Natalia Nikolaevna Potanina v Vladimir Olegovich Potanin (No3) (Video Evidence from Abroad)

In this matter, I am concerned with the application for Letters of Request under Art 1 of the Hague Convention 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (“Hague Convention 1970”) in financial remedy proceedings between Natalia Nikolaevna Potanina (hereafter, by convention, “the wife”) and Vladimir Olegovich Potanin (hereafter, by convention, “the husband”). The wife was granted unconditional leave to proceed with her application under Part III of the Matrimonial and Family Proceedings Act 1984 (hereafter, “the 1984 Act”) by the Court of Appeal on 4 September 2025. The wife is represented by Charles Howard KC, Deepak Nagpal KC and Jennifer Palmer. The husband is represented by Rebecca Carew Pole KC, Rebecca Bailey-Harris and Ben Wooldridge.

In an earlier judgment, published as Potanina v Potanin (Case Management) [2026] EWFC 80, I said as follows regarding the issue of the husband giving evidence at the final hearing listed in November:

“[76] There is an obligation on parties under FPR r.27.3 to attend hearings. With respect to the arrangements for the attendance at future hearings of the husband, the reality is set by the travel ban prohibiting the husband entering or staying in the United Kingdom, pursuant to s.4 of the 2018 Act. Any steps to alter that reality are unlikely to be commensurate with the aim of this court to resolve these proceedings in November. In the circumstances, I propose to permit the husband to attend future hearings remotely.

[77] At the hearing, there was no suggestion by the husband that he is unable to give evidence in these proceedings from Russia by way of video-link should this become necessary at the final hearing. However, as part of the process of submitting corrections to the draft judgment, those representing the husband properly drew the attention of the court to the decision of the First-Tier Tribunal in Potanin v Charity Commission for England & Wales [2026] UKFTT 271 (GRC), handed down two days after the case management hearing. That decision judgment records at paragraph [77] that the husband was refused permission [by the Upper Tribunal] to give oral evidence by video-link from Russia.

[78] It is clear from the judgment of the Tribunal that the issue of the ability of the husband to give evidence by video-link from Russia arose in the context the decision in Agbabiaka(evidence from abroad, Nare guidance) Nigeria [2021] UKUT 286 (IAC) and the (then applicable) Guidance Note from the President of Tribunals on taking evidence from overseas. There was no suggestion in Agbabiaka that it was a decision intended to prescribe practice in the family court and the considerations in family cases may be said to be different to those pertaining in civil cases (see Newcastle CC v JK [2025] EWHC 1767 (Fam) at [110] to [123]). However, I did not hear detailed submissions on the ability of the husband to give evidence from Russia in financial remedy proceedings and I forebear from reaching any conclusions on this point. In so far as it remains in issue, it will need to be dealt with in argument at the first appointment. I will direct the husband to indicate ahead of the first appointment whether he is willing and able to give evidence by video-link should that course become necessary at any final hearing, including the arrangements that have been put in place (if any) for him to give evidence at the forthcoming trial in the King’s Bench Division in IPJSC United Company Rusal v Whiteleave Holdings Limited, Vladimir Potanin, Crispian Investments Limited and Roman Abramovich.”

The issue now arises for determination at the First Appointment. The husband volunteers to give evidence to this court at the final hearing by way of video-link provided that doing so would not breach any applicable laws. Once again, there was no suggestion by the husband that he is unable to give evidence in these proceedings from Russia by way of video-link for that reason. However, the husband has issued an application for Letters of Request under the 1970 Hague Convention in case they are by required by the Russian Federation in order to permit him to give evidence in that way at the final hearing. The wife argues that Letters of Request are not necessary where the husband has volunteered to give evidence by video-link and she fears, in the context of her case that the husband holds powerful influence over the courts in Russia, that he will use any refusal of Letters of Request as an excuse not to do so. Thus, this case engages directly the question of whether the domestic court can, without more, take evidence using a video-link to another jurisdiction where the party or witness volunteers to given evidence to the English court by that method.

In determining this case management issue, I have had the benefit of full written and oral submissions from leading and junior counsel and a bundle of authorities. In light of nature of the issue and its potential relevance to other cases proceeding in the Family Court and the Family Division of the High Court, I reserved judgment and now set out my decision and the reasons for it.

Finally by way of introduction, on 1 July 2026, I heard extensive submissions from leading and junior counsel on an on notice application to continue an anti-anti-suit injunction granted to the wife ex parte on 2 June 2026. In light of the considerable complexity of the legal issues raised at that hearing, I again reserved judgment at the conclusion of the hearing. Nothing said in this judgment should be taken as indicating the outcome of that application.

The background has been set out extensively in a number of judgments at a number of levels. In the circumstances, for the purposes of this judgment it is necessary only to provide the central facts.

On 8 October 2018, the wife issued an application under Part III of the Matrimonial and Family Proceedings Act 1984 (hereafter “the 1984 Act”) for financial remedies following an overseas divorce. The extensive procedural history of the wife’s application under the 1984 Act is set out in the first instance decision of Cohen J (Potanin v Potanina [2019] EWHC 2956 (Fam), [2020] Fam 189), the decision of the Court of Appeal overturning the decision of Cohen J (Potanin v Potanina [2021] EWCA Civ 702, [2022] Fam 23), the decision of the Supreme Court overturning the decision of the Court of Appeal (Potanina v Potanin [2024] UKSC 3, [2024] AC 1063) and finally, the Supreme Court having remitted the matter to the Court of Appeal, the decision of the Court of Appeal overturning the first instance decision of Cohen J and granting the wife leave to bring an application under the 1984 Act (Potanina v Potanin [2025] EWCA Civ 1136, [2026] 2 WLR 352). Thus, the wife’s application under Part III of the 1984 Act has taken nearly 8 years to reach the permission stage.

