If the parties’ children had been habitually resident in England and Wales when the English proceedings under the Children Act 1989 had commenced, Regulation (EC) No 2201/2003 (BIIa) (prior to the 2020 Withdrawal Agreement) applied to them, including the jurisdiction provisions, and art 13 of the 1996 Hague Convention did not apply. The Court of Appeal, Civil Division, in so ruling, held that art 61(a) of BIIa provided, without qualification, that BIIa ‘shall apply’ if the child the subject of the proceedings has his or her habitual residence in a member state. Accordingly, the court allowed the father’s appeal and set aside an order that the proceedings concerning the parties’ children were subject to the Hague Child Protection Convention 1996, for the purposes of the lis pendens provisions in art 13.
 All ER (D) 55 (Aug)
*Re X (children) (article 61 BIIa)
 EWCA Civ 1305
Court of Appeal, Civil Division
Moylan, Newey and Baker LJJ
24 August 2021
Family proceedings – Jurisdiction – Father appealing against order that proceedings concerning parties' children subject to Hague Child Protection Convention 1996 pursuant to lis pendens provisions
The father commenced proceedings in England and Wales under the Children Act 1989 (ChA 1989) seeking a child arrangements order and a prohibited steps order in respect of the parties' children (the English proceedings).
The mother commenced proceedings in Russia seeking residence orders.
In March 2021, Nicholas Cusworth QC (the judge), sitting as a Deputy High Court Judge, made an order that the proceedings concerning the parties' children were subject to the Hague Child Protection Convention 1996 (the 1996 Hague Convention) for the purposes of the lis pendens provisions in art 13, which provided that: '(1) The authorities of a Contracting State which have jurisdiction under Articles 5 to 10 to take measures for the protection of the person or property of the child must abstain from exercising this jurisdiction if, at the time of the commencement of the proceedings, corresponding measures have been requested from the authorities of another Contracting State having jurisdiction under Articles 5 to 10 at the time of the request and are still under consideration' (see  of the judgment).
The father appealed.
Whether the judge had misinterpreted and misapplied arts 61 and 62 of Regulation (EC) No 2201/2003 (BIIa) (prior to the 2020 Withdrawal Agreement), in finding that art 62 meant that the lis pendens provisions of the 1996 Hague Convention applied to the proceedings in the present case.
Article 61 of BIIa provided that: 'As concerns the relation with the Hague Convention of 19 October 1996 on Jurisdiction, Applicable law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, this Regulation shall apply: (a) where the child concerned has his or her habitual residence on the territory of a member state; (b) as concerns the recognition and enforcement of a judgment given in a court of a member state on the territory of another member state, even if the child concerned has his or her habitual residence on the territory of a third State which is a contracting Party to the said Convention.'
Article 62 provided that: '(1) The agreements and conventions referred to in Articles 59(1), 60 and 61 shall continue to have effect in relation to matters not governed by this Regulation. (2) The conventions mentioned in Article 60, in particular the 1980 Hague Convention, continue to produce effects between the member states which are party thereto, in compliance with Article 60.'
The father submitted that the judge's decision had been wrong in that the 1996 Hague Convention did not apply to the English proceedings because art 61 mandated that BIIa applied to the proceedings if the children had been habitually resident in England and Wales at the relevant date which, he submitted, was the date when the English proceedings commenced, and the children had been habitually resident in England and Wales at the date of the commencement of those proceedings, such that, as set out in art 61, BIIa 'shall apply'. The issue of whether the children were habitually resident at that date had not yet been determined.
The mother submitted that the judge had been right to decide that the lis pendens provisions of the 1996 Hague Convention applied because of the effect of art 62 of BIIa, and that, on the judge's interpretation of that article, the lis pendens provisions of the 1996 Hague Convention applied because the equivalent provisions in BIIa did not apply in the circumstances of the case.
Consideration was also given to art 52 of the 1996 Hague Convention, which concerned the relationship between that Convention and other instruments (see  of the judgment).
In the present case, the appeal had to be allowed and the judge's determination set aside. If the children had been habitually resident in England and Wales when the English proceedings had commenced, BIIa applied to them, including the jurisdiction provisions, and art 13 of the 1996 Hague Convention did not apply (see  of the judgment).
Under arts 61 and 62, BIIa applied if the child was habitually resident in an EU member state and the 1996 Hague Convention did not 'have effect in relation to matters' such as parental responsibility and jurisdiction because they were governed by BIIa. In simple terms, BIIa 'takes precedence over' (per the Borras Report) or 'prevails' (per the EU Practice Guide) over the 1996 Hague Convention in respect of such matters (see  of the judgment).
The recast BIIa was supportive of the father's case because it changed the structure of the provisions dealing with the relationship between BIIa and the 1996 Hague Convention in a way which reflected the fact that all member states were currently contracting parties to the 1996 Hague Convention. The recast BIIa was clearly intended to address the difficulties identified and contained a significant revision to the relationship between the Regulation and the 1996 Hague Convention (see - of the judgment).
