Buscador de jurisprudencia

The parents were from the Cherkasy region of Ukraine. They had two children (twins) and had lived in Ukraine all of their life before the mother travelled to the United Kingdom. 

In March 2022 the father signed a written consent permitting the mother to bring the children to the United Kingdom until 31 December 2024, however, he later changed his mind.

About a year and a half later, in August 2023, the mother took the children from the family home without warning the father. She travelled to Poland and then Germany, where she remained for some six months. In early February 2024, the mother brought the children to England. Again, she did not tell the father.

In April 2024 the father made an application to the German authorities seeking the children’s return under the 1980 Hague Convention. It took until August 2024 for the Central Authority in Germany to inform him that the children had left the country. In October 2024, the father made a second application under the Convention to the Central Authority of England and Wales. As a result of investigative orders, the children’s whereabouts was discovered.

The mother said she wanted to leave Ukraine to escape the war and the father’s domestic abuse. The father denies this and accuses the mother of being an alcoholic who was abusive towards him. 

The twins were five years old at the time of the hearing.

Return refused. 

Settlement of the Child - Art. 12(2)

At the time of the hearing the children had been away from Ukraine for over 19 months and in the UK for just over one year.  On arrival in the UK the mother and children moved in with the mother’s sister and family and had lived there ever since. The children were enrolled in nursery and then school, they had an established routine and support from family. 

Their relationship with their father had been ruptured and proved challenging to re-establish through video contact. Their relationships with other family members in Ukraine was non-existent.

The judge concluded that one twin was settled in the UK but found that the other was not. The judge thought it artificial to reach opposite conclusions in relation to the children and that there was no question of separating them given their close bond. Considering the totality of the evidence, the judge was satisfied that both were settled within the meaning of Article 12. 

Grave Risk - Art. 13(1)(b)

The judge highlighted that different judges have reached different conclusions as to whether the risks posed by a return to Ukraine would be sufficiently grave to fall within Article 13(1)(b) and that each case was ultimately fact-specific.

In this case the judge found that the risks to the children of uprooting them from their present established environment to one overshadowed by war are not ones which they should be expected to tolerate. The amount of disruption to their lives and the climate of apprehension and fear to which they would be exposed are likely to have enduring consequences for them which could properly be characterised as grave within the meaning of article 13(1)(b), even leaving aside the statistical risk of becoming a casualty of war. 

Even the father’s alternative case that the children could relocate to a safer area of Ukraine was not enough to reduce this risk as returning the children to any part of Ukraine would result in them being suddenly immersed into a life so fundamentally different from their established lives in England that the judge considered it would be intolerable for them. 

The judge further stated that, if the accusations of domestic violence were the only matter to be considered in relation to Article 13(1)(b) then the risks arising from them could be sufficiently ameliorated through protective measures.