Z and X (Visit to Ukraine), Re

In determining an application for contact involving travel to a country affected by armed conflict, the child’s welfare remains the paramount consideration. The court must balance the importance of maintaining the parent-child relationship against physical and emotional risk, the child’s wishes and feelings, practicalities, cost, and the enforceability of protective arrangements.

A positive duty to promote contact does not require the court to order an unsafe, impracticable or emotionally harmful visit. For an order concerning a child aged 16, the circumstances must be exceptional. Mature and independently formed reservations about travel during an ongoing war may be given substantial weight, particularly where the proposed journey is lengthy, unpredictable and costly.

The father applied under Article 21 of the 1980 Hague Convention, domestically pursued through section 8 of the Children Act 1989, for orders requiring his two children to travel from England to Transcarpathia, Ukraine, for holiday contact during the continuing war.

The children, aged 16 and 11, lived with their mother in England. They maintained frequent video contact with their father, who remained in Kyiv. The mother supported their relationship but opposed travel to Ukraine because of security risks, the arduous and expensive journey, and the children’s reservations.

The central issues were whether direct contact in Ukraine was consistent with the children’s welfare, whether the circumstances were exceptional for the older child, and whether the proposed arrangements were sufficiently safe and practicable.

1. Application refused. The court declined to order holiday visits to Ukraine and made no further order, expecting indirect contact to continue for the time being.
2. Under section 1 of the Children Act 1989, the children’s welfare was the touchstone. The court had to consider all the circumstances, with particular weight given to their ascertainable wishes and feelings, emotional needs and the risk of harm. The relationship between father and children, and their mutual family-life rights under article 8 of the European Convention on Human Rights, strongly favoured meaningful contact, ordinarily including direct contact where feasible.
3. The court nevertheless had a positive duty to promote contact only so far as reasonably possible in the circumstances. That duty did not require an order which would expose the children to significant anxiety or emotional harm, or impose unreasonable practical and financial burdens.
4. The current FCDO advice was against all but essential travel to the western Ukrainian regions, including Transcarpathia. Although the court did not find a significant risk that the father would remove the children to Kyiv or retain them in Ukraine, the proposed journey would be lengthy, arduous and unpredictable. The cost, border-crossing difficulties, lack of a reliable chaperone and the absence of enforceable undertakings materially undermined the proposal.
5. The children’s reservations were genuine and independently formed. The court accepted that compelling them to travel during the continuing war would cause significant anxiety and emotional harm. Their views, particularly those of the mature 16-year-old, carried considerable weight.
6. For the older child, section 9(6) of the Children Act 1989 required exceptional circumstances before a section 8 order could be made. The unusual wartime context was exceptional in a general sense, but nothing about the child herself or her loving relationship with her father made an order necessary in the exceptional statutory sense.
7. The earlier arrangement, under which direct contact was to take place outside Ukraine during the hostilities, should remain in force for the time being.