Court of Appeal dismisses appeal to order return of child to Ukraine under Hague Convention.

APPROVED NO FURTHER REDACTION NEEDED

THE COURT OF APPEAL

Court of Appeal Record No.: 2024 243

High Court Record No.: 2024 2 HLC

Neutral Citation No.: [2025] IECA 83

Faherty J. Binchy J. Collins J.

IN THE MATTER OF CHILD ABDUCTION AND ENFORCEMENT OF

CUSTODY ORDERS ACT, 1991 AND

AND

IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS

OF INTERNATIONAL CHILD ABDUCTION

AND

AND IN THE MATTER OF THE INHERENT JURISDICTION OF THE COURT

AND IN THE MATTER OF A.O.P., A MINOR

BETWEEN: O.T.

APPLICANT

- AND -

D.T.

RESPONDENT

Note: Redactions and alterations have been made to protect the identities of all parties JUDGMENT of Mr. Justice Donald Binchy delivered on the 9th day of April 2025

1. This is an appeal from a judgment of Gearty J. delivered on 4th October 2024, and the Order made by Gearty J. consequent on that judgment of 16th October 2024 whereby it was ordered that W, the child of the parties, be returned to the jurisdiction of the courts of Ukraine within two weeks. The appellant (the respondent mother in the High Court) filed a notice of appeal from the judgment of the High Court on 30th October 2024 and filed an amended notice of appeal on 15th November 2024.

2. The appellant was represented up to the time of delivery of the judgment of the High Court, but was unsuccessful in securing representation for the purposes of this appeal. Accordingly, the appellant has been self-represented since delivery of the judgment of the High Court and represented herself most ably in the conduct of her appeal which was heard on 5th March last. The appeal had been listed for hearing on two previous dates 15th January and 22nd January, but did not proceed on those dates for reasons explained below.

3. The agreed background is helpfully summarised by the judgment under appeal, at para.

2.1 as follows: -

“These parties married and had a son over ten years ago. Some years later, the marriage ended. The Applicant father continued to have access to his son. They lived in the same region in Ukraine for all of the relevant time. In March of 2022, the Respondent [the appellant in this appeal] and their son left Ukraine for Poland with a group of mothers and children all of whom had been sheltering in the basement of the Applicant’s [the respondent in this appeal] residential block in Ukraine for 8 days. There were numerous messages between the parties in the subsequent months, many of which were exhibited. In November of 2022, the Respondent brought her son to Ireland. In January of 2024 the Applicant sought assistance from the Central Authority for Ukraine for the return of the child to Ukraine.”

The Evidence in the High Court

4. The respondent maintains that in early March 2022, he and his ex-wife, the appellant, agreed that she could travel with a group of mothers and children to Poland in the interests of the safety of the children. It will be recalled that the Russian invasion of Ukraine had commenced on 24th February 2022. The respondent maintains that he agreed with the appellant that she and W would return to Ukraine in May 2022, both for the purposes of study and a medical examination, and subject to it being safe to do so. However, the appellant did not then return, and the respondent maintains that she did not inform him of her intentions nor inform him of her whereabouts from that time onwards. In her affidavit sworn in reply to the application for a return order, the appellant denies that it was agreed that she and W would return in May of 2022 and claims that what was in fact agreed was that she and W would not return until the war was over. In her amended notice of appeal, the appellant changed her position in this regard insofar as she stated that “[t]he initial consent for temporary stay abroad was based on the assumption that the crisis would be short-term… .”

5. In any case, while the party of mothers and children whom the appellant and W accompanied to Poland returned to Ukraine in May 2022, the appellant and W continued to reside in Poland. The appellant maintains that she enrolled W in primary school between March and June 2022, and she also maintains that she was in contact with the respondent during this period, but she had no record of this correspondence because she deleted same in order to free up space on her device.

