Y (Child Abduction; Habitual Residence; Grave Risk; Ukraine), Re

A temporary agreement permitting a child to live abroad may give rise to a retention even where no fixed return date exists, provided the arrangement indicates that the move was temporary. A parent may withdraw consent to the arrangement, and a retention occurs when that withdrawal is clearly communicated and the child is not returned.

Habitual residence is determined objectively by a global and comparative assessment of the child’s integration and disengagement, without a burden of proof or default residence. Under Article 13(b), grave risk is assessed prospectively and concretely by reference to the particular child and destination. A statistically low risk of death or serious injury may nevertheless be grave, and protective measures must be realistically capable of addressing it.

The father applied under the 1980 Hague Convention and the Child Abduction and Custody Act 1985 for the summary return of his young daughter from England to Ukraine. The mother had brought the child to England with the father’s agreement because of the war in Ukraine. The parties disagreed about whether the arrangement was temporary, when any retention occurred, the child’s habitual residence at that date, and whether return to Chernihiv would expose her to grave risk under Article 13(b).

The court found that the father clearly withdrew consent in November 2024 and that the mother thereafter retained the child. The central questions were whether the child was habitually resident in England at that date and, alternatively, whether the Article 13(b) exception was established.

1. Retention. The parties’ agreement was temporary, although it had no fixed return date and no sufficiently precise agreed triggering event. It was therefore more akin to an open-return arrangement than a permanent move. The father was entitled to bring the imprecise temporary arrangement to an end after a relatively short period by clearly communicating withdrawal of consent. His message of 19 July 2024 was too ambiguous and emotionally charged to have that effect. His message of 23 November 2024 was a serious and clear request for the child’s return. The mother’s failure to make arrangements within a reasonable time constituted retention under Article 3.
2. Habitual residence. The court applied an objective, global and comparative assessment of the child’s old and new environments. There was no helpful burden-of-proof analysis or default position. Relevant factors included duration, stability, conditions and reasons for the stay, social and family connections, nursery attendance, the child’s age, parental intentions, disengagement from the former environment and integration into the new one. By November 2024 the child’s Ukrainian connections mainly reflected heritage and background, whereas her immediate lived experience, stable accommodation, welfare arrangements, nursery and community ties were in England. Her habitual residence had therefore changed to England. The retention was not wrongful because it did not breach rights of custody in Ukraine.
3. Article 13(b), alternatively. The court nevertheless found the exception established. The assessment was forward-looking, concrete and directed to the particular child, her primary carer and Chernihiv. The child’s age, the destination’s proximity to the Russian border, continuing attacks, the mother’s fear, the child’s dependence on her, and the contrast between her peaceful life in England and the conditions in Chernihiv were material. The risk of death or really serious injury could be grave even if statistically low. The risk of psychological harm from experiencing or witnessing attacks was also grave and intolerable.
4. Proposed soft-landing arrangements and possible internal relocation did not adequately address the risk. The parents had materially different perceptions of tolerable danger, and there was no reliable mechanism to resolve a future disagreement about deterioration in conditions. The court therefore refused summary return. It invited consideration of other means of preserving the father’s relationship with the child, including remedies under Article 21 and the ongoing Ukrainian proceedings.