M v F

This case concerns the mother’s (M) application for summary return of S, the parties’ daughter, now aged 5 to Ukraine. The application is made pursuant to the 1980 Hague Convention. The father (F) advances a broad defence to these proceedings relying upon Article 3 (Habitual Residence), Article 13(a) (Consent/Acquiescence) and Article 13(b) (Grave risk/Intolerability).

Applications pursuant to the Hague Convention are intended to be speedy and summary, recognising that in cases of abduction and wrongful retention, delay will invariably, perhaps always, be harmful to the child. It is instructive to consider the weight given to the impact on the children, recognised in the criminal law: Re H [2016] EWCA Crim 1754, [2017] 1 Cr App R (S) 23 (165).

The family’s background is an unusual one. The relationship between the parents is also complex. Holding fast to the summary nature of this jurisdiction, I do not consider it necessary to explore this in any great detail. It is relevant only when analysing whether the Article 13(a) defences are properly engaged.

F has been described as a “highly influential, ultra-high net worth businessman”. He has enjoyed considerable status and influence in Ukraine, in the past. M is a leading fashion designer, based in Kyiv, with a range of high-profile clients.

M is 21 years younger than F, she is now 40 years of age. The parties met in 2007. For most of their relationship, F was married to another woman. That marriage finally concluded in divorce, in 2023. The two relationships appear to have been broadly concurrent. However, M has a 16-year-old daughter (O), conceived in another relationship. O, who is not a subject of these proceedings, has a close relationship with F and is presently at a boarding school in England, where the fees are paid by F. Despite the highly litigious nature of these proceedings, M and F continue to have a sexual relationship. This is an agreed fact.

The family have lived what is described as “an international lifestyle”. F has access to a private jet. They have travelled and continue to travel extensively. They are Ukrainian. Neither girl was born there, both parents were born and grew up there, grandmothers, on both sides, continue to live in Kyiv. In a case where there are very few areas of agreement, the parties appear to accept that they, but more particularly S, lived and was habitually resident in Ukraine until February 2022. The significance of this date is now obvious to the world. In that period there was a considerable escalation of tension in Ukraine surrounding a potential Russian invasion. F stated that, and I am prepared to accept, he had extensive access to intelligence, not in the public domain, which left him in no doubt, at that time, that invasion loomed. He told me, in evidence, that in that period, he was sure of Russia’s intentions and that he believed that the war (or ‘special military operation’, to use the Russian nomenclature) was imminent. He also considered, from the information that he had, that the capture of Kyiv would take little more than a matter of weeks. It is an understatement to say that F would not have flourished under a Russian regime. Inevitably, it was necessary for him to leave his country.

Eventually, but not without considerable procrastination, M agreed that she and S would leave Ukraine with F. F has a villa in Italy, where they have all enjoyed holidays in the past. I hesitate to use the phrase ‘family holidays’ as, at this time, F was still married to another woman, with whom he has children. The reality appears to have been an arrangement of parallel families. For a while, they lived in the villa. This was never intended to be a permanent home. F obtained (along with his wife) leave to remain in the UK, in April 2022, pursuant to the Homes for Ukraine Scheme (UK). It is clear that F made this application without informing M. When M discovered, she was plainly very angry and, despite their continuing relationship, little of that anger appears to have dissipated.

M and S were granted leave to remain under the scheme, in July 2022. The evidence before me indicates that M, F and S were all distressed to be exiled to the villa in Italy. However idyllic it might have been for a holiday; the loss of their home manifestly caused the adults great pain. Instinct suggests that S too might have sensed this and felt something of it herself, but there is little information about this in the papers. M felt the distress most acutely. She had left her home, her business, and her mother behind. Unlike F, she did not have property or roots, however shallow, in any other country. She told me that she was “extremely sad” in this period. F, in a rather curmudgeonly way, agreed that she was, concentrating mainly on his own distress.

The invasion, as the world now knows, did not proceed in the way that had been anticipated by F. The war became one of attrition. After a while, M started returning regularly to Kyiv. S sometimes travelled with her. It is, at least as I understand it, acknowledged by F, that S lived in Kyiv for some 6 weeks between January and February 2023. For entirely obvious reasons, the family continued to be unsettled. However, between mid-October and mid-December 2023, they all returned to Kyiv and were joined by O, who plainly regards F as a father figure.

