N (A Child) (Ukraine: Art. 13 (b)), Re

In an application for summary return under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention, Article 13(b) requires a child-specific and geographically specific assessment of future risk. Generalised evidence of armed conflict is insufficient, but a low probability of exceptionally grave harm, such as death or serious injury from missile or drone attack, may amount to grave risk.

The court should assume disputed allegations at their highest where appropriate, then consider whether protective measures can sufficiently address the risk. If the proposed place of return is unsafe, the court may adjourn to obtain evidence about alternative arrangements. The child’s wishes and feelings are important, but cannot justify return where physical safety is imperilled.

The father sought the summary return of N, aged twelve, to Ukraine under the 1980 Hague Convention. N had been taken from Ukraine to England by his mother in December 2023, after previously living with his father in Ukraine.

The mother relied solely on Article 13(b), alleging grave physical and psychological risk arising from the war, separation from her, and the father’s alleged controlling behaviour. The father accepted that N was habitually resident in Ukraine and that the removal was wrongful. The central issue was whether return to N’s hometown, or to another part of Ukraine, would expose him to grave risk of harm or an intolerable situation.

1. Article 13(b) principles. The court applied the restricted exception in Article 13(b). The assessment concerns this child, in the particular circumstances, and the specific place to which return is proposed. The court must evaluate future risk, while respecting the Convention’s purpose of returning children so that welfare issues can be decided by the courts of habitual residence.
2. Separation and alleged coercive behaviour. N’s strong, consistent wishes to live with his father in Ukraine, his settled relationship with his father, and his wish to return to his school, friends and dog meant that separation from his mother was not shown to create an intolerable situation. The alleged controlling behaviour was considered at its highest. The judge concluded that any future risk to N could be managed through Ukrainian court orders and protective measures, including undertakings by the father.
3. Physical risk from the war. Return to N’s hometown involved a low risk of very serious harm, including death, from missile or drone attack. The seriousness of the possible harm meant that the risk was grave for Article 13(b) purposes. The risk had to be assessed by reference to the proposed location, not Ukraine generally.
4. Further evidence and disposition. The evidence did not address whether N could reside safely elsewhere in Ukraine. The application was therefore adjourned for the father to file evidence, limited to ten pages, identifying alternative arrangements. The mother could respond. If no alternative was proposed, the application would stand dismissed and the Article 13(b) defence would succeed. The judge indicated that it would be inconceivable to return N to the hometown despite his wishes and feelings.
5. The psychological-harm issue was left for determination after the proposed alternative arrangements and further evidence had been considered.

First-instance application under the 1980 Hague Convention. The judgment records no appeal or prior decision in the same proceedings.