N (A Child) (Ukraine: Art. 13 (b)) (No. 2), Re

In an application for summary return under the 1980 Hague Convention, an Article 13(b) defence requires evidence establishing a grave risk of harm or an intolerable situation. Where proposed alternative arrangements materially reduce the identified danger, the court may assess the risk by reference to those arrangements rather than the child’s original location.

Psychological harm must be assessed in the round, including the child’s wishes and feelings, relationships, identity, education and the consequences of separation. Protective undertakings may enable an immediate return where they provide sufficiently robust safeguards and will be placed before the courts of the child’s habitual residence. Formal registration of the undertakings before return is not necessarily required.

The father applied under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention, for the summary return of his son, N, to Ukraine. In an earlier judgment, the court had identified concerns about N’s safety in X Town and adjourned consideration of updated arrangements.

The father proposed that N live temporarily in one of three alternative Ukrainian locations, principally T Town, and offered undertakings concerning residence, contact, non-harassment and the conduct of proceedings. The mother relied on physical risks arising from the war, possible conscription of the father, psychological harm, separation from her and unfamiliarity with the proposed locations. The central issue was whether the updated evidence established an Article 13(b) grave risk or intolerable situation.

1. Return order. The court rejected the mother’s Article 13(b) defence and ordered N’s return to Ukraine by no later than 3 June 2024.
2. The court distinguished the risks in X Town from those in the alternative locations. T Town had not been repeatedly attacked, there was no evidence of a comparable dangerous facility, and there had been no civilian fatalities. On the evidence, residence in T Town, or a similar town, did not expose N to a grave risk of physical harm or an intolerable situation.
3. The alleged psychological harm did not meet the Article 13(b) threshold. The court considered the evidence cumulatively, including N’s wishes and feelings, his relationship with his father, his Ukrainian identity, his dog, friends, education and the likely arrangements for contact with his mother. Although N had expressed a preference for X Town, the evidence also showed a wish to return to Ukraine generally. The court concluded that continued separation from Ukraine, his father and his wider connections would be more psychologically harmful.
4. The risks concerning the war and possible conscription were theoretical, possible future risks which existed whether N was in Ukraine or England. They did not establish grave risk or intolerability on the evidence.
5. The father’s undertakings constituted robust and efficacious protective measures. They included relocation to T Town, remaining there pending further order, non-prosecution and non-harassment obligations, and facilitating contact. The court accepted that formal registration in Ukraine before return was unnecessary. Delay would be inconsistent with the obligation to make a return order forthwith, and the measures were recognised and enforceable by operation of law under the 1996 Hague Convention. The undertakings would in any event be offered to the Ukrainian court.
6. The protective arrangements did not usurp the functions of the Ukrainian courts. Consistently with comity and the purpose of the 1980 Hague Convention, the Ukrainian court remained responsible for the full welfare determination and the comparative assessment of N’s future arrangements.