NW v SW

In an application under Article 13(b) of the Hague Convention 1980, risk must be assessed by reference to the particular child, the proposed return, and the specific part of the country concerned. A generalised conclusion that return to a country affected by armed conflict is unsafe is insufficient.

The court must first assess whether the alleged circumstances, if established, create a grave risk of harm or an intolerable situation. It must then consider whether the risk can be sufficiently ameliorated by protective measures. Where the risk arises from military action beyond the applicant’s control and cannot be mitigated, the exception is established and summary return should not be ordered.

The father applied under the Hague Convention 1980 for the summary return of his two children from England to Kyiv, where he remained during the Russian invasion of Ukraine. The mother resisted return on several grounds, including Article 13(b).

Before the final hearing, the father reassessed the circumstances and sought permission to withdraw his application. The court nevertheless assessed the Article 13(b) issue because of the public interest in possible returns to Ukraine. The central question was whether return to Kyiv would expose the children to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation.

1. Article 13(b) framework. Applying the structured approach in Re IG (Child Abduction: Habitual Residence: Article 13b) [2021] EWCA Civ 1123, the court first considered whether the alleged conditions, if true, would create a grave risk. It then considered whether the risk could be addressed or sufficiently ameliorated. The summary nature of Hague proceedings did not prevent an evaluative assessment of the evidence.
2. Specific and granular assessment. The assessment had to focus on these children, their proposed return, and Kyiv specifically. The court rejected any indiscriminate blanket approach to return to Ukraine. Q v R [2022] EWHC 2961 (Fam) was persuasive but fact-specific and distinguishable because it concerned a child’s return to a location far from hostilities.
3. Grave risk. The evidence from government advisories and reputable news sources established a grave risk of physical harm in Kyiv. The court could not confidently discount that risk. A possible risk of psychological harm was also foreseeable, but further evidence would have been required had that been the sole basis relied upon.
4. Protective measures. No protective measure or package of measures could sufficiently mitigate the risk. Kyiv remained a significant military, strategic and symbolic target, and the source of the risk was military action beyond the father’s control. The changed circumstances also materially distinguished the case from Q v R.
5. Discretion and disposal. Although the discretion following establishment of an Article 13(b) exception was at large under Re M (Abduction: Zimbabwe) [2007] UKHL 55, the court considered the observation in Re D (a child) [2006] UKHL 51 that return would be inconceivable where grave risk had been found. It would not order summary return. The father was granted permission to withdraw his Hague Convention application.