Introduction

The case of X (Children) (Article 61 Biia) ([2021] EWCA Civ 1305) adjudicated by the England and Wales Court of Appeal (Civil Division) on August 24, 2021, addresses a pivotal conflict between two international legal instruments: the Brussels IIa Regulation (BIIa) and the 1996 Hague Child Protection Convention. This case involves a dispute between a father and mother over child arrangements and residence orders for their children, spanning jurisdictions between England and Wales and Russia.

The central issue revolves around which legal framework governs the proceedings: whether BIIa takes precedence in determining jurisdiction and parental responsibility, or whether the Hague Convention's lis pendens provisions are applicable. The father's appeal challenges the lower court's application of the Hague Convention, asserting that BIIa should govern given the children's habitual residence in England and Wales.

Summary of the Judgment

Lord Justice Moylan, delivering the judgment, upheld the father's appeal against the initial decision that applied the 1996 Hague Convention's lis pendens provisions to the case. The Court of Appeal determined that the Brussels IIa Regulation should take precedence in matters of jurisdiction and parental responsibility when the children are habitually resident within an EU Member State, in this case, England and Wales.

The court concluded that articles 61 and 62 of BIIa explicitly state that the regulation "shall apply" in cases where the child has habitual residence in a Member State, thereby superseding the Hague Convention in matters governed by BIIa. Consequently, the lis pendens provisions of the Hague Convention do not apply, and the English proceedings should not be stayed in favor of the Russian proceedings.

Lord Justice Moylan also addressed the submissions from both parties, analyzed relevant precedents, and examined the legislative frameworks governing BIIa and the Hague Convention. The court's decision emphasized the importance of legal certainty and the harmonization objectives of BIIa within the EU framework.

Analysis

Precedents Cited

The judgment references several key cases and legal instruments that influenced the court’s decision:

• Owusu v Jackson [2005] QB 801; clarifying the application of jurisdiction rules under BIIa.
• JKN v JCN (Divorce Forum) [2011] 1 FLR 826; dealing with competing divorce proceedings and the interpretation of "governed by" in BIIa.
• UD v XB, CJEU (Case C-393/18 PPU) [2019] 1 WLR 3083; which reinforced that BIIa applies to disputes involving relations with both Member States and third countries if the child is habitually resident in a Member State.
• Mittal v Mittal [2014] Fam 102; examining the power to stay proceedings under BIIa.
• West Sussex County Council v H [2014] EWHC 2550 (Fam); contrasting application based on habitual residence.
• SS v MCP (C-603/20 PPU) [2021] CJEU; elucidating the limitations of BIIa’s jurisdictional provisions when dealing with third State issues.

These precedents collectively shaped the court's understanding that BIIa provides a comprehensive and harmonized framework within the EU for jurisdictional matters, thereby overriding separate international conventions like the Hague Convention when their domains overlap.

Legal Reasoning

The court's legal reasoning centered on interpreting articles 61 and 62 of BIIa, which delineate the relationship between BIIa and other international conventions like the Hague Convention. The key points include:

• Article 61(a) of BIIa: Clearly states that BIIa "shall apply" if the child is habitually resident in a Member State. This unambiguous provision establishes BIIa’s primacy in such cases.
• Article 62 of BIIa: Specifies that while BIIa governs matters within its scope (e.g., jurisdiction, parental responsibility), the Hague Convention applies to matters not covered by BIIa (e.g., applicable law).
• Habitual Residence: The determination of the children's habitual residence was crucial. If established in England and Wales, BIIa governs the proceedings.
• Scope of BIIa versus Hague Convention: The court emphasized that BIIa's scope includes substantive and procedural matters related to parental responsibility, thereby excluding the Hague Convention in overlapping areas.
• Recursion to Legislative Intent: Analyzed the Borras Report and the EU Practice Guide to understand legislative intent, reinforcing the precedence of BIIa in harmonizing jurisdictional rules within the EU.

Essentially, the court reasoned that BIIa was designed to create a unified framework within the EU, eliminating jurisdictional disparities and ensuring consistent application across Member States. Therefore, in cases where both BIIa and the Hague Convention could apply, BIIa takes precedence.

Impact

This judgment has significant implications for international child custody and protection cases involving EU Member States and third countries:

• Jurisdictional Clarity: Reinforces the dominance of BIIa in jurisdictional matters within the EU, providing clearer guidance for courts handling cross-border family cases.
• Harmonization of Laws: Promotes harmonization and consistency in applying jurisdictional rules, reducing conflicts and legal uncertainties.
• Precedence Over International Conventions: Establishes that within the EU framework, BIIa supersedes separate international conventions like the Hague Convention in overlapping domains.
• Future Litigation: Legal practitioners must prioritize BIIa provisions in relevant cases, potentially limiting the applicability of other conventions when BIIa covers the matter.

Additionally, this decision underscores the importance of understanding the hierarchical relationship between different legal instruments in international family law, especially in the context of the UK's post-Brexit legal environment.

Complex Concepts Simplified

Conclusion

The Court of Appeal's decision in X (Children) (Article 61 Biia) reasserts the supremacy of the Brussels IIa Regulation over the 1996 Hague Child Protection Convention in matters of jurisdiction and parental responsibility, provided the child is habitually resident within an EU Member State. This landmark ruling not only clarifies the interplay between EU regulations and international conventions but also enhances legal certainty and consistency in cross-border family law cases within the EU framework.

For legal practitioners and parties involved in international family disputes, this judgment underscores the necessity of prioritizing BIIa provisions when applicable, thereby streamlining jurisdictional claims and facilitating more predictable outcomes in parental responsibility and child protection matters.

As the legal landscape continues to evolve, especially in the post-Brexit context, the precedence established by this case will serve as a cornerstone for future jurisprudence, promoting harmonized legal standards and safeguarding the best interests of children across international borders.