E: Special Guardianship Order: Ukraine, Re

In determining whether a Special Guardianship Order was in a child’s welfare interests, the court was required to treat the child’s welfare as paramount. Parenthood was an important factor, but it was not determinative. The court could make an order securing the child’s residence and decision-making arrangements despite the position of the child’s country of nationality, where the child was habitually resident in England and Wales and remained a ward of court.

Where a child consistently opposed contact and was not subject to undue influence, forced contact was likely to cause harm. The appropriate course could be to respect the child’s wishes while preserving and encouraging the possibility of future contact.

The application concerned a 12-year-old Ukrainian child who had travelled to England from Ukraine after the Russian invasion and had lived with her maternal aunt and the aunt’s husband since March 2022. The aunt sought a Special Guardianship Order. The child’s mother opposed it, alleging deliberate alienation and seeking either the child’s return or a Child Arrangements Order.

The child had made allegations of harmful treatment in Ukraine and consistently wished to remain with her aunt and to have no direct communication with her mother until she was ready. The Hague Convention application brought by the mother had been dismissed, and the court had declared the child habitually resident in England and Wales. The central issues were the truth of the alienation allegations, the appropriate order for the child’s care, and the immediate and future arrangements for contact.

1. Findings of fact. The mother had not proved her allegations of deliberate alienation on the balance of probabilities. The court accepted that the aunt had encouraged the child to maintain relationships with her mother, grandparents and Ukrainian culture, while recognising that unconscious influence could not be entirely discounted.
2. Jurisdiction and welfare. The Ukrainian Consul’s evidence did not prevent the court making either a Special Guardianship Order or a Child Arrangements Order. The child was habitually resident in England and Wales and remained a ward of court. Applying In re J (a child) (FC) [2005] UKHL 40 at paragraph 22, the court had jurisdiction to determine the arrangements. Parentage was an important factor, but the child’s welfare remained paramount, consistently with Re H (A Child) (Appeal) [2016] 2 FLR 1171 at paragraph 88.
3. Special Guardianship. A Special Guardianship Order was more consistent with the child’s welfare than a Child Arrangements Order. It provided additional security and stability until the child reached 18 and reduced the prospect of further litigated disputes about important decisions.
4. Contact. The child’s wishes and feelings were clear and consistent. She was not subject to undue influence and understood her own position. Forced contact carried a high risk of causing harm and was unlikely to assist the relationship. The court therefore respected her wish for distance while recognising that contact might resume if she were given time, space and control over its restoration.
5. The court made the Special Guardianship Order, discharged wardship, varied and extended the prohibited steps order to 2028, ordered that the special guardians hold the child’s passport and travel documents, and directed provision of an unanonymised judgment to the Secretary of State for the Home Office and the Ukrainian Consul.

Not stated in the judgment.