UNITED KINGDOM - ENGLAND AND WALES
High Court of Justice of England and Wales (Family Division)
Mr Justice Williams
UNITED KINGDOM - ENGLAND AND WALES
21 September 2022
Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b) | Undertakings | Issues Relating to Return |
Return ordered with undertakings offered
Re B  UKSC 4
Re C (Children) (Abduction Article 13(b))  EWCA Civ 2834
Re M (Abduction: Zimbabwe)  UKHL 55
One child allegedly wrongfully retained at age 5 and a half – National of Ukraine and the United Kingdom – Father national of the United Kingdom and South Africa – Mother national of Hungary and Ukraine – Child lived in Ukraine in the mother’s custody with regular contact with the father – Following Russian invasion of Ukraine in late February 2022 child and Mother move to England In April 2022 – Mother plans to return to Ukraine in Summer 2022 – Father obtains Prohibited Steps Order from English Court - Application for return issued on 29 July 2022 – Main issues: habitual residence and Art. 13(1)(b) grave risk exception to return – risk of exposure to war – risk of loss of relationship with father due to alleged closure of court system and mothers hostility to father – A child’s retained roots in Ukraine support his habitual residence remains in the Ukraine – The risk faced by the child upon return to Ukraine failed to meet the threshold of ‘grave harm’ – the region was not subject to active hostility and life continued as normal – the court system was functioning – mother promoted contact – undertakings reduced any risk below grave risk threshold. – Return ordered
E is a British and Ukrainian national. He is five and a half years old His mother is Ukrainian and Hungarian, and his father is British and South African. In April 2022, E came to England from Ukraine, arriving with his mother on a visa granted under the family visa scheme, one of two schemes put in place when Russia invaded Ukraine. They were eligible for this scheme because the father had lived and worked in the UK for a considerable time.
The mother and E went to live with a host family in southern England. E started in reception at a local school and the mother secured employment at another local school as an English teacher. The father continued to live in the Midlands but travelled down to Watford for work, and E saw his father periodically.
In mid-June the question arose of E returning to Ukraine, initially it seems for the summer. The father commenced proceedings on 24 June 2022 a prohibited steps order was made prohibiting the mother from removing E from the jurisdiction. Further orders were made by Her Honour Judge O’Neill and His Honour Judge Moradifar staying those proceedings when the mother indicated her intention to issue and application under the 1980 Hague Child Abduction Convention, which was issued on 29 July 2022.
This application came before Sir Jonathan Cohen KC sitting as a High Court Judge on 5 August 2022, who timetabled the matter for a one-day final hearing on 21 September 2022. By the September hearing, the mother described E as being unsettled and particularly missing his grandmother in Ukraine, despite an assessment in June which indicated he was settling into his new life.
Article 3 – E remained habitually resident in Ukraine on 24 June 2022 when he was retained in England by the making of the Prohibited Steps Order.
Article 13(b) – There was no grave risk that E’s return to Ukraine would expose him to Physical or psychological harm or otherwise place the child in an intolerable situation.
Order for the return of E to the Ukraine by a date to be determined, subject to undertakings for the care arrangements and contact by the mother.
The evidence the mother put before the court, supported by the host family and the evidence from the grandmother, demonstrated E was significantly unsettled by the dislocation from life in Ukraine to life in England. He had not settled well in school and missed his grandmother, who was an important part of his life in Ukraine. Ukrainian was his language, culture and familiar environment, his grandmother lived there, and his mother was more rooted there. The presence of the father, the mother obtaining work and E entering school showed some roots existed in England. Although some roots had been put down in England they were shallow, in particular the accommodation was temporary and would not be available after October 2022. The parents intentions appeared to have been that E would come to England for an indeterminate period following the outbreak of war and not that E should relocate to live in England on a permanent basis. E retained strong roots in the Ukraine and had only shallow roots in the UK and thus there had not been a change of his habitual residence.
The risk E would face by return to Ukraine were below the threshold of grave risk as there would be minimal risk exposure to active hostilities on the ground in that part of the Ukraine, there was a functioning family court system notwithstanding the implementation of Martial Law, the mother had always promoted E’s relationship with his Father and if the zone of hostilities extended the mother could be relied on to remove E to another country, including Hungary which was only a few miles away and which she had the right to enter. The evidence presented by the mother showed that Town B had not been subject to any attack, the nearest missile strikes being many miles away and life was largely back to normal in Town B: schools, work and business were carrying on as usual. It was difficult to foresee how Town B would become subject to active conflict. Were the conflict to extend towards Town B and the risk to escalate, the court was satisfied that the undertakings the mother has given to remove E reduces the risk below the Article 13(b) threshold and that the undertakings given by the mother would be adhered to. The father had therefore not established the Article 13(b) exception and the discretion did not come into play.
Mr Justice Williams
Anna Bregstein, Judicial Assistant