[2025] EWHC 795 (Fam)

F would like the children to come back to Cherkasy, a city in central Ukraine on the Dnipro River some 200 km to the south of Kyiv. This is the city in which F, now aged 37, was born and where he has lived for all of his life and now works in engineering. M, now aged 36, was also born and raised in the Cherkasy region. Until 2023, she had lived there for all of her life. All four grandparents live in the city. The parties were married there. G and B were born there and lived there until August 2023. The court in Cherkasy has already been involved in the lives of these parties; in December 2023 it dissolved their marriage on M’s application.

Cherkasy is a city of historical importance, the origins of which can be traced back to the thirteenth century. In the twenty-first century it has developed into a thriving economic and cultural hub with a population in excess of 250,000. A cursory glance at the internet is sufficient to reveal that it is graced by beautiful buildings, parks, theatres and other cultural and recreational amenities that are a feature of modern life.

Since February 2022, however, Cherkasy – in common with the rest of the country – has existed under the shadow of war. That month, the existing war developed in intensity after Russia launched an invasion which it characterised as a ‘special military operation’.

As has been widely reported, the war has caused devastation and suffering in Ukraine on a scale not witnessed on European soil since 1945. As Hayden J related in M v F [2024] EWHC 1689 (Fam), ‘the first casualty of war is the truth’. Reliable statistics are difficult, if not impossible, to find. Estimates as to the number of fatalities caused by the war differ substantially. They are tainted by each side’s motive to release information minimising their own casualties and maximising those of the enemy. The overall number is likely to run to hundreds of thousands and may exceed a million. The vast majorities of these have been members of the military but there has also been a significant number of civilian casualties. The United Nations Human Rights Commission measures the total number of civilian deaths and injuries in the tens of thousands, but an accurate number does not exist. Similarly, there is no accurate way of measuring the extent to which the human rights of the population have been violated. Individual cases of rape, abduction and other atrocities have been widely reported in the media.

Not all regions of Ukraine have been equally affected by the war. The devastation has been greatest in the East, where cities and towns have found themselves on the frontline of the fighting and, in some cases, reduced to rubble. The impact of the war has been much less in other areas, especially in the West of Ukraine. There are conurbations where the civilian infrastructure remains largely intact and where urban life continues to function well. It is going too far, however, to say that it functions ‘as normal’. Even parts of the country hundreds of miles from the primary theatre of war experience periodic attacks from missiles and drones. Citizens have become accustomed to living under martial law in a state of high alert and to take shelter in bunkers in response to warnings of an imminent attack transmitted by siren or text message. Power outages are commonplace. Curfews are in place.

War is, by its nature, unpredictable. In the days since I heard oral submissions, I have read news reports about ongoing negotiations for a ceasefire. I do not know whether this will materialise or, if so, whether any negotiated truce will last.

After the February 2022 invasion, women and children were permitted to leave Ukraine to take refuge in other states. Men between the ages of 18 and 60 were not. They were required to remain to assist in the war effort with the potential for conscription to the military. This remains the position.

Across Ukraine, thousands of families made the difficult decision to separate. Fathers were left behind to fight for the country while their wives or partners and children left to find a safe haven in other countries. Nobody knew how quickly the war would progress, some believing that Kyiv might be captured within days or weeks.

Amidst that climate of great fear and uncertainty, on 12 March 2022, F signed a written consent permitting M to bring the children to the United Kingdom until 31 December 2024. I infer that when the document was signed no concrete plan had been formed for their departure; rather, the document was in place to enable M to take urgent action to flee the country in an emergency.

In the event, M and children did not immediately leave Ukraine, instead remaining in the family home. The invasion advanced more slowly than had initially been feared. Accordingly, F changed his mind as to the need for M and children to evacuate the country.

About a year and a half later, on 1 August 2023, without prior warning M left the family home with the children. She did so clandestinely taking limited belongings with her (the children left with only a small backpack). The following day, 2 August 2023, without informing F she removed the children to Poland. From there she took them to Germany, where she remained for some six months. In early February 2024, M brought the children to England. Again, she did not tell F.

The move to England was made easier by the fact that M’s sister was already living here. Upon arrival, M and children moved into the property in East London occupied by her sister, her sister’s husband and their two children. They have lived there since.

In May 2024, the children were enrolled in the nursery section of a local primary school, moving to the reception year in September. They have now been in reception for almost two terms.

