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

Judgment: The father appealed from an order determining that the proceedings concerning the parties' children were subject to the 1996 Hague Convention for the purposes of the lis pendens provisions in article 13. The father had commenced proceedings in England and Wales, while the mother had commenced proceedings in Russia. The father contended that the 1996 Hague Convention did not apply to the English proceedings because of the effect of article 61 of Council Regulation (EC) No 2201/2003 (Brussels IIa). His case was that the children were habitually resident in England and Wales when those proceedings commenced, and thus, as set out in article 61, Brussels IIa applied. He submitted that the judge had misinterpreted articles 61 and 62 of Brussels IIa. In Moylan LJ's view, the outcome was clear. If the children were habitually resident in England and Wales when the English proceedings commenced, Brussels IIa applied to them, including the jurisdiction provisions, and article 13 of the 1996 Hague Convention did not apply. Newey LJ and Baker LJ agreed. The appeal was allowed and the judge's determination was set aside.