The Hague Convention: A Child Abduction Case

This recent case considered whether five-year old twins should return to live with their father in Ukraine or stay with their mother who had removed them without the father’s consent, firstly to Poland and then to England. This was not a simple welfare case as the Court had to consider the impact of the ongoing war in Ukraine.

Background

• In August 2023, the mother removed her twin children from Ukraine to Poland, without the father’s consent or knowledge. She then took them to Germany where she remained for six months, before bringing them to England in February 2024.

• The children had now lived in England for over a year and were in a stable home with their mother, Aunt, Uncle and cousins. The twins were also enrolled in Reception at a local primary school.

• The father had very limited video calls with the children in September 2023 but was then denied any contact until the children were located in England and an interim contact order for video contact was made in November 2024. The father had not been permitted by Ukrainian law to leave the country as a man aged between 18-60, due to conscription.

• The father’s position was that he wanted the children returned to Cherkasy, Ukraine. However, the area was still affected by the ongoing war. The mother suggested that the return would expose the children to risks of such gravity that such a course should not be countenanced.

The Law

The father made an application to the Hague Convention. To engage the Convention, Article 3 states that the father had to prove that the children were subject to a wrongful removal. This was proved in this case when the mother removed the children from Ukraine, without consent from the father, in 2023.

Article 12 gives the State the power to return the children to their habitual residence. However, there are two situations where the children will not be returned:

1. The ‘Settlement Case’: If the children are settled in the new country (Article 12).

2. The ‘Harm Case’: Where there is a grave risk of harm if the children are returned (Exception in Article 13).

The Settlement Case

The twin children’s habitual residence would have been Ukraine as this is where they grew up, had family located and had resided immediately prior to the wrongful removal. In contrast, their settled residence (if achieved) would be England as this is where they plan for their new residence to be permanently.

The court argued there were several signs that indicated settlement status, including:

• The twin children have not been in Ukraine for 19 months;

• They were settled in England with education, family, and registered with a GP;

• They lived in a stable home;

• The mother had been able to work whilst leaving the twins with their aunt;

• The children had friends and a support network; and

• The twins had been getting positive feedback from their school.

However, the court also argued that the lack of contact with their father has impacted their ability to become ‘psychologically settled’. In particular, one twin was considerably less settled than the other. Nevertheless, the court looked at the case wholistically, considering the above factors, and concluded that the children were settled for the purposes of Article 12 and ordered that the children should remain.

The Harm Case

The court also applied the exception in Article 13 as there was a grave risk of harm to the children returning, due to the ongoing war in Ukraine. The court considered news reports showing the nearby missile attacks within the region of Cherkasy. The court decided that it would be ‘intolerable’ for the children’s settled lives in England to be uprooted and moved to a country subject to war. Therefore, as above, the court decided the children should remain.

What have we learnt from this case?

The court went further to say that even without considering the exception in Article 13, they would be satisfied that the children should remain in England based on the Settlement Case alone. Therefore, regardless of the impact of the war, a respondent may successfully defend an international abduction case, if:

• The children have not been in their habitual residence for a period of longer than 12 months;

• The children have adjusted to their new residence, bearing in mind education, family connections and being psychologically settled;

• The court determines that as a whole, the children are settled in their new residence; and

• It would not be in the children’s welfare to return them.

The court did allude however, that whilst the children did not have to return to Ukraine, it did not stop the court from ordering that the mother travel with the children to Ukraine, or to the Polish border, to facilitate contact with the father. These issues were to be considered as part of the ongoing welfare investigation.

If you have any queries regarding international children law issues or any aspects of family law, then please contact a member of our Family and Matrimonial team.