[2025] EWHC 795 (Fam)

I begin by recording once again the fact that the children have now been absent from Ukraine for 19 months. The first part of that period was, however, spent in Germany. Their ‘new environment’ is in England where they have been for just over a year.

Mr Evans makes the point that when the application was issued the children had been in England for less than twelve months; it is only because of the initial period in Germany that the exception is available at all. Whilst this is true, I think it is of limited relevance to the factual issue I have to decide.

I do consider it relevant that from the day of the children’s arrival in England they have been able to live in the same home with M’s sister and her family. This is a five-bedroom property of which M and children occupy two. I accept Mr Gration KC’s submission that the fact that M knew in advance her intended destination allowed for some pre-planning to take place. It has meant that the children were registered with a GP quickly (on 10.2.24) and were able to start at nursery school in May 2024, within about three months of their arrival. They have been registered with a dentist since June 2024. I also consider it to be of some significance that the children have been staying with members of their own extended family. M has been able to work, leaving the children to be cared for by their aunt with whom they are likely to have a stronger bond than, say, a childminder. The sister’s children are adults and I have little information about them in evidence. I assume though that, through living in the same household, they too will have formed relationships with their young cousins.

By contrast, I reject Mr Gration KC’s submission to the effect that, as a consequence of the children’s relationship with F having become severed while they were in Germany, the continued absence of the contact following the move here did not have a material impact on the ability to become settled. In my judgment, the opposite is more likely to be true: F’s prolonged absence from the children’s lives, at their young ages, may have been destabilising for them. I need to be cautious, however, about attaching too much weight to this; Ms Gwynne was careful in her evidence to point out that the extent to which F’s absence may have adversely affected the children is likely to depend upon the truth or otherwise of M’s allegations of domestic abuse, which I am not in a position to resolve. I also note that M did facilitate contact by video in September 2023. On her case, she stopped the contact as F was using the calls to undermine her and make negative comments about her to the children. Without oral evidence, I cannot assess whether she is telling the truth about this.

Whether or not M’s allegations are true, it does seem to me relevant to have regard to the fact that the children have been subjected to two moves: they were removed from Ukraine when they were aged not yet four and then subjected to a further move six months later. This period of prolonged disruption is likely to have destabilised them and made it more difficult to become settled.

Mr Evans rightly reminded me that this a case where the children’s whereabouts have been concealed from the father. Cannon is authority for the proposition that this remains a factor of relevance, even in circumstances less extreme than those considered by Thorpe LJ. Although there has been a degree of concealment here, it is right to bear in mind that this is not a case where the mother and children have been in hiding. M has not been living as a fugitive from justice; nor has her immigration position been precarious (M secured visas under the Ukraine Settlement Scheme). I must also take into account that, although she has not revealed to F where she is living, she has not taken active steps to keep the children concealed. The fact that M moved in with her sister will have made the children easier to trace.

M says in her first statement that since coming to England the children have ‘settled into life’. She points to the fact that a report from their nursery in June said that they had settled in well, although I attach limited weight to this as it seems to me that the word ‘settled’ being used by the nursery in that context cannot be equated to the type of settlement contemplated by Article 12. She says that the children have made friends and provides photographic evidence of them enjoying karate club and spending days out. As well as making friends, M also says that the children have an established routine with her extended family members (some of whom, of course, they live with). M says that she has ‘an incredible support network’, more extensive than that which she previously had in Ukraine. M also describes the children as being ‘much happier’ in England ‘without fear of war’, adding that the ‘sense of safety has positively impacted their emotional wellbeing, allowing them to thrive in their new environment’. Although this is difficult for me to assess, I have no reason to doubt that M will have felt fearful living in the shadow of a war, with regular alerts and evacuations to shelters. I think it is likely that, on some level at least, these young children will have experienced her fear. Although what she says about the children’s ‘sense of safety’ is forensically expedient, it also makes sense and is likely, in my view, to have a degree of truth to it.

