N & A (1996 Hague Convention: Costs)

Factual and Procedural Background

On 9 June 2023, the Court allowed an appeal against an order made by Francis J in proceedings under the inherent jurisdiction brought by a mother concerning her three children, aged six, four and two. The successful appellant was the children's father, who now seeks an order for costs against the mother.

The case involved jurisdictional questions under the 1996 Hague Convention relating to parental responsibility and protection of children. The family is Ukrainian and came to this country in March 2022 under the Homes for Ukraine Scheme. In October 2022, the father took the children to Thailand and then back to Ukraine. The mother alleged abduction; the father claimed consent.

The children lived in Kyiv for six months, with the mother visiting occasionally but remaining in England. In March 2023, the mother applied for the children’s return under the 1980 Hague Child Abduction Convention, but the Ukrainian court had not yet issued the application by the appeal hearing date. In May 2023, the father brought the children to Poland and then to this country. The mother applied under the inherent jurisdiction for summary return and obtained a location order, resulting in the seizure of the father's passport.

Francis J held a hearing on 17 May 2023 but made no finding on jurisdiction or abduction, ordering the mother to collect the children in Warsaw and releasing passports to solicitors with conditions. By the appeal hearing, the children had been returned to Kyiv, making the Warsaw order unimplementable. The Court of Appeal held that under Article 13 of the 1996 Convention, the English court must abstain from jurisdiction unless the Ukrainian court declined jurisdiction. The Court set aside the return orders and stayed proceedings under the inherent jurisdiction. It endorsed returning the passports to the father to allow his return to Kyiv pending Ukrainian court determination.

Following the appeal, the father applied for costs, alleging the mother’s conduct was unreasonable, including pursuing the application despite clear jurisdictional issues and refusing to concede the appeal. The mother opposed costs, citing the accepted approach in children cases and her limited means under the Homes for Ukraine Scheme.

Legal Issues Presented

1. Whether the English court had jurisdiction to order the return of the children under the 1996 Hague Convention.
2. Whether an order for costs should be made against the mother following the appeal.
3. The appropriate application of the principles governing costs in children and child abduction proceedings.

Arguments of the Parties

Appellant's Arguments

• The mother's conduct was unreasonable for pursuing the application after it was clear that jurisdiction lay with the Ukrainian court due to prior proceedings there.
• The mother refused to concede the appeal when it became academic and the order would have to be set aside.
• The father detailed personal restrictions and additional costs incurred due to the location order and passport seizure, including legal fees, interpreter costs, accommodation, living expenses, and children’s expenses in Warsaw.

Respondent's Arguments

• No order for costs should be made, considering the accepted approach in children’s cases to generally make no costs orders except in exceptional circumstances.
• The father's claim includes costs that should not be recoverable on appeal.
• The mother has very limited means as a beneficiary of the Homes for Ukraine Scheme.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court reaffirmed the established principle that in children proceedings, particularly those involving child abduction, costs orders are generally not made except in exceptional circumstances. This principle is grounded in the paramount welfare of the child, which means there are no adult winners or losers, and parties are presumed to act in the child's best interests.

The Court considered whether the mother's conduct was unreasonable or reprehensible. It found that pursuing the application for return was not unreasonable given the serious allegation of abduction and the stakes involved. Although the mother’s argument on jurisdiction ultimately failed, it was not plainly wrong prior to the first-instance hearing.

The Court also examined the mother’s refusal to concede the appeal after the order became redundant. It concluded that this conduct was not so unreasonable as to justify a costs order, especially as the father's argument that the appeal was not academic was accepted, necessitating the hearing and allowing of the appeal.

The Court noted that even if costs had been considered appropriate, the father's claim included items that would not properly be recoverable on appeal, and the mother’s limited financial means would be a significant factor. Given these considerations and the absence of exceptional circumstances, no order for costs was justified.

The Court therefore upheld the general practice of no order as to costs in this appeal, save for a necessary order for detailed assessment of the respondent’s publicly-funded costs.

Holding and Implications

The Court held that no order for costs should be made against the mother in this appeal.

The direct effect is that each party bears their own costs except for the detailed assessment of the publicly-funded costs incurred by the respondent. The decision reinforces the established principle that costs orders in children and child abduction proceedings are exceptional and must be justified by conduct that is unreasonable or reprehensible. No new precedent was set; the ruling confirms the application of existing principles regarding costs in family law appeals.