The Inherent Jurisdiction of the High Court and the 1996 Hague convention

Family solicitor Felicity Jones reports on this childcare case where the court determined that in international child disputes concerning a war torn country- in this case, Ukraine; jurisdiction is only seized in the UK if the foreign family court declines it.

Re N & A – the Inherent Jurisdiction of the High Court and the 1996 Hague convention

This case looked at the difficult decisions Judges have to make in the context of international children cases involving countries that are at war. The background to the case was that three children were born to Ukrainian parents in Ukraine. They lived in Kyiv until March 2022 and in April 2022, the Mother and children came to the UK, whilst the Father remained in Ukraine. Father visited every month and in October 2022, with Mother’s agreement, he took the older children to Thailand and then back to Ukraine.

In November 2022, Father issued proceedings in Ukraine. In March 2023, Mother issued proceedings in the High Court in England.

In April 2023, the High Court in England made a Location Order and return order to seek to locate and return the children to England. Father was served with the proceedings and his passport was seized. He informed the Court that the children were now in Poland and he challenged the jurisdiction of the English Court due to the ongoing proceedings in Ukraine.

In the first instance the High Court accepted that the English Court did not have jurisdiction unless the Ukrainian Court declined jurisdiction, however, the Judge said he was bound to take into account the war situation in Ukraine and stayed all proceedings except the Wardship proceedings; ordering the Mother to collect the children from Poland

The Father appealed and his appeal was successful. The Court set aside the return orders and stayed all of the proceedings in the English High Court, stated that under Article 13 of the 1996 Hague Convention, if proceedings are underway in Ukraine, the English Court was obliged to abstain from exercising jurisdiction unless Ukraine declined jurisdiction. The Judge should not, and could not, use the Inherent Jurisdiction of the High Court to get around this issue.

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