The matter is now listed before me to determine the wife’s substantive application under the 1984 Act. The wife seeks an award from the English court capped at 50% of the value of: (i) the husband’s ultimate beneficial interest in c.30% of the shares in MMC Norilsk Nickel PJSC; (ii) the dividends paid on those shares since 2014; and (iii) what she contends is a former matrimonial home in Russia known as “Autumn House”. Based on the market capitalisation of MMC Norilsk Nickel PJSC as at February 2026, the value of the wife’s claim under the 1984 Act is in the region of US$5 billion. In the alternative, she seeks an award to satisfy her reasonable needs.

Moving back a little in the chronology, on 29 June 2022, the husband became a designated person under the Russia (Sanctions) (EU Exit) Regulations 2019 (hereafter “the 2019 Regulations”), which implement the Sanctions and Money Laundering Act 2018 (hereafter “the 2018 Act”). In addition to being sanctioned by the United Kingdom, the husband has also been sanctioned by Australia, Canada, New Zealand, Ukraine and the United States of America. The wife has not been designated under the 2019 Regulations and has not been sanctioned in any other jurisdiction. The sanctions imposed on the husband by the United Kingdom include a travel ban, placing a prohibition on the husband entering or staying in the United Kingdom, pursuant to s.4 of the 2018 Act.

In the foregoing circumstances, the husband contends that he is unable to attend hearings in this jurisdiction by reason of the travel ban imposed on him and that, in any event, the asset freeze would preclude him from engaging private security to ensure his safety in this jurisdiction. Whilst these activities are, in theory, capable of being the subject of a licence, the husband contends that it is unlikely such licences would be granted.

Finally, by way of relevant background, the husband is also a party to commercial litigation currently ongoing in the King’s Bench Division in IPJSC United Company Rusal v Whiteleave Holdings Limited, Vladimir Potanin, Crispian Investments Limited and Roman Abramovich. The Commercial Court has handed down three case management judgments to date, two of which have been published (see [2025] EWHC 1995 (Comm) and [2026] EWHC 154 (Comm)). By his statement dated 9 June 2026, the husband confirms that there are currently no formal arrangements in place for any potential witnesses to give evidence by video-link at the forthcoming trial of the Rusal litigation.

However, as set out above, the husband has also been involved in proceedings before the First-Tier Tribunal in Potanin v Charity Commission for England & Wales. In those proceedings, the husband was refused permission to give oral evidence by video-link from Russia. At [77] the First Tier Tribunal recorded as follows with respect to that decision:

“[77] We should also record that the appellant previously made an application for permission to give evidence by video-link from Russia on the basis that designation and other circumstances prevent travel to the UK. Permission was refused on the basis that consent had not been obtained from Russia for evidence to be taken from its territory, in accordance with the principles set out in Agbabiaka (evidence from abroad, Nare guidance) Nigeria [2021] UKUT 286 (IAC) and the (then applicable) Presidential Guidance Note on taking oral evidence from overseas. It was suggested in case management directions that the appellant might wish to explore the option of a suitable third country, but we were not told whether this was explored or whether it was ultimately practicable. We agree with the Commission and the Attorney General that this has limited their opportunity to test the appellant’s evidence, and that this must be taken into account when affording it weight, but we make clear that there is no basis upon which to draw any adverse inference from the appellant not giving oral evidence and nor were we asked to do so. We have duly considered the contents of his witness statement.”

On 5 May 2026, Payne Hicks Beach made an enquiry of the Taking of Evidence Team at the Foreign and Commonwealth Office pursuant to FPR PD22A. A response was received on the same day. The FCDO Taking of Evidence Team informed the husband’s solicitors, erroneously, that the Russian Federation is not a party to the Hague Convention 1970. On the basis of that erroneous information, the FCDO Taking of Evidence Team suggested contacting the Foreign Process Section at the Royal Courts of Justice and asking them to prepare Letters of Request to the competent judicial authority in Russia requesting the taking of evidence by video conferencing. On 6 May 2026, the Foreign Process Section confirmed the absence of standing permission for the taking of evidence by an English court on Russian soil. On 9 June 2026, the husband made an application on Form D11 for the High Court (the order not being capable of being made by a judge of High Court level sitting in the Family Court) to send Letters of Request to the Russian Federation seeking permission pursuant to FPR 2010, r 24.12 and PD24A, para 5.

As I have noted, the husband makes clear that he is willing to give evidence by way of video-link from the Russian Federation, provided that doing so would not breach any applicable laws. He does not seek to produce any evidence that he is not permitted to give evidence by way of video-link from Russia, which would in any event be inconsistent with his willingness to do so, or to demonstrate that it would be in breach of Russian law. It is apparent from the decision of the First-Tier Tribunal in Potanin v Charity Commission for England & Wales at [77] that the husband was also willing to give evidence by way of video-link in those proceedings, but was not permitted to do so by the First-Tier Tribunal because “consent had not been obtained from Russia for evidence to be taken from its territory , in accordance with the principles set out in Agbabiaka (evidence from abroad, Nare guidance) Nigeria [2021] UKUT 286 (IAC)”. In this context, the husband submits that his application for Letters of Request is made solely on the basis of information provided to his solicitors by the FCDO and the Foreign Process Section at the Royal Courts of Justice.