In September 2023, a place was secured for S at a highly respected school in Ukraine. In August 2023, I had understood that F purchased what appears to be a rather grand house in a highly regarded suburb of Kyiv. In fact, Ms Renton tells me that it was transferred to him as part of his divorce settlement and that it was matrimonial property acquired in 2017. To my mind, how it was acquired is of little significance. The retention of it indicates some level of commitment to Kyiv. In mid-December, the family travelled to London and from there departed, a few days later, on a quite extensive Caribbean holiday. The transcript of the messages between the parents indicate that M had some hesitation about the holiday plans.

Following the holiday, M told me and I accept, that she was clear that she and S were to return to Ukraine to resume their life there. It is obvious that M’s heart and home remain in her home city. Whilst contending this to be a departure from an agreed plan to live in London, F nonetheless accepts that on the 27^th January 2024, M told him in terms that she and S were intending to return to Kyiv.

It is M’s case that F is a highly controlling man who is used to others bending to his will. There is a good deal of evidence supporting M’s view. Both M and F have covertly recorded each other’s telephone conversations. In one such recording, which has been transcribed but is undated, F refers to the decision to leave Ukraine in February 2022 in these terms:

F has constructed an elaborate argument that the ‘plan’ to live in London, which he appears to contend began in those few days before the Caribbean holiday, was concluded but subsequently reneged upon by M. Ms Guha KC, Counsel on behalf of M, points to the evidence that all of S’s belongings (including her much loved dog) remained in Kyiv, which is of course, entirely inconsistent with having moved to live permanently in London. She also emphasises the controlling mindset, revealed in unambiguous terms in the extracts set out above. This, Ms Guha submits, illustrates behaviour which is corrosive of M’s autonomy and inimical to her independent decision making. F simply does not regard M’s consent to the family’s arrangements as necessary. He considers that the decisions are his “as head” of the family. He regards M’s submission under the weight of his persistence as equivalent to consent. It is not. In any event, I do not consider M ever agreed to the plan, though she was undoubtedly prepared to negotiate around it.

Ms Renton, Counsel on behalf of F, points to the exhibits which contain M’s signature relating to enrolling S in a school in London. There are also transcripts of conversations which reveal the mother as trying to conflate financial arrangements with some rather loosely defined concept of joint residence between London and Kyiv. Into this maelstrom must also be added an intense and highly emotional conflict between M and F, predicated on F’s belief that M is or has been having an affair with another man.

What is evident is that F and M have been living their own psychodrama for many years. It is also clear that the children’s welfare will inevitably have been damaged by it. Both adults have been entangled in a powerplay in which their own emotions, the needs of the children and money have all been conflated by both. Though there is no equality in this powerplay, M was prepared to play such cards as she perceived to be at her disposal. On the morning of the hearing, I received further covertly recorded transcripts of the parties’ telephone conversations. The following, which refers to a conversation on 19^th May 2024, illustrates the point I have made above:

The following passages do not make for edifying reading. I remind myself that both parents were covertly recording each other and that there is a degree of artifice to the conversations. Each parent was intending to trap the other into some kind of significant admission:

Ultimately, in considering whether the mother consented or acquiesced to a plan for S to move to live in London, I am satisfied, that whilst this became integral to parental powerplay, it remained unresolved. This must be considered in the context of the applicable legal framework, in which sphere the law is both clear and well-established.

The approach to ‘consent’ for these purposes is succinctly summarised by Mostyn J in JM v RM (Abduction: Retention: Acquiescence) [2021] EWHC 315 (Fam), [2021] Fam 261:

Similarly, in respect of ‘acquiescence’, Lord Browne-Wilkinson in Re H and Others (Minors) (Abduction: Acquiescence) [1998] AC 72, at [90] identified that:

Sub-paragraph 2 of Lord Browne-Wilkinson’s judgment emphasises the ‘subjective’ intention of the wronged parent as a question of fact; paragraph 4 is essentially an ‘objective’ evaluation of the evidence. Both the defences contemplated above are, to my mind, characterised by the need for clarity i.e., lack of ambiguity. The evidence here is the antithesis of both. Whilst it is not always coherent, the preponderant evidence reveals a couple in almost permanent conflict. Agreement on virtually anything seems to elude them. Their language is that of hostile negotiation and bargaining, in which neither seems prepared to say what they really feel. This does not even come close to establishing the clarity of evidence required by the defences. Insofar as they were arguable at all, they were predicated upon a confection of highly selective evidence which was incapable of establishing any clear forensic conclusion.