I have received important evidence about the children’s lives in England from Ms Gwynne of Cafcass, both though her written report dated 11 February 2025 and her oral evidence. Overall, and subject to a caveat I identify in the next two paragraphs, I found her evidence to be nuanced, balanced and helpful.

Ms Gwynne’s involvement came about pursuant to a direction for Cafcass to report in relation to (a) whether the children are now settled in England, and (b) whether the children should be joined to the proceedings. With the benefit of hindsight, I consider it may have been better for point (a) to have been expressed more openly. The question of settlement is one of fact for the trial judge and it may create difficulties for a Cafcass officer if their remit is phrased in terms which invite them to express a conclusion on that issue. By way of comparison, Cafcass Officers are no longer asked to report in Hague proceedings on whether children ‘object’ to returning to a particular country; the standard direction is for them to report as to their ‘wishes and feelings’, as whether these amount to an objection is a matter for the court.

In this case, Ms Gwynne undertook an analysis in which she considered separately the children’s physical, emotional and psychological settlement, presumably based upon her understanding of what is required under the relevant authorities. In my judgment, her approach was somewhat over-compartmentalised. I gained the impression that from her perspective a child cannot be settled for Article 12 purposes without separately satisfying each of the three aspects of settlement. In relation to the children’s psychological settlement she said:

“Furthermore, I do have concerns around the psychological aspect of settlement due to the children’s separation from their father and the lack of a meaningful spending time arrangements with him. There is an argument that the children can never be settled in England without a secure and purposeful relationship with their father in Ukraine. The difficulty of reestablishing that relationship is that the father is unable to see the children in person and there is no known timeframe as to when that might change if they are to remain in England. In the absence of the children’s relationship with their father or a certain plan of how this could be achieved, it is difficult to conclude that they are fully psychologically settled.”

I accept Mr Gration KC’s submission that requiring a child to achieve the type of ‘full psychological settlement’ to which Ms Gwynne referred in order to satisfy the test in Article 12 sets the bar too high. While, therefore, I found the points Ms Gwynne made to be individually insightful, I am more cautious when it comes to the weight I give to her ultimate conclusions.

Ms Gwynne was able to make contact with the children’s school, which she describes as ‘an established and positive aspects of their lives’. After starting in the nursery year in May 2024, they moved to reception in the main school in September 2024 and have now completed nearly two terms there. They are well-presented in school and their record of attendance and punctuality is good. As Ms Gwynne points out, the transition within the same school will have brought ‘continuity and familiarity’ for them.

In line with the school’s policy for twins, the children have been placed in separate classes within their year group. It appears that since moving to reception they have had contrasting experiences. B is reported to be working at the expected attainment levels for his year and has ‘lots of friends and interacts well with other children’. By contrast, G is working below the expected level. When outdoors, she will only interact with her brother. She does not talk to or play with other children or adults. Despite ‘daily interventions’ (which Ms Gwynne explained are likely to entail spending one-to-one time with the teacher), she still does not speak English. The school’s perception is that she has become less confident since moving from nursery, where she was in a class with her brother.

Ms Gwynne has been able to visit the children at home and reported as follows:

“There is a warm home environment and they are supported by their maternal aunt and her family. There are toys in their room and their artwork adorns the walls. There have been days out during the weekends and school holidays.”

On the basis of observations such as these, Ms Gwynne expressed the following view:

“I was left with the impression that the children are generally happy and physically settled in England and, almost a year on from their arrival in this country, regard London as their home. Given their age and the fact that they previously spent six months living in fairly transitory circumstances in Germany, they appear to have very limited memories of their former lives in Ukraine.”

