The High Court has ordered the return to Ukraine of a child identified in the judgment as Daryna, finding that her mother wrongfully removed her to Ireland and that the evidence did not establish a grave risk of harm if she returned to her home city.
The judgment, delivered by Ms Justice Mary Rose Gearty on 25 July 2023, concerned an application under the Hague Convention on the Civil Aspects of International Child Abduction. The parents, both Ukrainian nationals, had shared custody rights. A 2019 Ukrainian court order provided for the child to live primarily with her father and set out access arrangements for her mother.
The mother took Daryna to Ireland during an access visit within two months of Russia’s 2022 invasion of Ukraine. She relied on a Ukrainian resolution that allowed a parent to take a child across the border without the other parent’s notarised consent. The court held that the resolution concerned border-crossing requirements and did not extinguish custody rights or override the Hague Convention. It found the removal wrongful because the child was habitually resident in Ukraine and her father’s custody rights were being exercised.
The mother argued that returning Daryna would expose her to physical danger from missile attacks and psychological harm from the war. The court accepted that there was a real risk to civilians in Ukraine, including in the industrial city where the father lived, which had been struck. But it said the Convention required evidence of a grave risk to this particular child. It found insufficient evidence that Daryna faced that threshold of risk in her home city. The court also noted evidence that her medical care remained available and that her distress was principally linked to separation from her father, his wife and siblings.
The court rejected the mother’s arguments based on Article 20 of the Convention and legitimate expectations arising from temporary protection offered to Ukrainians in Ireland. It concluded that temporary protection did not suspend obligations under the Convention.
The court said Daryna’s best interests would be served by ending her separation from the family she had lived with for most of her life. It ordered her return forthwith. The father had offered to travel to Ireland to accompany her home and said he had plans to move his family to safety if necessary. The court did not set out final safety undertakings in this judgment: it said it would hear the parties about any further undertakings, including plans in the event of a missile warning and the possibility of moving to a more secure location.