Facts: Following the Russian invasion of Ukraine, a seven year old child was taken by her mother during an access visit from her home, where she lived with her father, step-mother and half-siblings, and brought to Ireland. The child’s parents had separated after she was born and she lived with her father, with her mother having regular access. The child’s father is the applicant in the case and did not consent to the child’s removal.
Reasoning: In the High Court, Justice Gearty recalled the provisions of the Hague Convention on the Civil Aspects of Child Abduction, which was created to provide fast redress when children are moved across state borders without the consent of both parents/guardians and to mitigate the damage sustained to a child’s relationship with the ‘left-behind parent’ by returning the child home as quickly as possible.
In considering whether the removal of the child by her mother was wrongful under Article 3 of the Hague Convention, Gearty J reviewed similar case law from other jurisdictions, and found that no court had considered the initial removal of the child lawful due to the effect of a Resolution from the Ukrainian Government, which the mother had claimed allowed her to remove the child. The Resolution was found to not have affected the application of family law in Ukraine and the Supreme Court of Ukraine has held that the best interests of the child are paramount. Gearty J found that the removal of the child by her mother was therefore unlawful and in breach of the father’s custody rights.
The mother raised the defence of the child facing a grave risk of exposure to physical or psychological harm or otherwise placed in an intolerable situation if she were to return to Ukraine. Reviewing psychological assessment reports on the child, as well as evidence on the gravity of the situation in the specific city in which the child’s father and family live in Ukraine, Gearty J held that the threshold of grave risk had not been met. While accepting there was generalised real risk that affected all children in Ukraine, there was no grave risk of harm. Instead, the risk of the child’s distress in Ireland becoming a serious psychological problem if she were to stay was considered a more serious risk of harm, particularly as the child has shown little sign of integration in Ireland. Gearty J also distinguished the assessment of serious risk of harm considered in return cases under the International Protection Act 2015 from the grave risk of harm under the Hague Convention, considering the threshold in the latter to be different and more specific to the individual case.
Decision: The High Court held that it was held that it was in the child’s best interests to be returned to Ukraine to live with her father and family.