Notwithstanding her conclusion that the children are physically settled in England, Ms Gwynne describes her analysis in relation to their emotional settlement as being ‘more nuanced’. She says that their security and stability has ‘largely been achieved’ pointing out that both M and the children have settled into an established routine. M works part-time and receives state benefits. There are no safeguarding concerns. The children’s interactions with M are ‘warm’. B is clearly doing well at school and has made friends independently. G, as I have already noted, is finding things more difficult and ‘relies heavily on her twin in school’. This all leads Ms Gwynne to conclude that B ‘is further along the spectrum of emotional settlement’ than his sister.

Ms Gwynne also draws attention to the fact that the children’s family life is ‘culturally Ukrainian’. They do not currently attend clubs or activities outside school, although they were previously enrolled in a karate class which was cancelled because the time clashed with F’s video contact.

Ms Gwynne is most hesitant when she considers ‘the psychological aspect of settlement’. As I have already pointed out, the children’s separation from F and the lack of any meaningful contact arrangements led her to express the view in her report that it is difficult to conclude that the children ‘are fully psychologically settled’.

Ms Gwynne had the opportunity to watch videos of the contact which has been taking place remotely between the children and F since December 2024. Her ability to analyse the quality of the interactions was somewhat limited as the conversations took place in Ukrainian. Nevertheless she found the children’s tone of voice and body language to be illuminating. Their first video call took place on 7 December 2024, some 15 months after the previous time the children had had any form of contact with F. Ms Gwynne observed that the children became engaged as soon as F answered the call and they appeared to respond in an animated fashion to his questions. Ms Gwynne opines that this initial exuberance suggests that ‘[F] remains an important adult for [the children] and that they have core memories of spending time with him’. I agree with this and would add that these initial interactions also tend to suggest that over the period when there was a gap in contact M did not seek to influence the children against their father. F described to Ms Gwynne his initial calls with the children as ‘awesome’.

More recently, however, the quality of the calls has declined such that ‘the children are barely interacting with their father and move away from the screen entirely’. Ms Gwynne identifies that there is a spectrum of possible reasons for the ‘marked deterioration’ in the quality of the calls, ranging from the initial novelty of the calls having worn off to M having sought natively to influence the children. Although it is difficult to identify where along the spectrum the cause may lie, Ms Gwynne makes the following observation in this context:

“I note that the children were not able to share any detailed information with me about their father when I met with them and there was no ‘script’ from them about his perceived failings, as is sometimes the case within Hague proceedings when a Cafcass officer is concerned that the child has been influenced to speak negatively about a left-behind parent.”

Although within this summary process the evidence I have is limited, this observation, combined with Ms Gwynne’s description of the initial calls, leads me to conclude that, despite M’s failure to promote contact over an extended period of time, this is not a case where she has sought actively to alienate the children from F. I also bear in mind that, having initially abducted the children, M did at least allow some video contact to take place on three occasions in September 2023, before this was stopped for reasons which are disputed. She also permitted the paternal grandmother to visit the children in Germany in December 2023.

Ms Gwynne was asked in her evidence about the impact which a lack of contact with F may have had on the children’s ability to feel secure and stable. She responded that this was difficult to analyse without determining M’s allegations of domestic abuse. Her point was that if, as M contends, the children had been living in a home where they were exposed to the harmful effects of domestic abuse, removing them from that environment is likely to have had a positive impact on their feelings of security and stability. I consider that there is force in this. To my mind, it illustrates the difficulty of trying to come to reliable conclusions about a child’s psychological settlement within the confines of a summary process. The difficulty is all the greater when, as here, the court is dealing with young children whom it is difficult to interview and who will obviously not be as forthcoming in describing life from their perspective as a teenager would. As Ms Gwynne put it in her oral evidence, ‘talking to children that age is difficult, especially with an interpreter’. Her interview with G and B lasted for some 25 to 30 minutes, and within that short period there was a limit to ‘what [she] was able to do’.