The wife submits that it is not necessary for the husband to obtain Letters of Request or to obtain the consent of the Russian Government in order to give evidence voluntarily via video-link. The wife contends that the husband has provided no evidence of a prohibition under Russian law on his giving evidence remotely (although, as I have noted, the husband has not asserted that there is such a prohibition under Russian law). The wife further submits that the advice from the Foreign Process Section and the FCDO is just that and does not amount to a requirement for the husband to apply for Letters of Request. In the circumstances, the wife submits that it is not necessary for the court to grant the husband’s application in order for the husband to give evidence via video-link from Russia and that the husband would, in any event, likely use the grant of Letters of Request and their subsequent refusal by the Russian Federation as an excuse not to give evidence.

The United Kingdom is a party to the 1970 Hague Convention. Contrary to the advice provided to the husband’s solicitors by the FCDO Taking Evidence team, the Russian Federation is also a party to the 1970 Hague Convention

Chapter I of the 1970 Hague Convention deals with Letters of Request. Art 1 provides as follows regarding the obtaining of evidence from abroad:

“Article 1

In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of the law of that State, request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act.

A Letter shall not be used to obtain evidence which is not intended for use in judicial proceedings, commenced or contemplated.

The expression "other judicial act" does not cover the service of judicial documents or the issuance of any process by which judgments or orders are executed or enforced, or orders for provisional or protective measures.”

Chapter I of the 1970 Hague Convention also provides at Arts 10 to 12 for the compulsion of a witness by the requested State, the circumstances in which a witness may refuse to give evidence and the circumstances in which the requested State may refuse to take evidence:

“Article 10

In executing a Letter of Request the requested authority shall apply the appropriate measures of compulsion in the instances and to the same extent as are provided by its internal law for the execution of orders issued by the authorities of its own country or of requests made by parties in internal proceedings.

Article 11

In the execution of a Letter of Request the person concerned may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence –

a)

under the law of the State of execution; or

b)

under the law of the State of origin, and the privilege or duty has been specified in the Letter, or,

at the instance of the requested authority, has been otherwise confirmed to that authority by the requesting authority.

A Contracting State may declare that, in addition, it will respect privileges and duties existing under the law of States other than the State of origin and the State of execution, to the extent specified in that declaration.

Article 12

The execution of a Letter of Request may be refused only to the extent that –

a)

in the State of execution the execution of the Letter does not fall within the functions of the judiciary; or

b)

the State addressed considers that its sovereignty or security would be prejudiced thereby.

Execution may not be refused solely on the ground that under its internal law the State of execution claims exclusive jurisdiction over the subject-matter of the action or that its internal law would not admit a right of action on it.”

Finally with respect to the 1970 Hague Convention, Chapter III contains two further clauses of particular relevance to the question before this court:

“Article 27

The provisions of the present Convention shall not prevent a Contracting State from –

a)

declaring that Letters of Request may be transmitted to its judicial authorities through channels other than those provided for in Article 2;

b)

permitting, by internal law or practice, any act provided for in this Convention to be performed upon less restrictive conditions;

c)

permitting, by internal law or practice, methods of taking evidence other than those provided for in this Convention.”

And:

“Article 36

Any difficulties which may arise between Contracting States in connection with the operation of this Convention shall be settled through diplomatic channels.”

Neither the Explanatory Report on the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (hereafter “the Explanatory Report”) nor the more extensive report that accompanied the draft 1970 Hague Convention assist greatly with the issue before the court, given the dates on which they were produced. However, the Explanatory Report further clarifies the meaning of Art 27(c) at [236] as follows:

“[236] It provides, in sub-division (c), for methods of taking evidence other than those provided in the Convention, to the extent that internal law and practice will permit. This means taking evidence without either a Letter of Request or the use of a consul or commissioner.”

With respect to the domestic position, FPR 2010 r.22.3 permits the Family Court to allow a witness to give evidence through a video-link. FPR PD22A Annex 3 at [5] provides as follows with respect to taking evidence by way of a video-link from a witness located in another country:

“[5] It should not be presumed that all foreign governments are willing to allow their nationals or others within their jurisdiction to be examined before a court in England or Wales by means of VCF. If there is any doubt about this, enquiries should be directed to the Foreign and Commonwealth Office (International Legal Matters Unit, Consular Division) with a view to ensuring that the country from which the evidence is to be taken raises no objection to it at diplomatic level. The party who is directed to be responsible for arranging the VCF (see paragraph 8) will be required to make all necessary inquiries about this well in advance of the VCF and must be able to inform the court what those inquiries were and of their outcome.”

FPR PD22A thus requires an enquiry of the Foreign, Commonwealth and Development Office (International Legal Matters Unit, Consular Division) only if there is any doubt about the position in the other jurisdiction. Further, and in any event, as the domestic authorities discussed below make clear, the court is able to direct the disclosure or giving of evidence from abroad notwithstanding “any doubt” caused by the legal position in the foreign jurisdiction.

I am satisfied that it is not necessary in this case to issue Letters of Request to the Russian Federation in order for the husband to be able to give evidence at the final hearing. My reasons for so deciding are as follows.

