R v O (Art 13(b) Ukraine)

In a summary application under the 1980 Hague Convention, the respondent bears the burden of establishing the Article 13(b) exception on the ordinary balance of probabilities, subject to the limits of summary proceedings. The court must assess allegations cumulatively, consider them at their highest where their possibility cannot confidently be discounted, and then examine whether protective measures can meet the identified risk. War in Ukraine is not automatically decisive, but widespread aerial attacks may make narrow front-line comparisons unreliable. Grave risk depends on both likelihood and magnitude; a low likelihood of fatal or life-changing harm may suffice. Protective measures require concrete evidence of effectiveness. Where the risk cannot be managed, return should ordinarily be refused.

The father sought the summary return of his six-year-old son to Ukraine after the mother removed him to England. The mother accepted that the removal was wrongful but relied solely on Article 13(b), alleging domestic abuse, the continuing war in Ukraine and the effect of return on her mental health. Ukrainian family proceedings were ongoing and the father offered protective measures, including relocation within Ukraine and financial support. A jointly instructed psychiatrist assessed the mother's depression and the likely effect of a return order. The central issues were whether the cumulative circumstances created a grave risk of harm or an intolerable situation, and whether that risk could be sufficiently managed by protective measures.

The father's application for a return order was dismissed. The court held that the mother established the Article 13(b) exception because the war-related risk could not be sufficiently managed.

1. Framework. The court applied the approach in Re E (Children)(Abduction: Custody Appeal) [2012] 1 AC 144. The inquiry required the court first to ask whether the possibility of an Article 13(b) risk could confidently be discounted, then to assess the allegations at their highest, and finally to consider whether protective measures could meet the risk. Different strands had to be assessed cumulatively, in accordance with Re B (Abduction: Consent: Oral Evidence) [2022] EWCA Civ 1171, while the court remained cautious about making factual findings in summary proceedings.
2. Domestic abuse. The allegations could not confidently be discounted. Taken at their highest, they established a grave risk of physical or psychological harm to the child. There was no blanket rule that domestic abuse either could or could not satisfy Article 13(b), as explained in H v O (Art 13(b) and Domestic Abuse) [2025] EWHC 114 (Fam). However, the risk from domestic abuse could be addressed through Ukrainian protective mechanisms, including restraining orders and emergency protection orders.
3. War in Ukraine. The existence of war was not, by itself, sufficient. The court had to examine the proposed return location and the child's circumstances. It was entitled to take judicial notice of the changed nature of the conflict, including frequent missile and drone attacks away from the front lines. A low likelihood of fatal or life-changing harm remained a grave risk. The evidence of attacks near Poltava and X Village, together with the current travel advice, established that risk.
4. Protective measures and mental health. The proposed relocation, evacuation and possible return to England did not provide sufficiently concrete or reliable protection against aerial attacks. The mother's stated refusal to return was assessed on a summary basis under Re R (Child Abduction: Parent’s Refusal to Accompany) [2024] EWCA Civ 1296; the court considered it likely that she would return with the child. Her mental-health case therefore did not independently establish an intolerable situation.
5. Although the court retained a discretion to order return despite Article 13(b) being established, it was inappropriate to exercise that discretion where the grave war-related risk could not be sufficiently managed. The application was dismissed and the parties were directed to draft an order.