In the meantime, F was kept largely in the dark about the children’s movements. He was able to speak to them over three video calls in September 2023, but thereafter he was denied even that limited form of communication. He made persistent enquiries through the authorities in Ukraine and came to learn that the children were in Germany in October 2023, after he was served with an application for maintenance which M had made to the court in Ukraine. In December 2023, the children’s paternal grandmother was able briefly to visit in them in their German home. F could not, as he was not allowed to leave Ukraine.

Unaware that the children had been taken from Germany to England, in April 2024 F made an application to the German authorities seeking the children’s return under the Hague Convention. It took until August 2024 for the Central Authority in Germany to inform him that the children had left the country.

In October 2024, F made a second application under the Hague Convention. This time it was transmitted to the Central Authority in England. Proceedings were issued on 22 November 2024. As a result of investigative orders, the children’s whereabouts was discovered and F finally came to learn that they had been brought to this country.

An interim order was made for the children to have twice weekly video contact with F. The sessions have been recorded and viewed by Ms Gwynne, the experienced Cafcass Officer from the High Court team who has prepared a report for the court. The conversations took place in Ukrainian which Ms Gwynne does not speak, but she was able to observe that whereas the children showed an interest in speaking to F in the initial sessions, the quality of the contact has more recently declined. Video contact is a poor substitute for face-to-face meetings, especially when it is being used to rebuild a relationship which has been ruptured; young children often find it hard to concentrate or maintain an interest in this form of communication.

So why did M act as she did?

Within the confines of this summary process, in which neither party has given oral evidence to the court, this is not a question I can answer reliably. In her written evidence, M has said that her primary motivation for leaving was to flee the war. When she discussed matters with Ms Gwynne she put a different slant on it, emphasising the need to escape a marriage which had become characterised by F’s domestic abuse. Her allegations include regular incidents of physical abuse the most recent of which occurred on 25 July 2023. She asserts that some of F’s behaviour was witnessed by the children who were frightened of him. She says that F’s assaults left her with bruising to different parts of her body and seeks to corroborate this with photographs.

For his part, F denies M’s allegations of abuse. In his written statements he portrays her as an alcoholic who was abusive towards him, allegations which M denies. I am not able to resolve the parties cross-allegations without hearing them tested in cross-examination. I do observe, however, that F’s willingness in March 2022 to allow M to care for the children without him for the best part of two years does suggest that at that time he had at least a degree of confidence in her abilities as a parent.

M explains that her second move to England resulted from her inability to settle in Germany. That may be so, but without hearing her explanation tested in evidence I am not able to take it as read. I note that the move happened within two months of a visit from paternal grandmother which ended acrimoniously. M, who by then had brought proceedings in Ukraine to obtain a divorce, is likely to have appreciated that it was only a matter of time before F had recourse to the legal process to try to recover his missing children. I note also that M flew to England, not from a German airport, but from Prague. This may be, as she says, because it was a more geographically convenient route; but other motives may also have been at play.

What is entirely apparent is that by the summer of 2023 the marriage had become deeply unhappy to a point where the parties could not live together harmoniously in the same household. At the end of July 2023 – just a few days before M’s departure - there was an incident which led to the police becoming involved. The parties each provide very different accounts of this and I am not able resolve what happened.

The conclusion of this chapter in the children’s lives is that they have now been away from Ukraine for over 19 months. Their relationship with their father has been ruptured and is proving challenging to re-establish through video contact. Their relationships with other family members in Ukraine are non-existent.

F’s case is that, at present, the only realistic prospect he has of properly restoring his relationship with the children is if they return to Ukraine. He cannot travel here for contact. The possibility of him recovering a meaningful bond with the twins over video appears doubtful. The children have little or no memory of their past life with him and, thus, no foundations upon which to build.

But returning the children cannot be achieved without imposing upon them significant further upheaval in circumstances where they have already experienced substantial disruption to their lives over the past year and a half. A return can only realistically be achieved by compelling their unwilling and fearful mother to fly with them to Poland and then embark upon a one-to-two-day journey by bus. They would leave behind the comfort and relative peace of their present home to return to a life overshadowed by periodic missile alerts and power cuts.

The acutely difficult problem thrown up by this factual scenario is one which I must resolve through the machinery of the 1980 Convention. M responds to F’s powerful plea for the return of the children by contending that I cannot do so without harming them. She points to the fact that F did not make his application for more than a year after the date of their removal from Ukraine and says that the children are now settled in England. She contends, moreover, that a return would expose them to risks of such gravity that such a course should not be countenanced.