The father relied on proceedings already issued in Ukraine and contended that Article 13 of the 1996 Hague Convention required the English proceedings concerning N and A to be stayed.

Francis J stayed the proceedings except for wardship, but ordered the mother to collect N and A from Poland and return them to England. He deferred determination of jurisdiction and the lis pendens issue. By the time of the appeal, N and A had been taken back to Kyiv. The central issue was whether the English court could use its inherent jurisdiction to order their return while leaving the Convention jurisdictional questions unresolved.

The appeal was allowed on grounds 1 to 3 and dismissed on ground 4.

1. The Court accepted that the appeal was not academic. The order might be recognised or enforced abroad, and an uncorrected order could mislead the Ukrainian court or other courts about the scope of the English court’s inherent jurisdiction.
2. Where the 1996 Hague Convention applies, the inherent jurisdiction is subject to its jurisdictional code. It cannot be used as a residual power to overcome a restriction imposed by the Convention. The Court relied on the approach in Re J (A Child) (Reunite International Child Abduction Centre intervening) [2015] EWCA Civ 329; [2015] 3 WLR 747, whose observations had also been endorsed in Re I-L (1996 Hague Child Protection Convention: Inherent Jurisdiction) [2019] EWCA Civ 1956; [2020] 1 FLR 656.
3. Article 13 applied because the Ukrainian proceedings sought measures corresponding to those sought in England. Both proceedings required a welfare determination of where and with whom N and A should live. The English court was therefore required to abstain from exercising any jurisdiction it might have under Article 5 while the Ukrainian request remained under consideration, unless the Ukrainian authorities declined jurisdiction under Article 13(2).
4. As N and A were not in England, the English court had no jurisdiction to make urgent orders under Article 11 or provisional orders under Article 12 in respect of them. The court could not make a return order merely to hold the ring. The proceedings concerning N and A were stayed, while proceedings concerning D could continue because D remained in England.
5. The judge was entitled, at the time of his order, to retain the father’s passport in light of the allegations and concern about a possible abduction of D. Ground 4 was therefore dismissed. By consent, the passports and relevant documents were subsequently returned because N and A were back in Kyiv and their welfare required reunification with the father.

The return orders were set aside, the matter was remitted to the Family Division, the wardship concerning N and A was discharged, and the English court’s request to the Ukrainian authorities was withdrawn.

1. Court of Appeal (Civil Division) Allowed the appeal on grounds 1 to 3, dismissed it on ground 4, set aside the return orders, stayed the proceedings concerning N and A, and remitted the proceedings concerning D. [2023] EWCA Civ 623.
2. High Court of Justice, Family Division Francis J ordered the mother to collect N and A from Poland and return them to England and Wales, while deferring determination of jurisdiction and Article 13. He stayed the proceedings except for wardship and refused permission to appeal.