A (Article 13b, Ukraine), Re
[2023] EWHC 3524 (Fam)
NW v SW
17 March 2023
[2023] EWHC 602 (Fam)
High Court
A dad wanted his kids back in Kyiv, Ukraine, but the court said no because it's too dangerous due to the war. So, the dad dropped his request to bring them back.
Key Facts
- •Father (NW) applied for the summary return of his two children from the UK to Kyiv, Ukraine under the Hague Convention 1980.
- •Mother (SW) and children left Ukraine at the start of the Russian invasion; father remained due to martial law.
- •Mother and children were granted asylum in the UK.
- •Father sought permission to withdraw his application due to the deteriorating security situation in Kyiv.
- •Children do not wish to return to Ukraine.
- •The case focused on Article 13(b) of the Hague Convention, concerning grave risk of harm.
Legal Principles
Article 13(b) of the Hague Convention 1980: A judicial authority is not bound to order the return of a child if there is a grave risk that their return would expose them to physical or psychological harm or place them in an intolerable situation.
Hague Convention 1980
Re IG (Child Abduction: Habitual Residence: Article 13b) [2021] EWCA Civ 1123 provides guidance on applying Article 13(b), emphasizing a structured approach to assessing risk and considering protective measures.
Re IG [2021] EWCA Civ 1123
Q v R [2022] EWHC 2961 (Fam) highlights the fact-specific nature of Article 13(b) assessments and the need for a granular approach to risk.
Q v R [2022] EWHC 2961 (Fam)
Re M (Abduction: Zimbabwe) [2007] UKHL 55 and Re D (a child) [2006] UKHL 51 confirm the court's discretion in Article 13(b) cases but emphasize that a child should not be returned to a situation of grave risk.
Re M [2007] UKHL 55, Re D [2006] UKHL 51
Outcomes
The father's application to withdraw his Hague Convention application was granted.
The court found that Article 13(b) of the Hague Convention was satisfied; there was a grave risk of physical harm to the children if returned to Kyiv due to ongoing missile attacks and the ongoing war. No protective measures could sufficiently mitigate this risk.