In determining whether the children are settled for the purposes of Article 12, my task is to consider the matter holistically. Focussing first on B, the evidence that he is settled in England is considerable. He has had a stable home with members of his extended family for over a year. He and his twin sister share a nice bedroom in the home. He has a regular routine which involves spending meaningful time with his aunt. He appears to be happy and thriving at school. He has developed friendships and his English is improving. He may not currently attend clubs outside school, but he was previously enrolled in a karate club. He has an especially close bond with his twin sister which may mean that he has less need for a wide circle of friends and activities outside school than other children his age. The last 13 months of his life have been stable and peaceful, following a period where his day-to-day life will have been clouded by the war and a further unsettled period in Germany.

I have already referred to the main factors which point the other way. Of these, the most significant is the absence of contact with F but, in my judgment, this absence has not prevented B from becoming settled. On the contrary, having weighed this factor and others, such as the children’s concealment, against the matters set out in the preceding paragraph I have come to the conclusion that B is now settled in his new environment for the purposes of Article 12. It is likely that I would have come to a different conclusion if the evidence had suggested that M had been actively seeking to alienate the children from F. This is not the case.

So far as G is concerned, the evidence suggests that she has been finding life at school significantly more difficult than her brother. She is not thriving socially, as he appears to be, and academically she is struggling. I need to be cautious about attaching too much weight to her difficulties at school, bearing in mind that there could be a number of reasons for this. She settled in well in her nursery class and some of her more recent issues may have been caused by being separated from her twin, to whom she is obviously close. Nevertheless, if I were considering her position in isolation, the evidence overall would have led me to the conclusion that she was not now settled. In circumstances where I have concluded that B is settled, however, it seems to me artificial to reach the opposite conclusion in relation to his twin sister. When I stand back and examine the position of both children in the round by considering the totality of the evidence, I am satisfied that they are both settled for Article 12 purposes. In any event, there can be no question of separating the twins. To do so would plainly be intolerable given the close bond they evidently have.

The fact that the children are settled for Article 12 purposes means that I have a discretion as to whether they should be returned to Ukraine. I address this separately below.

Mr Gration KC and Mr Bartlet-Jones begin their skeleton argument by citing the well-known proposition from Re E that, for Article 13(b) purposes ‘a relatively low risk of death or really serious injury might properly be qualified as "grave"’. I remind myself, however, that Baroness Hale said only that such a risk ‘might’ meet the threshold, not that it would necessarily do so. Otherwise, it could be suggested that activities such as skiing or even driving a car fall within the ambit of the article.

Mr Gration KC and Mr Bartlet-Jones highlight the risks which the children would face in Cherkasy and submit that:

“the mother’s evidence (both specific and general) in relation to the situation in Cherkasy demonstrates a significant risk to the children (and the family as a whole) as a consequence of the conflict. The summary within her recent statement … demonstrates that Cherkasy remains subject to regular and frequent attacks which have caused injury and damaged buildings, including one on the building next to that in which the father lives... There is no protection that this court can put in place against indiscriminate acts of violence against the whole community, and the consequences for the children of facing such an attack could be extremely serious including through serious and perhaps lifechanging injury or death.”

I should record that in oral submissions, Mr Evans told me on instructions that F maintains that the building which sustained damages was in fact some 3 km away from his home (not next door). F did not put this in evidence when he responded to M’s most recent statement, but the precise location of the building does not much matter; the point is that nowhere in the city is entirely safe from attack.

Mr Gration KC and Mr Bartlet-Jones also drew to my attention recent news reports that between 11 and 18 February 2025 there were four missile and drone attacks in the Cherkasy region. One alert is said to have lasted for almost six hours. There have reportedly been casualties of the attacks as well as damage to buildings.

My attention was drawn to the advice issued by the Foreign, Commonwealth and Development Office (‘FCDO’) in relation to travel to Ukraine. Cherkasy sits well inside the red zone where the FCDO advises against all travel. This contrasts with the yellow zone in the West of Ukraine where the advice is to avoid all but essential travel.

