High Court Orders Child's Return to Ukraine Amid War Concerns: [2024] EWHC 1282 (Fam)

In the case Re N (A Child) (Ukraine: Art. 13(b)) (No. 2) [2024] EWHC 1282 (Fam), the High Court ordered the return of a child, N, to Ukraine, despite concerns raised by the mother about the ongoing conflict. Deputy Judge John McKendrick KC ruled that the father's proposed alternative living arrangements in a safer region of western Ukraine mitigated the risks associated with the war. The court found that returning N to Ukraine, where he could reunite with his father and maintain his cultural identity, was in his best interests. The decision emphasizes the court's obligation to ensure that children under the Hague Convention are returned to their country of habitual residence unless a grave risk of harm is proven.

Case Overview:

• Case Name: Re N (A Child) (Ukraine: Art. 13(b)) (No. 2)

• Court: High Court of Justice, Family Division

• Judgment Date: 24 May 2024

• Judge: John McKendrick KC

• Keywords: Child Abduction, Hague Convention, Ukraine Conflict, Return Order, Article 13(b) Defense

Legal Issues:

Return Under the Hague Convention:

The central legal issue was whether the child, N, should be returned to Ukraine under the 1980 Hague Convention, despite the mother's argument that returning N to a war-affected country would expose him to a "grave risk of harm" under Article 13(b). The mother contended that N would be psychologically harmed by living in an unfamiliar area of Ukraine and potentially separated from her.

Court’s Analysis:

• Assessment of Risk: The court carefully considered the risks posed by the ongoing conflict in Ukraine. Deputy Judge McKendrick KC acknowledged the mother's concerns but determined that the father's proposed relocation to a safer area in western Ukraine sufficiently mitigated these risks. The judge emphasized that the court's role under the Hague Convention is to ensure the child is returned to their country of habitual residence unless a clear and substantial risk of harm is proven.

• Child’s Best Interests: The court found that returning N to Ukraine, where he could maintain his cultural ties, relationships with his father, and overall sense of identity, outweighed the potential risks highlighted by the mother. The judge also noted that N had expressed a desire to return to Ukraine and be with his father.

• Protective Measures: The court accepted the father's undertakings to relocate to a safer region and to register these undertakings with the Ukrainian courts. The judge concluded that these measures were sufficient to protect N from harm until a full welfare assessment could be conducted by the Ukrainian courts.

Judgment Summary:

The High Court ordered N's return to Ukraine, rejecting the mother's Article 13(b) defense under the Hague Convention. The court found that the father's arrangements in a safer part of Ukraine, along with his undertakings to the court, provided sufficient protection for N. The judgment underscores the principle that the Hague Convention mandates the return of children to their habitual residence unless there is a clear and substantial risk of harm. The court emphasized that the Ukrainian courts are better positioned to conduct a full welfare analysis of N's situation.

Implications:

This decision reinforces the importance of the Hague Convention in resolving international child abduction cases, even in challenging circumstances such as ongoing conflicts. It highlights the court's role in balancing the need for a child's return to their habitual residence with concerns about their safety and well-being. The case also demonstrates the court's willingness to accept protective undertakings as a means of addressing potential risks.

References:

• Re A (Article 13b Ukraine) [2023] EWHC 3524 (Fam)

• Child Abduction and Custody Act 1985

For full details, refer to the published judgment.