A further issue in dispute concerns where S is habitually resident. In their skeleton argument, Ms Renton and Mr Langford submit:

I will turn to the question as to how the court should address the situation in Ukraine in the paragraphs below. It is that issue which I believe to be central to this case. The other matters raised here strike me, essentially, as makeweights, though they have been pursued with vigour and tenacity. What is important to address is the emphasised sentence in the above passage. I say, at once, that I find it to be a proposition which runs entirely contrary to the preponderant evidence of where S herself regards her home to be. As the case law establishes, the habitual residence of a child will inevitably correspond to the place which reflects some degree of integration by that child in a social and family environment. A child will usually, though not inevitably, have the same habitual residence as the parent who cares for her. The younger the child, the more likely the proposition. Stability for the child is what characterises habitual residence and not days or time spent in a particular location. It is, as the case law has emphasised, the child who should be at the centre of the exercise when evaluating habitual residence. Yet again, the evidence in this case, which is voluminous, especially for a summary application, focuses on the parents. The statements reveal nothing of S’s character or personality nor do they engage properly with the kind of material that the case law indicates is required (see Re B (A Child) (Custody Rights: Habitual Residence) [2016] EWHC 2174 (Fam); [2016] 4 WLR 156; M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105, [2020] 4 WLR 137).

In her oral evidence, M was asked about S’s life in Kyiv. Almost immediately, it became clear that this is S’s home. Near to her mother’s house is her maternal grandmother, whom she sees regularly when in Kyiv. F’s mother also live close by but, perhaps understandably in the light of the complex parallel family arrangements that I have referred to, F’s mother has played a small part in S’s life. M spoke of S’s enthusiasm for ballet and piano, which are very much part of her life in Kyiv. These interests, to some extent, reflect those of her older sister, O. They are interests that M has encouraged and takes obvious pleasure in. She told me that S enjoyed dancing to the ballets of Prokofiev (Cinderella) and Tchaikovsky (The Nutcracker). It is poignant that those two great composers are of Ukrainian and Russian heritage, respectively. None of this matters to S however, whose real enjoyment of music and dance was reflected in the mother’s own joy in relating this to me. In addition to her daily routine, there are also both piano and extra ballet lessons. M said that S had not been practising the piano whilst in London.

Though F suggested that he might be S’s primary carer, based on some calculation of time spent with him in recent months, I was left with no doubt at all that it is M who is the primary carer. I have no real sense of S’s life, from the available evidence, in any other environment. It is only in the description of her life in Kyiv, with her mother, that she becomes three dimensional. Of note is her relationship with her nanny in Kyiv, with whom she clearly has a strong bond and whom she continues to speak with on the telephone regularly. In addition to all this, I have already noted the frequency and the duration of S’s time in Kyiv, including time spent with both her mother and father together. The pull of Kyiv to all this family is magnetic (including O). F told me that when he left Ukraine in February 2022, he had assumed that he would never be able to return. He too was plainly delighted at having had the unexpected opportunity to do so and, I note, as recently as 6 months ago.

Ms Guha and Mr Bennett advance the following:

As is clear from my own analysis, I agree with the above. I remind myself, of course, that S speaks Ukrainian at home. Even in the UK, there is a strong sense of her Ukrainian culture. I noticed a photograph of her with her father, with him wearing the Ukrainian flag, the national Trident symbol and a traditional Ukrainian folk shirt, which I understand is called a vyshyvanka. S’s school reports in Ukraine, predictably, also reveal her to be steeped in Ukrainian culture. Given that I have found that there was never a collective intention or agreement to move permanently to London, and having looked at the circumstances of S’s life, I am entirely satisfied that it is Kyiv and her family home there where S remains most integrated and which continues to provide her with stability. Whilst I do not wish to diminish F’s love and concern for his daughter, I am also satisfied that it is M who is S’s primary carer. It is Ukraine where S is habitually resident.

‘Grave risk of harm or intolerability’ was considered by the Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] 1 AC 144. These principles have been applied in a variety of cases by the Court of Appeal, see: Re P (A Child) (Abduction: Consideration of Evidence) [2018] 4 WLR 16 and Re C (Children) (Abduction: Article 13(b)) [2019] 1 FLR 1045 and Re A (A Child) (Article 13(b)) [2021] EWCA Civ 939. In E v D (Return Order) [2022] EWHC 1216 (Fam)

The applicable principles were summarised by MacDonald J in E v D (supra):

In Re E, the Supreme Court emphasised that in evaluating whether the exception in Art 13(b) has been established, the Judge is required to assess the evidence by reference to the civil standard of proof, whilst being mindful of the limitations involved in the summary nature of the Convention process. This is the ever-present tension within the Hague Convention. In this context, the Supreme Court emphasised that the approach in respect of the ‘harm defence’ is not one which “demands” the court to engage in a fact-finding exercise to determine the veracity of the matters alleged as grounding the defence. The court is required to assume the risk of harm at its highest and then, if that risk meets the test in Art 13(b), go on to consider whether protective measures sufficient to mitigate harm can be identified.