I deal first with the legal principles that govern the question of whether it is necessary for Letters of Request under the 1970 Hague Convention to be obtained in circumstances where the husband volunteers to give evidence in family proceedings in this jurisdiction by way of video-link from the Russian Federation. In doing so, it is necessary to define properly the method of giving evidence that is in issue in this case and to establish the position with respect to that mechanism under the 1970 Hague Convention; to determine whether the 1970 Hague Convention is mandatory in its operation in the Contracting States to the Convention; and, if it is not, to define the proper limits for taking evidence by video-link from abroad outside the confines of the 1970 Hague Convention.

Starting with the method of giving evidence that is in issue in this case, whilst it has long been established that the use of video-link technology is “consistent” with the framework of the 1970 Hague Convention, (Footnote: ¹) when considering the import of the 1970 Hague Convention in the present case, and as identified in the HCCH Guide to Good Practice under the 1970 Hague Convention – The Use of Video-Link (hereafter “the Guide to Good Practice”), it is important to distinguish between two different methods used “to take evidence by video-link”. Namely, giving evidence given by video-link “indirectly” and evidence given by video-link “directly”.

As to evidence given by video-link “indirectly”, Chapter I of the 1970 Hague Convention contemplates that the evidence requested by way of Letters of Request, will be taken by the competent judicial authority in the requested State (Chapter II deals with evidence taken by diplomatic agents, consular officers and commissioners). Following Letters of Request, in the ordinary course, a proceeding will be arranged in the requested State at which the competent judicial authority will take the evidence in question. Pursuant to Art 9 of the 1970 Hague Convention, the requested State will proceed according to the law of that State, although the requested State will follow a request of the requesting authority that a special method or procedure be followed, unless this is incompatible with the internal law, practice or procedure of the requested State or is impractical. As Nicklin J noted in Lawrence & others v Associated Newspapers Limited [2026] EWHC 451 (KB) at [23]:

“[23] A letter of request is a request for the assistance of the courts of the foreign jurisdiction in taking evidence for use in proceedings in this jurisdiction. As explained in Hollander on Documentary Evidence (15th edition) (§29-01), “this involves the English Court being willing to make an order and the foreign court (whether because of mutual obligations or otherwise) being willing to give effect to it”.

By contrast, evidence given by video-link “directly” involves the remote attendance of the party or witness at a hearing taking place in the requesting State. With respect to this method, the Guide to Good Practice recognises that it arises out of the continuing advancement of technology:

“[38] As mentioned above, the Evidence Convention understandably makes no mention of video-link or of the possibility of direct taking of evidence under Chapter I, having been drafted at a time when computer technology and global air travel were at earlier stages of development, and indirect taking of evidence was the norm.”

The present case concerns the latter method. Namely, a party, in this case the husband, in another Contracting State, in this case the Russian Federation, giving evidence “directly” to the court in this jurisdiction by way of video-link.

With respect to the position under the 1970 Hague Convention on the giving of evidence “directly” in another Contracting State by way of video-link, the Guide to Good Practiceconcludes that Chapter I would not appear to allow direct taking of evidence by the requesting State by way of a video-link to the requested State. However, the Guide to Good Practice also observes at [40] that:

“The Country Profiles reveal that the responding States are almost evenly divided as to whether evidence may be taken directly by video-link under Chapter I of the Convention. There is no clear trend in this regard.”

As to the genesis of the differing views taken by the Contracting States on whether or not Chapter I allows the direct taking of evidence by video-link, the Guide to Good Practiceobserves that it centres on the question of sovereignty:

“[29] Despite the increasing use of video-link in legal proceedings worldwide, the Contracting Party in whose territory the witness is located may nonetheless have concerns related to its sovereignty, as the testimony is de facto being provided in its territory for the purposes of foreign judicial proceedings”.

Against this, by the terms of Art 27(c) a Contracting State to the 1970 Hague Convention is not prevented from permitting, by internal law or practice, methods of taking evidence other than those provided for in the Convention. The Guide to Good Practice states as follows at [A1.1] regarding operation of Art 27 of the 1970 Hague Convention in the context of taking evidence by way of video-link:

“A1.1 Legal bases

a.

The use of video-link under internal law

1.

By virtue of Article 27, the Convention does not prevent the use of internal law to take evidence by video-link under less restrictive conditions.

2.

First, authorities should verify whether the taking of evidence by video-link is allowed under the internal law of the place where proceedings are pending.

3.

Second, authorities should verify whether the taking of evidence by video-link is not contrary to the internal law of the place from which evidence is to be taken, including any existing “blocking statutes” or criminal laws.”

Thus, with respect to the the taking of evidence directly by video-link, the Guide to Good Practiceadvises that parties should look to the internal law of the relevant Contracting State to verify if any additional restrictions on taking direct evidence remotely are imposed. (Footnote: ²) The Guide to Good Practice further contemplates the use of the mechanism in Art 1 for Letters of Request to achieve the taking of evidence directly by way of video-link. In this regard, paragraph [35]A1.2 of the Guide to Good Practivemakes following recommendation:

“Contracting Parties are divided as to whether direct taking of evidence is permitted under Chapter I of the Convention. Authorities should verify whether direct taking of evidence is permitted in the place where the evidence is located before filing a Letter of Request for this purpose.”

In light position set out in the Guide to Good Practice, the next question that arises in respect of the applicable legal framework for taking direct evidence by video-link abroad in family proceedings is whether the operation of the 1970 Hague Convention is mandatory in Contracting States to the Convention. The Good Practice Guide again records a difference of opinion between the Contracting States on this question:

“Contracting Parties remain divided as to whether the Convention is of a mandatory character (i.e., whether the Convention needs to be applied whenever evidence is to be taken abroad)”.

