N (A Child) (Ukraine: Art. 13 (b)) (No. 2), Re
[2024] EWHC 1282 (Fam)
N (A Child) (Ukraine: Art. 13 (b)), Re
17 April 2024
[2024] EWHC 871 (Fam)
High Court
A dad wants his son back in Ukraine, but the mom says it's too dangerous because of the war. The judge isn't sure either, so he's asked the dad to find a safer place in Ukraine for the boy to live before making a decision. The judge wants to make sure the boy is safe and that the rules about bringing kids across countries are followed fairly.
Key Facts
- •A father applies for the summary return of his 12-year-old son, N, to Ukraine under the 1985 Child Abduction and Custody Act (incorporating the 1980 Hague Convention).
- •The mother, who is in a new relationship, brought N to England from Ukraine in December 2023 without the father's consent.
- •N's habitual residence was Ukraine.
- •N expresses a strong desire to return to Ukraine to live with his father.
- •The mother argues that returning N to Ukraine would expose him to a grave risk of harm due to the ongoing war and the father's alleged controlling behaviour.
- •X Town, where N would reside, has experienced some missile attacks, but evidence suggests it is not currently a major conflict zone.
- •The father offers several protective measures to mitigate any risks to N upon his return to Ukraine.
Legal Principles
The Hague Convention aims for the prompt return of wrongfully removed children to their habitual residence, unless there's a grave risk of harm or intolerability.
Hague Convention 1980; Article 12; Article 13(b)
Article 13(b) requires a 'grave' risk of physical or psychological harm or an intolerable situation for the child; the burden of proof lies on the person opposing return; the court assesses the risk at its highest and considers protective measures.
Re E (Children) [2011] UKSC 27; E v D (Return Order) [2022] EWHC 1216 (Fam); Re IG (A Child) [2021] EWCA 1123
The court has discretion whether to order return even if Article 13(b) applies; factors include the child's wishes and feelings, swift return, international comity, and deterrence of abduction.
In re M and Another (Children) [2007] UKHL 55
In assessing risk related to the war in Ukraine, the court considers the specific risks in the child’s location, not the country as a whole.
Q v R [2022] EWHC 2961 (Fam); Re Z (Children) [2023] EWHC 602
Outcomes
The application for summary return is adjourned.
The court finds a low, but still 'grave', risk of physical harm to N in X Town due to the proximity of a potential military target and the ongoing missile strikes in Ukraine. The court needs further evidence on alternative locations in Ukraine before making a decision.
The father is permitted to file evidence of alternative locations for N’s residence in Ukraine.
This allows the court to assess if a return to a safer area is possible. If the father cannot provide evidence of safer locations, the application will be dismissed.