The High Court has ordered the return of a Ukrainian boy to his war-torn home country, from which he and his mother had fled following Russia’s invasion.
The court decided the preteen boy should be sent back to the country of his “habitual residence” and ordered his father – who is estranged from the boy’s mother – must give an undertaking that he can secure his safety.
The judgment outlined that the child’s father lives in Ukraine and claimed he consented to the child’s mother taking their son to Poland for two months only after Russia invaded Ukraine in February 2022.
However, the boy’s mother claimed the move was for the “indefinite” duration of the war.
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In her judgment on Wednesday, Ms Justice Mary Rose Gearty said documents before the court show the agreement was “probably only for two months”. They show the mother then removed the boy from Poland and did not tell the father she took him to Ireland without his consent.
The judge said there is “no evidence of any risk” to the boy that would be sufficient to allow the “grave risk” defence to supersede the “urgent and important imperatives” of The Hague Convention, namely the prevention of child abduction and the vindication of the child’s right to a relationship with both parents.
The judge said the issue of risk is linked to the views of the child, who considers himself to be at risk if returned, but the High Court said there was “insufficient evidence to substantiate his concerns”.
The judge said there had also been “insufficient evidence” of a defence of “settlement” in the case, meaning the establishment of the boy’s attachment to a new country.
The Hague Convention exists to ensure that a child found to be abducted is returned to their country of “habitual residence”, so family law issues, including custody, can be adjudicated by the courts in that country. It provides redress when children are moved across state borders without the consent of both parents and aims to mitigate the damage sustained to a child’s relationship with the “left-behind parent” by returning the child home, the judge said.
In March 2022, the mother and son left Ukraine for Poland with a group of mothers and children. In November 2022, she brought her son to Ireland, fearing an invasion of Poland.
“It is clear that the child was habitually resident in Ukraine in 2022 at the time of his removal,” said Ms Justice Gearty.
The judge said it was up to the mother to show that after the two months in Poland, there was consent for them to move to Ireland.
Text messages in the case supported the father’s claim that the trip was to be for two months only and that the mother and son were then to return, said the judge.
In September 2022, the mother had texted that she would not return “as long as there’s danger” to the boy.
Ms Justice Gearty said there was no evidence of an agreement that the boy could remain in Ireland until the end of the war.
She said the child was “wrongfully retained” in May of 2022 and his location had been “deliberately concealed” from the father thereafter.
The evidence the boy offered to support his conclusion that Ukraine is unsafe is that people that his mother knew have been killed in the war, said the judge.
“I take these objections seriously and have considered his view very carefully. His only objection to return is based on his personal safety. Anyone would sympathise with this view, but it does not appear, on the evidence before me, to be one that has been formed on a sound factual basis,” the judge added.
“While many women and children have sought safety in neighbouring countries, most Ukrainian children remain, safely, at home in Ukraine.
“It is insufficient to suggest that there is a grave risk of remaining in Ukraine at present without details as to why, details describing what conditions prevail in the place to which the child would otherwise return and details of the current situation in that region or city. There is no such information in this case,” she said.
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