Q v R

Habitual residence is a factual assessment of a child’s integration into a social and family environment. Where two states compete, the court should compare the child’s objective and subjective roots. Parental intentions are relevant but not decisive.

Under Article 13(b) of the 1980 Hague Child Abduction Convention, the court must assess the particular child, the proposed place of return, and the risks on return and thereafter. Generalised war risks do not suffice. Protective measures must address identified risks concretely and effectively. Where the exception is not established within Article 12’s one-year period, the return duty applies and the discretionary stage is not reached.

The mother applied under the 1980 Hague Child Abduction Convention for the summary return of E, aged five and a half, to Ukraine. E had lived there with his mother from the age of three months until April 2022, when they travelled to England under the family visa scheme following Russia’s invasion of Ukraine.

The father had commenced proceedings in the Reading Family Court and obtained a prohibited steps order. The Hague application raised whether E remained habitually resident in Ukraine immediately before the alleged retention on 24 June 2022 and, if so, whether return was precluded by Article 13(b) because of armed conflict, alleged unavailability of Ukrainian courts, and possible harm caused by disruption of E’s relationship with his father.

1. Habitual residence. The court treated habitual residence as a question of fact requiring a sufficient degree of integration into a social and family environment. Following the helpful comparative approach identified in Re B [2016] UKSC 4, the judge compared E’s objective and subjective roots in Ukraine and England. E had lived in Ukraine from three months old and was rooted there through his mother, home, grandmother, school, language, culture, friends and familiar environment. His approximately eight weeks in England, including schooling and life with a host family, had not sufficiently uprooted him. E therefore remained habitually resident in Ukraine.
2. Article 13(b). The father bore the burden of establishing that return would expose E to physical or psychological harm or otherwise place him in an intolerable situation. Grave risk required seriousness in the magnitude of the risk or its consequences. Intolerability was assessed by reference to what this particular child, in these particular circumstances, should be expected to tolerate.
3. The court had to examine the particular circumstances of E’s return to the proposed location and the risks on return and thereafter. Harm could arise from any source, including armed conflict, legal uncertainty and impairment of the parent-child relationship. The court should avoid generalised assumptions that return to a country experiencing war necessarily creates grave risk. Protective measures could take many forms, but had to ameliorate or negate the identified risk in a concrete and effective way. The court first assessed whether the allegations had sufficient detail and substance to constitute grave risk, then considered the mother’s evidence and proposed protective measures.
4. The evidence showed that Town B had not been subject to hostilities, was in the far west of Ukraine, and was not a military installation or central transport hub. The risk of missile attack or escalation was low, although not wholly excluded. The local court system was functioning, and the general allegation of corruption was unsupported by significant contrary evidence. The mother had a reliable history of safeguarding E and promoting his relationship with his father. Her undertakings to remove E if the conflict reached Town B and to support contact were sufficiently concrete to reduce the remaining risks below the Article 13(b) threshold.
5. The judge accepted the caution required in a paper assessment, while applying the principle in Re C (Children) (Abduction Article 13(b)) [2018] EWCA Civ 2834 that the court could still assess the credibility and substance of allegations. Oral evidence was unnecessary. The judge noted, without reaching that stage, that under Re M (Abduction: Zimbabwe) [2007] UKHL 55, any discretion following establishment of an exception would be at large and would require consideration of Convention policy, exception-related factors and welfare.
6. Article 13(b) was not established. The discretionary stage therefore did not arise, and the court ordered E’s return to Ukraine by a date around half-term. Contact was to continue, with the parties invited to develop direct and indirect arrangements. The Ukrainian courts retained primary jurisdiction over those issues under Article 7 of the 1996 Hague Child Protection Convention.

Reading Family Court — The father issued a C100 application on 24 June 2022 and obtained a prohibited steps order. Later orders led to a stay after the mother indicated that she would issue a Hague application.

High Court (Family Division) — On 5 August 2022 Sir Jonathan Cohen KC gave directions for a final hearing. Williams J heard the Hague application on 21 September 2022 and ordered E’s return to Ukraine.