InRe IG (Child Abduction: Habitual Residence: Article 13(b))[2021] EWCA Civ 1123, Baker LJ further refines the applicable principles, emphasising that the Article 13(b) defence has what he refers to as “a high threshold”. In my judgment, this is key to understanding the scope and ambit of this defence. Baker LJ summarises the principles thus:

In paragraphs 5 and 6 (above), Baker LJ captures the essence of the tension discussed. The application of these principles in the context of war inevitably requires sensitive application. Nonetheless, properly analysed, the applicable principles remain and rather than indicating a need for departure from them, in fact, reinforce their breadth, importance, and adaptability. They continue to provide a rigorous and flexible framework, albeit that in the circumstances of war their application may, as I have indicated, require a degree of nuance.

It is also important to recognise that risk may be multifocal. Where it is, the court is required to look at the allegations individually but assess them cumulatively. In Re B (Children) [2022] 3 WLR 1315, Moylan LJ:

Counsel have referred me to the domestic case law as well as to a number of US cases, notably in the context of return orders to Israel, at the time of the second intifada (2000-2005):Freir v Freir 969 F.Supp. 436 (E.D.Mich.1996) and Silverman v Silverman, 338 F.3d 886 (8th Cir. 2003). I was also taken to the case of Amalin Hazbun Escaf v Isidoro Rodriquez, a decision of the US District Court for the Eastern District of Virginia, concerning an application under the Hague Convention and the International Child Abduction Remedies Act, relating to risk of kidnapping and violence in Colombia in that period. For completeness, I have considered Re S (Abduction: Custody Rights) [2002] EWCA Civ 809; [2002] 2 FLR 815 and Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] AC 1288. In the latter case, the House of Lords declined to disturb the rejection, at first instance, of an Article 13(b) defence predicated on the assertion of Zimbabwe as ‘a failed state’. It is not necessary to undertake an exegesis of the case law, it establishes only one principle, namely that each individual case requires to be considered on its own particular facts, focused on the circumstances of the subject child.

It must be remembered that the Russian-Ukrainian War really began in February 2014. Following Ukraine's Revolution of Dignity, Russia occupied and annexed Crimea from Ukraine and supported pro-Russian separatists fighting the Ukrainian military in the Donbas war. Accordingly, since 2015, Ukraine has, inevitably, declared to the Hague Conference that it cannot comply with its obligations under the 1980 Hague Convention in those areas where it can no longer exert control. It is manifest that this does not impact, in any way, upon the receiving state under the Convention. Thus, the English courts have not been prevented from ordering summary return of children to Ukraine, see Q v R [2022] EWHC 2961 (Fam) and Re N (A Child), Re (Ukraine: Art. 13(b)) [2024] EWHC 871 (Fam).

Though Ms Renton has emphasised the delays in achieving access to the family courts in Kyiv, I note that the US State Department 2024 Annual Report on International Parental Child Abduction states “the judicial authorities of Ukraine routinely reached timely decisions”. In relation to Ukraine, the report concludes: “Department Recommendations: To the extent possible, given the ongoing Russian invasion, the Department and the Ukrainian Central Authority will continue the effective processing and resolution of cases under the Convention”.

For reasons which I will turn to shortly, I permitted the instruction of an expert witness in this case, Dr Roman Yedeliev, International Law and Associate Professor at the International Law Department of Taras Shevchenko National University of Kyiv. His report contained the following passage and supports the view of the US State Department:

Ms Renton put to Dr Yedeliev that the delays in the court process were more extensive than he had suggested. He accepted that he was not in a position to provide any up to date data on this and thus not able to contradict Ms Renton’s assertion. On 8^th May 2024, F filed a statement with attached exhibits. This document is 330 pages. The courts have repeatedly stated that the filing of voluminous material in these applications is strongly to be deprecated. I repeat, this is a summary jurisdiction. For it to be effective, cases must be listed quickly. For this to happen, case management must exert tight control over the documentation. Judicial reading time, built into the estimated length of hearing, is rarely allocated to these cases and judgment writing time is a chimera. Solicitors who file material of this quantity must realise that they simply do not assist their clients, it is more likely that important points become lost in the volume of information. Equally, it generates a sense of inequality for the opposing party. In this sphere, concise, focused evidence on the relevant issues is even more than usually necessary. In every sense, less is more!