Article 61(a) of BIIa provided, without qualification, that BIIa 'shall apply' if the child the subject of the proceedings has his or her habitual residence in a member state. That was a straightforward provision which, in its own terms, was clear and simple to apply (see  of the judgment).
Therefore, the court did not agree with the judge when he had said, at , that art 61 had to 'pre-suppose that the Regulation applies to the situation in question'. Adapting the wording from UD v XB C-393/18, at , 'nothing in (article 61) indicates that (its) application … is conditional on there being a legal relationship involving a number of member states'. All art 61 required was that the child the subject of the proceedings was habitually resident in a member state. If the child was, then BIIa 'shall apply'. That meant that, subject only to the issue of habitual residence, the courts of England and Wales would have jurisdiction under art 8 because, as established by UD v XB at , art 8 applied 'to disputes involving relations between the courts of a single member state and those of a third country, and not only relations between courts of a number of member states' (see  of the judgment).
The court also did not consider that art 61(b) supported the judge's conclusion or that it was relevant. The fact that that provision did not deal with enforcement in a state not bound by BIIa was not surprising. In simple terms, it could not. That provision dealt with intra-EU enforcement of an order made in a member state even if the child was habitually resident in a third state. That did not, in any way, undermine or affect the meaning of art 61(1) (see  of the judgment).
Pursuant to art 61, therefore, BIIa applied in the present case if the children had been habitually resident at the commencement of the English proceedings. Accordingly, the issue was the meaning and effect of art 62 (see ,  of the judgment).
Article 62 stipulated when the Conventions listed in arts 59, 60 and 61 would 'have effect'. That article was addressing the relationship between those Conventions and BIIa in general terms. They would 'continue to have effect in relation to matters', not proceedings, which were 'not governed by the Regulation'. Parental responsibility and jurisdiction were matters which were both governed by BIIa. The fact that the lis pendens provisions in art 19 did not apply in the present case, because the other state was not an EU member state, did not mean that jurisdiction including lis pendens was not a matter governed by BIIa (see  of the judgment).
Article 62 was not addressing individual proceedings but, as set out in the Borras Report, contained 'the general rule' that BIIa 'takes precedence over other international conventions to which the member states were party in so far as they concern matters governed by both'. Accordingly, in respect of a matter, such as jurisdiction, which was governed by BIIa, the 1996 Hague Convention did not 'continue to have effect'. Conversely, if a matter was not governed by BIIa, such as applicable law, then the Convention would 'have effect' (see  of the judgment).
Articles 61 and 62 depended, first, on whether the child was habitually resident in a member state. If they were, BIIa 'shall apply'. Article 62 dealt with the scope of the effect of arts 59, 60 and 61 and the Conventions referred to in them. That depended on whether the matter was or was not 'governed by the Regulation'. That was an overarching consideration from the perspective of the Conventions and BIIa; the answer depended on the material scope of BIIa and not on the circumstances of the individual proceedings. It was clear from BIIa itself, and from the EU Practice Guide and the Practical Handbook, that, as the latter stated at [12.7], 'the Regulation will prevail where a child has his or her habitual residence in a member state of the European Union', save in respect of a matter, notably, applicable law, which was not governed by BIIa (see  of the judgment).
In the present case, the substantive legal matter, namely parental responsibility, was governed by BIIa and the rules as to jurisdiction were also governed by BIIa. The fact that art 19 was not actively engaged because the other state was not an EU member state did not mean that the jurisdiction, including the lis pendens provisions, were not governed by BIIa. Jurisdiction was governed by BIIa because it was a matter within the scope of BIIa (see  of the judgment).
The court had not found art 52 of the 1996 Hague Convention entirely straightforward, but whichever paragraphs of that article in fact applied, their effect was clear as set out in the Practical Handbook. That, again, supported the conclusion that BIIa 'will prevail', save when the matter was not one included in BIIa (see  of the judgment).
That conclusion was also supported by what was said in the Borras Report, at , about legal certainty and mutual confidence requiring the adoption of the rule 'whereby there is an obligation to give precedence to the application' of the BII Convention and by what had been said in UD v XB, at , as relied on by counsel for the father. The Court of Justice of the European Union had referred to the purpose of the uniform rules in BIIa in the present terms: 'the unification of the rules of jurisdiction introduced by that Regulation certainly has the objective of eliminating obstacles to the functioning of the internal market which may derive from disparities between national legislations on the subject'. The differential application of art 13 of the 1996 Hague Convention as between EU member states would have the opposite effect (see  of the judgment).
UD v XB C-393/18 applied; JKN v JCN  EWHC 843 (Fam) distinguished; Mittal v Mittal  EWCA Civ 1255 distinguished; SS v MCP C-603/20 distinguished.
Decision of Nicholas Cusworth QC  All ER (D) 80 (Mar) Reversed.
William Tyler QC and William Tyzack for the father.
Teertha Gupta QC, Jacqueline Renton and Jennifer Perrins for the mother.
Carla Dougan-Bacchus - Barrister.