By contrast, F paints a very different picture of life in Cherkasy from that described by M. Despite the fact that it was produced late and without permission, I allowed him to adduce evidence from a lawyer, Mr Nykitenko, who sets out that: the courts system continues to function well in Cherkasy; schools continue to operate; shops remain open without shortages; cultural venues are open; energy supplies are stable; during air raids, schools (and other establishments) stop operating and people are provided access to bomb shelters; public transport is functioning; roads are being repaired; hospitals and clinics are operational. I have no reason to doubt what Mr Nykitenko says, but I must treat his letter with a significant amount of caution as it is not a neutral document and its late production put M in a position where she was unable to respond. Moreover, the letter is described as a ‘legal analysis’ and focuses primarily upon the legal and regulatory structures in place as opposed to describing in detail what is happening on the ground. Some such information is provided but it is unclear whether this is based upon Mr Nykitenko’s personal knowledge or whether he is simply quoting other sources or making assumptions on the basis of the laws, orders, decrees and directives to which he refers. Mr Nykitenko makes the point that 92% of missiles and drones are successfully intercepted by the defence systems in place. The corollary of that, however, is that a small but significant number still get through; some of those which are intercepted may also pose risks from falling shrapnel.

As I have already made clear, the probability of being a casualty of war is impossible accurately to estimate. In the absence of reliable information, the best and most neutral evidence I have in relation to the risks posed in Cherkasy is the FCDO guidance. I take on board the note of caution sounded by Hayden J in M v F against placing too much reliance upon FCDO advice, in circumstances where it is not aimed at Ukrainian nationals. In my view, however, the warning it provides against all travel to that part of the country is something to which I should nevertheless give weight, even though it is not determinative of the issue of risk. Different judges have reached different conclusions as to whether the risks posed by a return to Kyiv and its environs would be sufficiently grave to fall within Article 13(b) (DHCJ Dias KC and DHCJ McKendrick both found that a proposed return to that part of the country satisfied the article whereas Hayden J reached the opposite conclusion).

Each case ultimately is fact-specific. The situation of the children with whom I am concerned is very different from that of the child dealt with by Hayden J in M v F. B and G were not yet 4 when they were removed from Ukraine and after 19 months they no longer have any memory of their former lives there. In M v F it was the children’s primary carer mother who wanted to return to Ukraine with the child and, thus, the child would be fully supported in her return. This will have made the transition back from England immeasurably easier than in a situation such as the present one where the children would be returning under compulsion with a mother likely to be fearful about the prospect. At the age of 5, the children will have limited comprehension about what war entails. They would, however, be exposed to their mother’s anxieties and fears and immersed in the overall state of high alert experienced by the population at large. Their environment in Ukraine would be in stark contrast to the peaceful and stable existence they have experienced in England over the past 19 months.

In my judgment, the risks to these children of uprooting then from their present established environment to one overshadowed by war are not ones which, to paraphrase Baroness Hale, they should be expected to tolerate. The amount of disruption to their lives and the climate of apprehension and fear to which they would be exposed are likely to have enduring consequences for them which, in my view, can properly be characterised as grave, even leaving aside the statistical risk of becoming a casualty of war. Although I acknowledge that Ms Gwynne was not directed to report in relation to Article 13(b), I nevertheless consider that there is force in the point she makes at paragraph 45 of her report when she says:

“The children left Ukraine as three-year-old toddlers and at that stage would have had scant comprehension of what war entailed. If they are to return at their current age and stage of development, it is likely that each child will have a greater capacity to be emotionally impacted by the situation around them as they adapt back to daily life in their hometown and attend kindergarten alongside other children and teaching staff who will be likely to share their own fears and experiences with them. In the event that their mother was to return with them and is fearful of the war and the daily impositions that it brings to life in Ukraine, it is likely that the children would also soon experience her anxiety. We know that [M] has spent the last 18 months actively trying not to live in the country. It is likely that much of how children of this age experience the war is at least in part derived from either the reticence or robustness of the key adults around them.”

