A (Article 13b, Ukraine), Re

Under Article 13(b) of the 1980 Hague Convention, a return may be ordered where protective measures sufficiently address the identified grave risk of harm. The court may assess the allegations at their highest when deciding whether proposed safeguards remove the risk. Protective measures may include confidential accommodation, financial provision, undertakings against harassment, and lodging the order with the court in the requested state. The existence of war does not itself prevent return where the child’s proposed place of residence is not materially affected. Once the high threshold is met, and return is in the child’s best interests, the court may order summary return subject to a backstop date and liberty to apply.

The father applied under the 1980 Hague Convention for the return of his daughter, aged three, to Ukraine. The mother accepted that the removal was in breach of the father’s rights of custody but relied on Article 13(b), alleging that return would expose the child and herself to a grave risk of harm arising from domestic abuse.

The court considered decisions made in Ukraine, the parties’ allegations, the continuing war, and protective measures offered by the father. The central issues were whether the alleged risk should be assessed at its highest, whether the proposed safeguards sufficiently addressed it, and whether summary return should be ordered.

1. The application was granted and the child’s summary return to Ukraine was ordered. The mother’s Article 13(b) defence was accepted in the sense that the alleged risk required consideration, but the protective measures were sufficient to prevent the risk crossing the high threshold required by Article 13(b) of the 1980 Hague Convention.

2. The court was entitled to take the mother’s allegations of domestic abuse at their highest. The Ukrainian court decisions did not preclude consideration of those allegations in the present proceedings. The relevant inquiry was whether the risk of harm to the mother and child could be sufficiently addressed by protective measures.

3. The proposed measures were adequate. They included confidential accommodation, an initial and continuing payment for accommodation, maintenance payments, an undertaking that the father would not threaten, pester or harass the mother, and lodging the English order with the Ukrainian court before return.

4. The war in Ukraine did not prevent return because the evidence indicated that the parties’ Ukrainian locality was not affected to a degree that materially limited the making of a return order.

5. Return was in the child’s best interests. A backstop date at the end of February was set, with liberty to apply in England and Wales for earlier return, postponement until the protective measures were in place, or setting aside the order if the father failed to comply with them.