Can a witness give evidence remotely from abroad without invoking the Hague Evidence Convention? In Potanina v Potanin (No.3) MacDonald J confirmed that, in family proceedings, the answer will ordinarily be yes where the witness volunteers to give evidence.
MacDonald J has provided welcome clarification that, in family proceedings, the ordinary procedure remains that a witness who volunteers to give evidence from abroad may do so directly by video-link without invoking the Hague Convention 1970 on the Taking of Evidence Abroad in Civil or Commercial Proceedings.
The practice of giving evidence by video-link from abroad has been long-established in family proceedings. The issue before MacDonald J was whether this practice required compliance with the Hague Convention procedure whenever a witness volunteered to give evidence from another jurisdiction. MacDonald J rejected that proposition.
The judgment establishes four propositions of practical propositions:
1. voluntary evidence may ordinarily be received by video-link;
2. the Hague Convention is not mandatory;
3. the consent from the foreign state is not ordinarily required; and
4. different considerations arise where the witness must be compelled.
The proceedings concerned a financial remedy application under the Matrimonial and Family Proceedings Act 1984. They arose in the context of the husband’s designation under the United Kingdom’s sanctions regime. Consequently, he was prohibited from entering or remaining in the United Kingdom and was subject to an asset freeze. He contended that these restrictions prevented his attendance at trial and deprived him of the means to arrange appropriate private security should he be required to travel to this jurisdiction. Although he was simultaneously engaged in commercial proceedings and previously engaged in First-tier Tribunal proceedings, no provision had been made for him to give evidence remotely from Russia.
Prior to the hearing, enquiries were directed to the Foreign, Commonwealth and Development Office’s Taking of Evidence Team pursuant to FPR PD22A. The response incorrectly advised that the Russian Federation was not a Contracting State to the Hague Convention and that the husband would therefore be required to proceed by way of a Letter of Request. An application was made on that basis.
Against that background, MacDonald J was required to determine the appropriate procedural mechanism by which the husband should give evidence. The judgment addresses a question of considerable practical importance: whether, in family proceedings, a witness who voluntarily agrees to give evidence by video-link from abroad must first comply with the procedures prescribed by the Hague Convention.
The Court answered that question firmly in the negative. MacDonald J distinguished the immigration authorities of Nare (Evidence by Electronic Means) Zimbabwe [2011] UKUT 00443 (IAC) and Agbabiaka (Evidence from Abroad; Nare Guidance) Nigeria [2021] UKUT 286 (IAC) previously considered appropriate in SA v AA [2023] EWHC 2016 (Fam). It was held that those decisions arose within a different statutory and procedural context and did not reflect the long-established practice of the Family Division. They, therefore, are not applicable to remote evidence in family proceedings.
This decision will be welcomed by family practitioners since it removes the uncertainty previously in existence of the approach and confirms the long-established practice in family proceedings. The impact of this approach is that is avoids unnecessary delay and expense where evidence can properly be taken via video-link.
Departing from newly established ordinary position, MacDonald J indicated that the Hague Convention should be utilised when a witness does not volunteer to give evidence via video-link from abroad and need to be compelled. Similarly, it was suggested that the Hague Convention should be utilised when, despite the witness volunteering to give evidence, there is a need for formal identification of such witness or when taking action for contempt or perjury.
Potanina is now likely to become the leading authority on the ordinary approach to voluntary video evidence from abroad in family proceedings. It provides certainty in the approach whilst preserving sufficient flexibility where compulsion or comity concerns arise.
The decision is another illustration of the Family Division’s pragmatic approach to remote participation following the widespread adoption of video hearings since the pandemic.
Although the judgment simplifies domestic procedure, it leaves unresolved the practical consequences should a foreign state regard the taking of evidence as contrary to its domestic law.
The full judgment can be accessed here: https://caselaw.nationalarchives.gov.uk/ewhc/fam/2026/1738
Teia Yule