In M v F the family was fortunate to have very considerable resources and the mother was exceptionally well-placed to protect the children from the risks of war. By contrast, this mother’s resources are far more limited. It is also highly unlikely that F would be willing to confer on M the type of authority she previously had to depart from Ukraine in the event of an escalation. I do not suggest that F would wish his children to be exposed to danger, but, as their respective stances in these proceedings illustrate, each of the parties is likely to have a very different perception as to the acceptable level of risk for the children. In the absence of parental co-operation, M’s only recourse if she perceived the need urgently to leave the country would be to make an application to court. I can foresee obvious difficulties in obtaining a resolution within a timescale compatible with a sudden escalation in the fighting. M is likely to feel trapped in that situation adding to the anxieties to which the children will be exposed.

I bear in mind also the serious allegations of domestic abuse which are presently unresolved. If these allegations were the only matter which I had to consider in relation to Article 13(b), the risks arising from them could be sufficiently ameliorated through protective measures of the type proposed by F (although in the absence of information as how undertakings are viewed in Ukraine, I would have framed at least some of the protective measures as orders and required them to be registered before any return order could take effect). Even with protective measures in place, the children would upon their return to Ukraine be caught in the middle of an acrimonious parental conflict. Although this factor is insufficient by itself to satisfy the requirements of Article 13(b), as part of the overall picture it reinforces my conclusion that returning the children would be intolerable for them.

In undertaking my Article 13(b) analysis I have been careful to resist the tug of welfare for the reasons articulated by Professor Perez Vera. I am entirely satisfied that the risks to which these children would be exposed are grave.

F’s alternative case is that I should adjourn the proceedings to enable consideration to be given to facilitating a return to a town or city with the FCDO yellow zone in the West of the country. I am not attracted to this option. Although the yellow zone would be statistically safer than Cherkasy, it would remain intolerable in my view for the children’s established lives to be uprooted in the manner proposed. Although safer, towns in the yellow zone do also experience attacks. Returning the children to any part of Ukraine would result in them being suddenly immersed into a life so fundamentally different from their established lives in England that I consider it would be intolerable for them. Whereas M would have the support of her family in Cherkasy, this would be lacking in any other part of Ukraine. Moreover, F’s proposal is at present inchoate. Allowing an adjournment for him to be able to articulate a different case would create additional delay before the proceedings could be resolved. This would not be in the children’s interests. Given my conclusions on the issue of settlement, such a delay would not serve any purpose.

As Mr Evans rightly accepts, given the conclusion I have reached in relation to Article 13(b), it is inevitable that I will exercise my discretion so as to refuse an order for the children’s return.

On the basis of my conclusions as to settlement alone I would have exercised my discretion against ordering a return. After this length of time, Convention considerations carry far less weight than in other cases. In this case, the children’s welfare strongly militates against their lives being uprooted again on a summary basis. They are very young and would find returning to a country of which they have almost no memory very hard to process. Their sudden exposure to a climate of apprehension and fear is likely to be harmful to them. It is also relevant that, although M acted wrongfully, bringing the children for a prolonged period to England to protect them from the war was a course of action to which both parties had previously agreed.

The issue which causes me greatest concern about my refusal to return the children is the need to restore their relationship with their father. As to this, I consider that there will probably need to be an urgent fact-finding hearing so that future decisions as to their welfare can be made from a solid evidential foundation. The fact that I have determined that the children should not be returned to Ukraine within this summary process does not of course preclude the court from reaching a different conclusion following a full welfare evaluation. Nor will it prevent the court in future from requiring the mother to travel to Ukraine with the children – either to Cherkasy or perhaps somewhere nearer the Polish border - in order to facilitate contact. These are not decisions I can make at present but they will remain open for consideration as part of any welfare investigation.