With respect to the position in this jurisdiction on the question of whether the 1970 Hague Convention is mandatory, the starting point is Brannigan v Davison [1997] AC 238. In Brannigan v Davison the Privy Council held that risk of prosecution in another country should not be an absolute reason for refusing to answer questions or refusing to produce documents, Lord Nicholls holding at pp. 249H-250B that:

“Different countries have their own interests to pursue. At times national interests conflict. In its simple, absolute, unqualified form the privilege, established in a domestic law setting, cannot be extended to include foreign law without encroaching unacceptably upon the domestic country’s legitimate interest in the conduct of its own judicial proceedings.”

In Brannigan v Davison, the Privy Council was dealing with the prospect that giving oral evidence in this jurisdiction would constitute an offence in another country. Again, Lord Nicholls was satisfied that, if it would, this would not be a reason refuse to hear that oral evidence:

“But when the privilege against giving self-incriminating evidence of prior conduct is not available because of the foreign law element, the privilege likewise cannot avail a witness where the crime under the foreign law would lie in the fact of giving evidence. The reason, already stated, why the privilege is not available in the former case (of prior conduct) applies also in the latter case.”

In Morris v Banque Arabe [2001] ILPR 37 Neuberger J (as he then was) was required to decide whether the CPR permitted a litigant to avoid giving disclosure in circumstances where he would be acting in contravention of legislation of another country in which he carries on business, is domiciled and resident, and where the documents in question are situated. Importantly for the present purposes, Neuberger J was also required to consider the impact in that context of the other country being a signatory to the 1970 Hague Convention. Citing the decision of the Privy Council in Brannigan v Davison as “if not decisive, close to decisive”, Neuberger J ordered disclosure notwithstanding that affording it would constitute a criminal offence on the part of the defendant. In rejecting the submission that he should refuse disclosure and adjourn that question to permit an application to the French court under the 1970 Hague Convention, Neuberger J implicitly treated the Convention as optional and placed considerable emphasis on the delay that would be engendered if was relied upon, which has a certain resonance in the present case:

“[82] It is therefore possible that, even if I was otherwise minded to give BAII the opportunity to proceed in the French courts under the Hague Convention (which I am not), rather than making an order for inspection now, this litigation, which has already proceeded at far too leisurely a pace and relates to matters which occurred a long time ago, would hold up even more than it would if the application to the French courts succeeded. This litigation should proceed very swiftly (consummate with justice and proper preparation) in light of the fact that it relates to matters which occurred a long time ago, and which require to be investigated as soon as reasonably possible.”

Whilst the 1970 Hague Convention must be given an autonomous interpretation, the approach of Neuberger J in Morris v Banque Arabe is consistent with the terms of Art 1 of the Convention. Art 1 provides that “a judicial authority of a Contracting State may, in accordance with the provisions of the law of that State, request the competent authority of another Contracting State, by means of a Letter of Request...” (emphasis added). Other jurisdictions have also held in these circumstances that the 1970 Hague Convention is not mandatory given the terms of Art 1. For example, in Nationale Industrielle Aérospatiale v. United States District Court for the Southern District of Iowa 107 S. Ct. 2542, the United States Supreme Court held that the 1970 Hague Convention was non-mandatory. The court based its conclusion primarily on the permissive language of Art 1 of the Convention. In this context, also of significance is the fact that, based on the principle of first resort, the HCCH Special Commission on the 1970 Hague Convention recommended only that Contracting States give priority to the Convention when evidence abroad is being sought, the the Guide to Good Practice acknowledging at [35] that:

“...the Convention seeks to operate harmoniously with other instruments and internal law that provide more favourable and less restrictive rules of international judicial co-operation in the taking of evidence, including the use of video-link to examine witnesses abroad.”

More recently it has been suggested that the decisions of the Upper Tribunal in Nare (evidence by electronic means) Zimbabwe [2011] UKUT 00443 (IAC), [2012] Imm AR 207 (hereafter “Nare”) and Agbabiaka (evidence from abroad, Nare guidance) Nigeria [2021] UKUT 286 (IAC), [2022] Imm. A.R. 207 (hereafter “Agbabiaka”) are authority for the proposition that the 1970 Hague Convention must be used in family proceedings in this jurisdiction, with the effect that taking direct evidence by video-link from abroad can only take place with the permission of the other Contracting State, secured through the process outlined in Agbabiaka. I am, however, satisfied that neither Nare or Agbabiaka is applicable to family proceedings.

In Nare, the Upper Tribunal (Immigration and Asylum Chamber) stated that where it is proposed that a party give evidence from abroad, the party seeking permission must be in a position to inform the Tribunal that the relevant foreign government raises no objection to live evidence being given from within its jurisdiction to a Tribunal or court in the United Kingdom, in order to avoid an adverse impact on diplomatic relations. This approach was reiterated by the Upper Tribunal (Immigration and Asylum Chamber) in Agbabiaka by reference to the 1970 Hague Convention. The Upper Tribunal held in Agbabiaka that:

“[12] There has long been an understanding among Nation States that one State should not seek to exercise the powers of its courts within the territory of another, without having the permission of that other State to do so. Any breach of that understanding by a court or tribunal in the United Kingdom risks damaging this country’s diplomatic relations with other States and is, thus, contrary to the public interest. The potential damage includes harm to the interests of justice since, if a court or tribunal acts in such a way as to damage international relations with another State, this risks permission being refused in subsequent cases, where evidence needs to be taken from within that State.”

In SA v AA [2023] EWHC 2016 (Fam), Mr David Lock QC, sitting as Deputy High Court Judge, held that the position set out in Nare and in Agbabiaka applies equally to family proceedings having regard to the contents of PD22A, describing the approach taken in Agbabiaka as “the usual position”. However, neither Nare or Agbabiaka concerned family proceedings. The considerations in family proceedings are different from those pertaining in immigration cases. The Overriding Objective in FPR 2010 r.1.1 includes the need to deal with cases expeditiously and r. 22.3 of the FPR 2010 permits the court to receive evidence remotely. The decisions of the Upper Tribunal are not binding on the Family Court or the Family Division of the High Court. In any event, and more fundamentally, I accept the submission of the wife that the premise in Agbabiaka must be doubted having regard to the decision of the Court of Appeal in Raza v SS for Home Department [2023] EWCA Civ 29; [2023] Imm. A.R. 511.

In Raza v SS for Home Department, the Court of Appeal held as follows with respect to the nature of the potential adverse impact of taking evidence by video-link from Pakistan (which is not a Contracting Party to the 1970 Hague Convention), commenting on the decisions in Nare and Agbabiaka in the following terms:

“[76] The primary question for this Court is whether there is any provision or rule of domestic law which shows that the FtT hearing was unlawful and a nullity. There is none. The 2002 Act expressly requires some appeals to be made from, and some to be continued from, abroad. The 2002 Act does not provide that the lawfulness of such appeals depends on any condition, such as the obtaining of permission from a foreign state. The Rules assume that a hearing can be conducted partly by video-link. The Rules do not provide for any further conditions in relation to the taking of evidence from abroad. Neither Nare nor Agbabiaka suggests that the taking of video evidence from abroad without the permission of the state concerned is unlawful, or that it makes the hearing a nullity. Agbabiaka suggests that such a hearing might be contrary to the public interest because of its potential to damage international relations, and, thus contrary to the interests of justice, but that is a different point. I accept Mr Kovats's submission that the sanctions for such conduct are diplomatic, not legal.”

In Raza v SS for Home Department the Court of Appeal noted that, in the context of immigration cases, the relevant rules assume that a hearing can be conducted partly by video-link and do not provide for any further conditions in relation to the taking of evidence from abroad. I pause to note that the family proceedings the rules likewise provide for evidence to be taken by video-link and also do not stipulate any further conditions in relation to the taking of evidence from abroad, albeit PD22A provides guidance on the issue.

In the foregoing context, in Newcastle CC v JK [2025] EWHC 1767 (Fam) Poole J rejected the proposition that Agbabiaka is applicable to family proceedings and summarised the position in respect of taking direct evidence by video-link from abroad in such proceedings as follows:

“[117] Those conclusions [in Agbabiaka] are drawn in wide terms and reference is made to the process within civil and commercial courts, but the Upper Tribunal gave guidance that expressly applied to an “administrative tribunal”. The decision is not binding on the Family Court or the Family Division of the High Court nor did it purport to be. Different considerations apply to family proceedings than to an administrative tribunal and in that respect, and more generally, I take into account the following factors:

a.

The Children Act 1989 (CA 1989) s1(1) provides that when a court determines any question with respect to the upbringing of a child, the child’s welfare shall be the court’s paramount consideration.

b.

CA 1989 s1(2) requires the Court to have regard to the general principle that delay is likely to prejudice the welfare of the child.

c.

In public law proceedings the Court is subject to a statutory obligation to complete care proceedings in 26 weeks – Children Act 1989 s32(1)(a)(ii) introduced by the Children and Families Act 2014 s14;

d.

The Family Procedure Rules enjoin the Court to manage cases so as to give effect to the Overriding Objective including to ensure that cases are dealt with expeditiously and fairly and saving expense.

e.

Taking evidence from abroad without the other country’s permission is not unlawful. In Raza v Secretary of State for the Home Department [2023] EWCA Civ 29, the Court of Appeal held:

“Neither Nare nor Agbabiaka suggests that the taking of video evidence from abroad without the permission of the state concerned is unlawful, or that it makes the hearing a nullity. Agbabiaka suggests that such a hearing might be contrary to the public interest because of its potential to damage international relations, and, thus contrary to the interests of justice, but that is a different point.”

f.

There is now a firmly established practice of evidence being taken from abroad by video-link in family proceedings. In Hague Convention 1980 cases it is routine practice. Similarly, in wardship cases where the child is abroad with a parent who is refusing to return the child. To my knowledge this practice has not given rise to any diplomatic difficulties for the FCDO.

g.

In many cases parents or witnesses abroad cannot realistically travel to England for the purpose of giving evidence. Legal, financial, or other restrictions may be imposed on them.

h.

By taking such evidence the Court is not seeking to exercise its powers abroad by imposing restrictions on the witness or by regulating their conduct. Indeed, one of the disadvantages of taking evidence remotely from abroad is the difficulty in enforcing appropriate conduct by the person giving evidence.

i.

The Court in family proceedings may sometimes seek to exercise powers over a person who is abroad, for example by making a return order under the inherent jurisdiction, but the talking of evidence is not in itself an exercise of such powers. The Court may require a person to attend a hearing remotely even though they are abroad, but the enforcement of such an order is problematic to say the least. In the great majority of cases the witness or party voluntarily attends to give evidence and no power is exercised over them by taking their evidence.

j.

The Court in this jurisdiction is not seeking to exercise any powers over the authorities in another country in family proceedings.

k.

