Re X (Children) (Article 61 BIIa) [2021] EWCA Civ 1305

Date of Case: 24 August 2021
Case Reference: [2021] EWCA Civ 1305

Will Tyzack (led by Will Tyler QC and instructed by Linklaw Solicitors / Vaitilingam Kay) was instructed by the appellant father in an appeal against a decision of Nicholas Cusworth QC (sitting as a deputy High Court judge) in a complex international children case involving competing Russian and English proceedings.

At first instance, the court had determined that the lis pendens provision in Article 13 of the 1996 Hague Convention applied so as to require the English court to stay its proceedings in favour of a court in Russia. The Court of Appeal (Moylan, Newey and Baker LJJ) overturned that decision, holding that the jurisdictional regime in Brussels II revised was of mandatory application (the application having been made before the end of the Brexit transitional period), and that Article 13 of the 1996 Convention did not therefore apply. The English court was therefore required to consider the question of its jurisdiction; if the children were habitually resident in England when the English proceedings commenced, BIIr would apply to them.

Bailli report: