Judgment of the Supreme Court on overturning the decision of the Kharkiv Court of Appeal on the return of the child to the place of permanent residence in the United Kingdom of Great Britain and Northern Ireland (case № 953/6251/21)

This judgment concerns the return of a child to the country of habitual residence under the Hague Abduction Convention. A citizen of the United Kingdom, the claimant, filed a lawsuit in a Ukrainian court seeking the return of a minor child to the United Kingdom of Great Britain and Northern Ireland. The respondent in the judgment is the child’s mother, a Ukrainian citizen, who took the child to Ukraine without the father’s consent, justifying her actions as protecting the child’s best interests.

The child was born during the marriage of the parties and resided in the United Kingdom until July 2020. The mother left the United Kingdom, citing the father’s abusive behavior as the reason for her actions. The father argued that taking the child was unlawful and violated his parental rights.

The judgment of the court of first instance denied the claim for the return of the child to the United Kingdom. The judgment was based on the finding of a serious risk of psychological harm to the child if separated from the mother. The court took into account the child’s age, emotional bond with the mother, and adaptation to living conditions in Ukraine. The judgment of the appellate court overturned this decision, granting the father’s claim and stating that retaining the child in Ukraine violated his rights and that the evidence of negative consequences of returning the child to the United Kingdom was insufficient.

The Supreme Court judgment, after reviewing the case, upheld the judgment of the first instance court. It concluded that returning the child to the United Kingdom would not be in the child’s best interests due to a high risk of psychological harm. The court considered the psychologist’s findings regarding the child’s anxiety caused by the parents’ separation and the fact that the mother had created proper living conditions for the child in Ukraine.

The judgment also noted that martial law remains in effect due to ongoing aggression against Ukraine. However, in this specific case, considering the circumstances, the best interests of the child are served by remaining with the mother. The claimant failed to provide evidence to refute the “serious risk” to the child in the event of her return to the country of habitual residence before being taken to Ukraine by the mother.

The judgment concluded that the best interests of the child are paramount. It was established that separating the child from the mother would create intolerable conditions for the child. The evidence provided by the mother, including the psychologist’s opinion, was deemed sufficient to confirm the serious risk of psychological harm to the child. The first-instance court correctly applied the exceptions provided under Article 13(b) of the Hague Abduction Convention. The Supreme Court judgment ruled to allow the child to remain in Ukraine, as returning her to the United Kingdom would not be in her best interests.