Accordingly, it is very difficult to see how diplomatic relations could possibly be damaged by taking evidence in family proceedings by video-link from a voluntary witness in a private room abroad.

l.

In a particular case a specific concern might arise about the risk to diplomatic relations from taking evidence from a witness abroad. In such a case the matter should be raised with the Judge before communication with the FCDO. Absent such circumstances there will be no “doubt” as addressed by FPR r 22A Annex 3 paragraph 5.”

For the foregoing reasons, I agree with Poole J that neither Nare or Agbabiaka has any application to family proceedings. It has been the longstanding practice in family proceedings (Footnote: ³) in the Family Court and the Family Division of the High Court not to treat the 1970 Hague Convention as mandatory and to permit a party or witness who volunteers to giving evidence from abroad by way of video-link to do so, without engaging the procedure under the Convention. This practice has been driven by the imperative articulated in r.1.1(2)(a) of the FPR 2010 and, in relation to children, in s.1(2) of the Children Act 1989 and Art 11 of the 1980 Hague Convention to deal with family proceedings expeditiously. This court is not aware of any reported case in the Family Court or the Family Division of the High Court where this approach has created a difficulty with another State at a diplomatic level. It is a practice entirely consistent with the long line of authority dealt with above and, further, below (Footnote: ⁴) (and not cited in either Nare or Agbabiaka) which proceed on the basis that the use of the 1970 Hague Convention is not mandatory, or exclusive, in this jurisdiction.

Finally, in circumstances where I am satisfied that, in cases in which it could apply, the use of the 1970 Hague Convention is not mandatory in family proceedings, the question arises as to the proper limits to taking evidence from abroad without reference to the procedure provided by the 1970 Hague Convention. In particular, the impact of the position of the witness or party under the law of the jurisdiction from which they have volunteered to give evidence.

Dicey, Morris & Collins on the Conflict of Laws (16th edition) (at 10R-080, Rule 29) comment that “nothing prevents a party from obtaining evidence from a third party abroad without compulsion of law, provided that this is not contrary to the law of the place where the evidence is to be obtained.” However, a long line of domestic authority suggests that a prohibition contained in the law of the place where the evidence is located is generally not a valid reason for refusing a direction requiring that evidence to be disclosed to or given in this jurisdiction.

In Partenreederei M/s Heidberg v. Grosvenor Grain and Feed Co. Ltd [1993] 2 Lloyd’s Rep. 324, two French defendant companies sought to set aside disclosure orders made against them on the basis that they were prohibited by French law from complying and would commit a criminal offence in doing so. The application to set aside the disclosure orders was refused. Cresswell J held that issues of disclosure, as procedural matters, are properly a matter for the lex fori, concluding that “all matters of procedure are governed by the domestic law of the country to which the court wherein any legal proceedings are taken belongs”.

As I have set out above, in Brannigan v Davison [1997] AC 238, the Privy Council held that risk of prosecution in another country should not be an absolute reason for refusing to answer questions or refusing to produce documents. Brannigan v Davison, is particularly important in the present context in circumstances where the Privy Council was dealing with the question of whether giving oral evidence in this jurisdiction would constitute an offence in another country.

The recent decision of Joshua v Renault SA [2024] EWHC 1424 (KB) the court again held that it had jurisdiction to order disclosure where compliance might entail a breach of foreign criminal law, applying Bank Mellat v HM Treasury [2019] EWCA Civ 449, [2019] 3 WLUK 252.

Lastly with respect to this line of authority, in Lawrence & others v Associated Newspapers Limited [2026] EWHC 451 (KB) Nicklin J relied on the Australian case of Joyce v Sunland Waterfront (BVI) Ltd [2011] FCAFC 95, a decision of the Full Court of the Federal Court of Australia overturning a decision refusing to permit a party-witness to give evidence by video-link from Dubai. Having noted the distinction drawn by the Federal Court between the exercise of judicial or administrative acts on foreign territory such as a judge or examiner travelling abroad to take evidence, and the voluntary act of a person, physically located in a foreign state, giving evidence by video-link to a foreign court without seeking the assistance, facilities, or authority of the foreign state, Nicklin J noted the following aspects of the Australian decision:

“[34] The latter, the Court held, does not constitute an exercise of judicial power on foreign territory and does not, of itself, infringe the sovereignty of the foreign state.

[35] The Full Court emphasised that comity concerns the relationship between states, not the voluntary conduct of individuals. Therefore, provided that (a) the witness participates voluntarily; and (b) the law of the foreign state does not prohibit the giving of evidence by video-link, there is no breach of sovereignty and no requirement, as a matter of law, that the foreign state consents to the giving of such evidence.

[36] The Court rejected the notion that the possibility of judicial directions being given during cross-examination (for example, requiring a witness to answer a question) transformed the process into an impermissible assertion of jurisdiction abroad. Orders made by a court bind parties who have submitted to its jurisdiction, even if compliance occurs while they are abroad; that does not, without more, engage foreign sovereignty.

[37] Importantly, the Court held that the Australian Parliament had already struck the relevant balance by enacting the relevant law permitting the use of video-link, which was s.47A Federal Court of Australia Act 1976, which expressly authorised evidence to be taken by video-link from persons outside Australia. The statute contained no requirement that a foreign state consent to such evidence, save in relation to whether the foreign law prohibits or makes inconvenient the taking of evidence on oath or affirmation. The court held that to import a general consent requirement based on comity would be to add a limitation not found in the legislation.

