Introduction

The case of Re N and A (1996 Hague Convention: Costs) [2023] EWCA Civ 623 involves a Ukrainian family seeking the return of three young children under the provisions of the Hague Convention. The pivotal issue in this appeal was the jurisdiction of the English courts in exercising authority under Chapter II of the 1996 Hague Convention concerning parental responsibility and child protection measures.

The parties involved are the mother, seeking the return of her children from Ukraine, and the father, who contested the mother's actions and now seeks costs against her. The judgment delves into the intricate balance between jurisdictional authority and the principles governing costs in family-related legal disputes.

Summary of the Judgment

On June 9, 2023, the Court of Appeal allowed an appeal against an initial order by Francis J, which had facilitated the mother's efforts to reclaim her children. The father contested the jurisdiction of the English court under Article 13 of the 1996 Hague Convention, arguing that jurisdiction should lie with the Ukrainian court. The appellate court agreed with the father, asserting that the English court should abstain from exercising additional jurisdiction unless the Ukrainian court declined to do so.

Consequently, the orders for the children's return to England were set aside, and the proceedings were stayed under the inherent jurisdiction of the court. While the father sought costs against the mother for what he perceived as unreasonable conduct, the appellate court declined to award costs, citing established principles that costs in child-related proceedings are generally not awarded except in exceptional circumstances.

Analysis

Precedents Cited

The judgment extensively references several key precedents that shape the court's approach to awarding costs in family and child abduction cases:

• Re T [2012] UKSC 36: Established that in child-related cases, the child’s welfare is paramount, and costs are typically not awarded to avoid disadvantaging either parent.
• Re S [2015] UKSC 20: Reinforced the principles from Re T, emphasizing that only in exceptional circumstances should costs be considered.
• Sutton London Borough Council v Davis (No 2) [1994] 2 FLR 569: Identified that reprehensible conduct or unreasonable stance may warrant cost orders.
• EC-L v DM (Child Abduction: Costs) [2005] EWHC 588 (Fam): Highlighted that costs orders in child abduction cases are the exception rather than the rule and should align with normal civil principles if considered.

These precedents collectively underscore a judicial reluctance to award costs in family disputes, aligning with the best interests of the child and avoiding penalizing parties involved in sensitive proceedings.

Legal Reasoning

The court's legal reasoning centers on the principle that in matters concerning child welfare, awarding costs can inadvertently harm the primary focus on the child's best interests. Drawing from the Supreme Court's rulings in Re T and Re S, the appellate court emphasized that costs orders should only occur in "unusual circumstances," such as when a party's conduct is beyond reasonable bounds.

In this case, the mother acted under the genuine belief that the children had been abducted, prompting her to seek their return. The court found her actions reasonable given the circumstances, despite the eventual determination that jurisdiction lay with the Ukrainian court. The father's claims, while detailing personal and financial hardships, did not rise to the level of unreasonable conduct warranting a costs order.

Additionally, the court noted that cost protection schemes do not apply in family proceedings, but emphasized that the mother's limited means and the nature of the case did not merit a departure from the general principle of non-award of costs.

Impact

This judgment reinforces the established reluctance to award costs in child-related proceedings, affirming that such orders are permissible only under exceptional conditions. It underscores the court's commitment to prioritizing the welfare of the child over litigant financial outcomes. Future cases involving child abduction or parental disputes will likely reference this judgment to support the principle that costs should not be used as a punitive measure in the absence of egregious behavior.

Furthermore, the decision clarifies the application of Article 13 of the Hague Convention, delineating the conditions under which English courts should exercise or abstain from jurisdiction, thereby providing clearer guidance for international child abduction cases.

Complex Concepts Simplified

Conclusion

The Court of Appeal's decision in Re N and A [2023] EWCA Civ 623 reinforces the judiciary's stance on minimizing the financial burdens in child-related legal proceedings unless exceptional circumstances are present. By declining to award costs against the mother, the court upheld the principle that the child’s welfare remains paramount and that procedural fairness should not be overshadowed by adversarial financial claims.

This judgment serves as a critical reference point for future cases, affirming that costs in child abduction disputes will only be considered when a party's conduct transcends reasonable legal action. Consequently, legal practitioners and parties engaged in similar disputes can anticipate a continuation of this balanced and child-centric approach in the English legal system.