The force of much of F’s documentation was to advance what I will, for convenience, call a ‘pessimistic’ view of life in Kyiv, emphasising the risk to S of returning there. One of the consequences of filing this lengthy material was that the lawyers acting for M sought to counter it by seeking to instruct an expert who could advise on the realities of day-to-day life there. The agreed instructions, which I will return to below, went wider than that. To achieve parity between the parties and because I perceived there to be some potential utility in this line of enquiry, I granted leave for Dr Yedeliev to be instructed. I have explained how the expert came to be instructed in this case because I wish to signal, in the clearest possible terms, that such instructions should, in my judgement, be regarded as exceptional and rarely necessary. The key elements of the evidence and those upon which I have relied, were largely available directly from the parties and could, to my mind, have been presented, succinctly, in their own statements. This is not intended, in any way, to be critical of Dr Yedeliev, whose evidence was thoughtful and carefully presented, though I agree with Ms Renton that there was, at times, a detectable nationalism in his approach. All this, however, simply indicates that the issue we are concerned with is, of itself, likely to be unreceptive to expert assessment.

In the United Kingdom, there is regular media coverage of the war in Ukraine. Ms Renton makes the following submission:

One of the difficulties, for a court, in evaluating references, by the parties, to media reports and indeed the reports of some external bodies or academic commentary, is evaluating the accuracy of the core information. It is, for example, relevant to note that F’s own access to intelligence in the early months of 2022, which influenced the decision to go to Italy, proved to be inaccurate. Kyiv did not topple in weeks and the war has proved to be far more protracted than the intelligence he had access to had led him to anticipate. It is also relevant that F, despite his own heightened risk, felt sufficiently confident, both to return to Kyiv and to retain property there at the end of last year. Further, it is a universal feature of war that truth is its first casualty. The pervasiveness of this point is illustrated by the fact that it was first made by Aeschylus (Agamemnon: “The first casualty of war is the truth”, 458 BC). Information placed into the public domain by both Ukraine and Russia will, inevitably, be influenced by strategic expediency. Propaganda is a weapon of war.

M is presently living in Ukraine and travelled to London for this hearing. As I have stated, she runs her business in Kyiv. It is necessary, when coming to London, for her to travel to Poland and to fly from Polish airports. This is one of many restrictions caused by the war to day-to-day life in Kyiv. By way of further example, sometimes children’s education has to be conducted in bunkers or air raid shelters. M told me that people make the best of things. It is almost trite to say that a nation at war generates resilience. I sensed something of this in the mother’s own written and oral evidence. Though there have been missile attacks on Kyiv (e.g., power station) they have been infrequent. The primary risk would appear to be shrapnel injuries from missiles shot down by Ukraine anti-aircraft fire. F’s case, properly analysed, is that Russian forces are resurgent and that Ukraine’s ability to resist is diminished. F contends that the summer months are likely to see an escalation in the war generally and with Kyiv potentially exposed to greater onslaught. This future risk is articulated in Ms Renton and Mr Langford’s skeleton argument in these terms. They highlight the following paragraph in bold print and so therefore do I:

There is simply no way of evaluating the accuracy of this forecast beyond recognising its undoubted plausibility. It is, however, the broadest of generalisations nor does it cast much light on whether life in Kyiv is likely to change to a point where the combat poses a grave risk of harm to S.

In their arguments, Ms Renton and Mr Langford place considerable emphasis on the advice of the Foreign, Commonwealth & Development Office (FCDO), which states:

This submission fails to engage either with the objective of the FCDO guidance or those whom it is intended to address. I do not consider that the FCDO advice comes close to supporting the weight Ms Renton places upon it. It is inevitably the case that foreign travellers face a different and heightened risk from that of Ukrainian nationals who have lived, daily, with the challenges and privations of war for some time and have adapted their lives in response to it. Both Dr Yedeliev and M told me, for example, that some people in Kyiv (which M confirmed included her family) had installed generators as a backup during electricity cuts. This makes life much easier and safer. The UK traveller may not have access to such resources.

