Background
In financial remedy proceedings under the Matrimonial and Family Proceedings Act 1984, the husband sought Letters of Request under the Hague Convention 1970 on the Taking of Evidence Abroad to facilitate giving evidence by video-link from Russia. The husband, a Russian national designated under UK sanctions with a travel ban preventing entry to the United Kingdom, was willing to give evidence remotely provided it did not breach applicable laws. The wife opposed the application, contending that Letters of Request were unnecessary and that the husband would use any refusal by Russian authorities as a pretext to avoid giving evidence. At the time the FCDO had erroneously advised that Russia was not a party to the Hague Convention 1970.
The issue turned on whether a party may voluntarily give evidence by video-link from another Contracting State to the Hague Convention without first obtaining Letters of Request. The question had practical implications: whether the family court could proceed with taking direct video-link evidence despite the absence of formal diplomatic permission under the Convention framework.
The Court’s Holding
Mr Justice MacDonald held that Letters of Request are not necessary for the husband to give evidence by video-link from Russia. The court distinguished between “indirect” evidence (taken by foreign judicial authorities pursuant to Letters of Request under Chapter I of the Convention) and “direct” evidence (where a party appears by video-link at a hearing in the requesting State). The present case concerned direct evidence. The court found the Hague Convention 1970 to be non-mandatory, not obligatory, based on the permissive language of Article 1 (“may request”) and Article 27(c), which permits Contracting States to adopt methods of taking evidence other than those specified in the Convention. Precedent supported this construction: Brannigan v Davison and Morris v Banque Arabe established that English courts may receive evidence voluntarily given from abroad despite foreign law concerns.
Critically, the court rejected the applicability of Nare and Agbabiaka (Upper Tribunal Immigration and Asylum Chamber decisions) to family proceedings. Those cases had held that foreign government consent is essential to avoid damaging diplomatic relations. The court found different considerations apply in family cases, particularly where a party voluntarily consents to giving evidence. The Family Procedure Rules 2010 r.22.3 permit video-link evidence and FPR Practice Direction 22A contemplates such evidence from abroad where no legal objection exists. The court concluded that no legal barrier prevented the husband from voluntarily giving evidence by video-link without Letters of Request.
Key Takeaways
- The Hague Convention 1970 is non-mandatory; Contracting States may take evidence by video-link using domestic law without resort to Letters of Request.
- Direct video-link evidence (remote attendance at a hearing in the requesting State) differs from indirect evidence (judicial proceedings in the requested State).
- When a party voluntarily gives evidence, Letters of Request are not required even though the foreign State is a Contracting Party to the Convention.
- Immigration tribunal precedent requiring diplomatic consent does not govern family proceedings, which have different considerations and a different procedural framework.
Why It Matters
This decision significantly clarifies the procedural landscape for taking evidence in family proceedings involving parties abroad. It removes a potential barrier to evidence-taking by establishing that practitioners need not pursue the time-consuming and uncertain Letters of Request procedure when a party consents to remote testimony. The ruling is particularly important for cases involving sanctions, travel bans, or other practical impediments to attendance. By holding the Convention non-mandatory and distinguishing family proceedings from immigration contexts, the court prioritized finality and access to justice over formal diplomatic process while still respecting the sovereignty concerns that underpin international comity.
The decision also corrects a practical error: the FCDO had wrongly advised that Russia was not a party to the Hague Convention 1970, and the court noted Russia’s actual membership in passing, ensuring future practitioners have accurate information.