Q v R, High Court of Justice, London
The child came to the UK because of the war in Ukraine
The child is 5 years old and he has the British and Ukranian nationality. His father lives in London and his mother lives in Ukraine. Because of the war with Russia, the mother and the child came to England in April 2022.
‘Safe to return to Ukraine’
In June 2022, the mother decided that it was safe for them to return to Ukraine. The father disagreed and started a procedure in the family court in the UK. The mother then started a Hague Convention Procedure in the UK, stating that the child was habitually resident in Ukraine and that the father was keeping him in the UK, without her consent (as a custodial parent) and that this was a case of international child abduction.
Change of habitual residence?
The father then stated that the child had become habitual resident in the UK, since he came in the UK in April 2022. The court however said that being in the UK for 8 weeks, did not change the child’s habitural residence.
The father also stated that there was a grave risk that the child’s return to Ukraine would expose him to physical or psychological harm or otherwise place him in an intolerable situation. The father mentioned a real risk of exposure to the risks of armed conflict and the risk of being in a legal limbo as a result of the alleged closing down of the legal system in Ukraine. The mother emphasized that she and the child would return to a town in the very far west of Ukraine. The court noted that in this area life is going on with a minimal or limited disruption. The mother was willing to provide an undertaking to leave Ukraine with the child, if the Russian invasion were to creep nearer. The court found that this reduced the risks to the child to below the Article 13b threshold.
The court ordered the return of the child to Ukraine. The exact date will be determined later.
Contact with the father
Eventhough it is clear that the Ukrainian court has jurisdiction to make further decisions about this child, the judge gives the parents his thoughts about contact between the child and the father in the period upto the child’s return to Ukraine:
‘I would have hoped that given what has happened and the frequency of contact that contact could extend further, so that the father is able to spend days, at least, with E.‘
‘Also, I would have thought that given he is, I believe, a carer I assume for either a disabled or elderly person that he ought to be capable of caring for his five-year-old son overnight without undue difficulty. The issue is not to do with his capability, it seems, but to do with ensuring that E is ready emotionally to take that next step to an overnight stay.‘
The mother’s solicitor, mr James Netto from International Family Law Group LLP 4,wrote a blog about this case on the website of his law firm.