Many of us might imagine that call to shelters in an air raid, or when missiles are airborne overhead, is in response to sirens. Though sirens are still sounded, in fact, the citizens of Kyiv rely on and are familiar with mobile phone alerts, generated by government apps. Dr Yedeliev suggested that these might not always be speedily accessible to foreign travellers or that they might even be unaware of them. There are other obvious challenges, for example, in relation to language. The risk matrix is, therefore, wholly different for UK nationals. The guidance is prepared for an entirely different purpose from the exercise that I am engaged in here. Whilst it may have some place in the broader evidential canvas, it most certainly does not assume the elevated role Ms Renton contends for it. Neither would the FCDO expect their guidance to be used in the way that Ms Renton asserts it should be. It not written with this in mind. Indeed, the FCDO would, I am confident, be alarmed at their advice being construed as, in any way, restrictive of the movements of a Ukrainian national. Those evaluating risk to themselves and their families when their country is at war, will inevitably weigh into the balance the importance to them of remaining in their homeland with family, friends and neighbours. Remaining may, itself, be an act of national solidarity. There are also practical considerations. Here, M’s home, business and livelihood remains in Kyiv.

Ms Guha submits that much of the evidence that I have considered in relation to determining the question of habitual residence has further resonance in that it indicates that S feels safe in her home. Her attachment to it contraindicates any anxiety. I think this is an insightful point and I agree with it.

Ms Guha places great emphasis on the expert evidence and in particular, Dr Yedeliev’s view that Kyiv, with sensible precautions, carries no greater statistical risk of injury or death by Russian missile attack than injury as a result of a car accident. On this point, she makes the following submission:

With respect to Ms Guha, for the reasons I have already referred to, I do not find myself relying heavily on Dr Yedeliev’s report. I do not need to. I find the parents’ evidence and lived experiences, both as they recount in the witness box and in their statements, provides a secure evidential base for determining the key issue. The chronology of the parents’ respective visits to Kyiv (and their duration) also illuminates their attitude to risk, as, to some degree, does M’s determination to remain in Kyiv herself. I should add that when put to the assay, that core evidence, on all this, reveals a rather surprising degree of common ground between the parents. This is because, as I have foreshadowed above, F’s essential objection to his daughter’s return, when properly analysed, is his anxiety, surrounding escalating future conflict most particularly, over the coming summer months. As illustrated in para. 41 above, this is the primary focus of Ms Renton’s argument.

Ultimately, whilst her reasoning is undoubtedly plausible, it is nonetheless speculative. Moreover, it does not establish a threat to Kyiv itself. The information available is far too generalised. It does not, from the perspective of S, come close to establishing the “high threshold” emphasised by Baker LJ in Re IG (supra). Generalisations of this kind were deprecated by Williams J in Q v R [2022] EWHC 2961 (Fam), where he highlighted the unsatisfactory nature of a “general or broad-brush approach”, where a “finer brush” is required. I, with respect, agree with that approach.

Following the conclusion of the hearing, Ms Guha and Mr Bennett discovered and submitted a further authority: IF v JG [2023] IEHC 495. This is a High Court decision from the Republic of Ireland. It involved a decision to return a child to Ukraine and a case in which expert evidence had been solicited. Ms Renton and Mr Langford submitted a note, in response, the force of which is satisfactorily summarised in their last paragraph:

I agree with that submission. For all the reasons that I have discussed above, I am strongly of the view that these cases are both situational and child-specific and that the comparative authorities ultimately demonstrate this. I do, however, consider Ms Justice Gearty’s approach to protective measures for the child to be attractive:

I am satisfied that the evidence establishes that Kyiv remains a functioning city. As I have stated, whilst the expert evidence buttresses this, it is established primarily on the evidence of the parents. There may be black outs, periods when children must be educated in shelters and delays in gaining access to the court, may be longer than the US State Department Annual Report (supra) suggests, but what is clear is that the pillars of Kyiv’s civic infrastructure remain intact. This in itself supports a conclusion that it has, so far, weathered the war effectively. I do not consider that the Court should be drawn into a speculative and generalised examination as to the likely evolution of the war over the summer months. I do not consider the Court should regard itself as in a position to do so. I do not consider that this generalised evidence achieves the “high threshold required”. I would go further and say that it does not come close to it.

In any event, I am clear that her family are very well placed to protect S and in a strong position to mitigate any risk to her should the situation in Kyiv start to deteriorate. Though the parental conflict has distracted the focus of both parents from the needs of both their children, I have no doubt that they have the real capacity to construct sensible and pragmatic solutions if a point comes where M considers that S would be safer outside Ukraine. For the time being, S needs the safety and stability of her home and her family, this is only capable of being met with her mother in Kyiv and accordingly, I order her summary return.