[38] While acknowledging that courts often, and prudently, consult executive authorities (such as the equivalent to the Department of Foreign, Commonwealth & Development Office) when foreign states are involved, the Federal Court of Australia made clear that executive caution or diplomatic reluctance does not of itself constrain the court’s statutory power. Comity may inform the exercise of discretion, but it cannot override a power conferred by Parliament absent a demonstrated conflict with foreign law.

[39] The Court concluded that, unless the law of the foreign state forbids the giving of evidence by video-link, concerns of sovereignty and comity do not preclude a Court from permitting such evidence. The refusal of permission on comity grounds therefore involved the consideration of an irrelevant factor and amounted to a miscarriage of discretion.”

In light of the foregoing exegesis, I am satisfied that the following principles govern the taking of evidence from abroad by video-link in family proceedings in this jurisdiction from a witness or party who, as the husband does in this case, volunteers to give evidence in that manner:

Applying the foregoing principles to the facts of this case, I am satisfied that it is not necessary to grant the husband’s application for the issue of Letters of Request in this case.

Whilst both the United Kingdom and the Russian Federation are parties to the 1970 Hague Convention, for the reasons I have set out above the use of the Convention is not mandatory and, in family proceedings, it will ordinarily be necessary to proceed without reference to the procedure under the 1970 Hague Convention in order to maintain fidelity to the need to deal with cases fairly and expeditiously for the purposes of the Overriding Objective. I am satisfied that that is the position in this case.

Whilst financial remedy proceedings do not carry with them quite the imperative of urgency that proceedings in relation to children do, including proceedings under the 1980 Hague Convention, the need to deal with such proceedings efficiently remains. The Overriding Objective requires the court to deal with financial remedy proceedings both fairly and expeditiously. As I have already observed in a Potanina v Potanin (Case Management) [2026] EWFC 80, and as will again be readily apparent from the background of this matter as set out above, these proceedings have now been on foot for 8 years. Further delay must be avoided in this case. There is no evidence before the court as to the timescales involved in issuing and gaining a response from the Russian Federation to Letters of Request. The experience of this court is that the procedure can, where it has been used, introduce long delays in proceedings.

This is not a case in which the court is required to compel, or by its order is compelling, a Russian national to give evidence before the courts of England and Wales. The husband, sensibly and helpfully, volunteers to give evidence at the final hearing by way of video-link, provided that doing so would not breach any applicable laws. As I have noted, there is no evidence before the court to suggest that he is not permitted to give direct evidence by way of video-link from Russia, which would in any event be inconsistent with his willingness to do so in these proceedings and in the proceedings in Potanin v Charity Commission for England & Wales. Not is there any evidence that to do so would breach Russian law. As such, I am satisfied that there is no “doubt” for the purposes of FPR PD 22A. The court is further entitled to proceed on the basis of the husband’s agreement and to assume that he would not willingly place himself at risk of civil or criminal sanction in the Russian Federation.

I acknowledge that the Foreign Process section has informed those representing the husband that there is no standing permission for the taking of evidence by an English court on Russian soil. However, there is no suggestion that either the Foreign Process Section or the FCDO considers that an application for Letters of Request must be made and granted in this case before the husband could give direct evidence by video-link. For the reasons I have explained, this court is entitled to case manage its own proceedings and does not act unlawfully in directing the husband to give direct evidence by means of video-link notwithstanding an absence of permission from the Russian Federation.

In all the circumstances, I am satisfied that it is not necessary to issue Letters of Request in order to facilitate the voluntary giving of video-link evidence by the husband at the final hearing of these proceedings.

I make clear that my decision should not be taken by the wife as a tacit acceptance by the court of her assertion that the husband holds powerful influence over the courts in Russia and will use any refusal of Letters of Request as an excuse not to do so. That is not the basis of my decision and I have made no finding to that effect. The court’s decision that it is not necessary to grant the husband’s application for Letters of Request is based solely on the legal analysis set out above. Further, in light of the prior lack of clarity as to the position in family proceedings in respect of direct evidence from abroad by video-link demonstrated by that analysis, I do not criticise the husband for having issued the application that he did.

Accordingly, I decline to grant the husband’s application for Letters of Request and direct that any oral evidence he is required to give at the final hearing in these proceedings shall be given directly by way of remote video-link.

It is important to state in clear terms that nothing I have said in this judgment should be taken to suggest that the 1970 Hague Convention should be disregarded. Rather, it is simply to recognise that the 1970 Hague Convention is not mandatory in its operation and, in the particular circumstances generated by family proceedings, including the imperative to avoid delay, it will ordinarily be necessary to adopt a procedure outside the confines of the 1970 Hague Convention in order to maintain fidelity to the Overriding Objective in FPR Part 1 and, in cases concerning children, s.1(2) of the Children Act 1989 or Art 11 of the 1980 Hague Convention. There will be cases, likely very limited in number, in which the 1970 Hague Convention does provide the appropriate legal framework for securing evidence from abroad in family proceedings. In particular, and as noted, in cases where it is necessary in family proceedings to compel a witness or party to give evidence from abroad, it may well be prudent to follow the procedure prescribed by the 1970 Hague Convention (see the notes in the White Book at [34.13.1]).

Finally, it also is important to note that this is a decision of the Family Court decided in the context of the FPR 2010. It considers the position in family proceedings in the Family Court and the Family Division of the High Court in respect of parties or witnesses who volunteer to given direct evidence by way of video-link from abroad. It does not purport to, nor could it, govern practice in other jurisdictions.