G and B (Children) (Abduction: Settlement: Grave Risk: Ukraine), Re

Settlement under Article 12 is assessed holistically at the date of hearing. Physical, emotional and psychological factors overlap and need not be separately satisfied. Concealment, deceit and severance of a relationship with the left-behind parent are relevant but not determinative. Once settlement is established after a delayed application, return remains discretionary. Under Article 13(b), grave risk is assessed by reference to the particular child and the concrete circumstances of return. War is not, by itself, sufficient; relevant factors include the destination, the child’s age, parental circumstances, the primary carer’s position and the child’s overall situation. A relatively low risk of death or really serious injury may be grave, but does not automatically satisfy the threshold. Psychological harm and an intolerable situation may arise from upheaval and exposure to a war environment.

The father applied under the 1980 Hague Convention for the return of his five-year-old twins to Ukraine. The children had been removed from Ukraine to Poland, Germany and then England, and the application was issued about 16 months after removal. The mother opposed return on the grounds that the children were settled in England and that return would expose them to a grave risk of physical or psychological harm or an intolerable situation under Article 13(b). Allegations of domestic abuse remained unresolved in the summary proceedings. The court had to determine the date and meaning of settlement, assess the risks of return to Ukraine during the war, and decide whether to exercise its discretion to order return.

Disposition. The application for return was refused. The children were settled in England for Article 12 purposes, and the Article 13(b) exception was established.

1. Settlement. Settlement is assessed at the date of the hearing, not the commencement of proceedings. The court followed the persuasive reasoning in E v L (Abduction: Settlement) [2022] 1 FLR 1285 and declined to follow the contrary approach in Re N (Minors) (Abduction) [1991] 1 FLR 413. This avoids returning a child who has become settled during litigation and permits the court to consider the child’s current circumstances.
2. The assessment is holistic and concerns the new environment, rather than merely the relationship with the abducting parent. Physical, emotional and psychological features overlap; they are not separate statutory limbs. The court must consider whether the child is established on a permanent or long-term rather than transient basis. Concealment, deceit and the severance of a parental relationship are relevant but not determinative. Applying that approach, both twins were settled. Although the girl would probably not have been found settled if considered alone, separating the twins would itself have been intolerable.
3. Grave risk. The court applied the child-focused and concrete assessment summarised in Re IG (A Child) (Child Abduction: habitual residence: Article 13 (b)) [2021] EWCA 1123. The allegations and evidence must be evaluated despite the summary nature of the process, and protective measures must be considered where appropriate. The guidance in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 confirmed that a relatively low risk of death or really serious injury might be grave, but it did not make every such risk sufficient.
4. The war was not treated as automatically establishing grave risk. The court considered Cherkasy’s location, recurring attacks, the children’s age, their lack of memory of Ukraine, the mother’s likely fear, their stable life in England and the absence of effective parental cooperation. The resulting psychological disruption and intolerable situation were grave even apart from the statistical risk of casualty. Protective measures could potentially address the domestic-abuse allegations alone, but could not neutralise the wider war-related risks.
5. Settlement alone would have led the court to exercise its discretion against return after the lengthy delay. The children’s welfare strongly militated against another summary uprooting. An urgent fact-finding hearing was likely to be required for future welfare decisions.