6. Although she does not say exactly when, the appellant averred (in her first affidavit sworn in reply to the return application) that because the city of Kyiv remained under fire, and the war was ongoing in various parts of Ukraine, she decided to bring W to England or to Ireland as she felt that it would safer there if the war were to spill over the border into Poland. She averred that while the Kyiv region is not near the frontline, there are missile attacks in the region and in other cities in Ukraine from time to time. That is as far as she puts the issue of risk in her replying affidavit. The appellant then explains that she left Poland and travelled to Ireland in November 2022, and she claims that the respondent was informed of her plans to do so. As will become apparent, this is vehemently denied by the respondent.

7. The appellant describes where she and W resided in Ireland from 31st May 2023 and provides detail as to W’s enrolment in school and his participation in extracurricular activities such as football and chess. The appellant claims that since leaving Ukraine, the respondent has had contact with both the appellant and W by phone, and that the respondent always knew the whereabouts of the appellant and W. She denied ever blocking contact between the respondent and W, and denied preventing W from giving the respondent information as to the whereabouts of the appellant and W. The appellant denies concealing her whereabouts and avers that she complied with all the legal requirements when she and W moved to Poland and subsequently to Ireland. The appellant averred that W is very happy living in Ireland, has made friends and is getting on well at school.

8. The respondent swore an affidavit in reply to that of the appellant on 19th June 2024. In this affidavit, the respondent acknowledges that he had communications with the appellant and with W during the course of 2022, but he claims that he was not informed as to their whereabouts. The respondent avers that W had contact with a school friend in Ukraine in which W informed his friend that he was not to reveal information regarding W’s whereabouts. The respondent exhibited copies of these text messages.

9. The respondent also averred that the move of the group of children and their mothers was arranged by a friend of his, referred to in the High Court judgment as Maria, and he exhibited screenshots of text messages exchanged with Maria which make clear that she considered that the move from Ukraine to Poland would be for no more than one or two months. He also exhibits screenshots of messages exchanged between Maria and the appellant, in May of 2022, which Maria forwarded to the respondent at his request. In these messages, Maria informs the appellant that she and her family have travelled home, and the appellant replies “we are not planning to return yet.” Maria then asks if the appellant and W stopped in Poland or went further, and the appellant does not reply to the question.

10. There are further averments by the respondent about communications as the year

(2022) progressed, but he says that at all times the appellant avoided giving any indication as to where she and W were, or when they would return to Ukraine. The respondent avers that he did not know the whereabouts of the appellant and W after they left Poland and he had to make numerous inquiries, with the assistance of lawyers, as well as making contact with Embassies and Consulates of Ukraine. He avers that the appellant failed in her legal duty to enter the child on the Consular Register in the relevant Consulate of Ukraine after she arrived in another country. He avers that under Ukrainian law, every time a child’s place of residence changes, there is a legal obligation on the parent responsible for that change to inform the Consulate. While the appellant swore a further detailed affidavit in reply to this affidavit, she does not address that averment.

11. The respondent provides considerable detail of all of the inquiries that he made to establish the whereabouts of the appellant and W. However, he says that he did not become aware of where they were until in or about June 2023, when the appellant’s father died and her mother at the time made reference to W being in Ireland. This was then relayed to the respondent by Maria in the messages referred to above. The respondent provides details of the efforts that he made to retain lawyers and to apply for an order directing the return of W to Ukraine.

12. The respondent also addresses in this affidavit the issue of safety in the Kyiv region, and he avers that neither the city of Kyiv nor the region around it are active combat zones. He avers that the settlement where he lives is covered by the best air defence systems because of its proximity to Boryspil International airport, the largest airport in Ukraine. He also avers that there had been no hostilities in the area. This was in response to the averment made by the appellant in para. 12 of her first replying affidavit that, while hostilities have eased around the Kyiv region, the war is still ongoing (see para. 6 above).

Views of the Child: Evidence and Report of the Assessor

13. Prior to the matter coming on for hearing in the High Court, a report was obtained from Ms. Ruth Moore O’Ferrall, Family Law Assessor (the “assessor”), with a view to obtaining the views of the child. The assessor found W to be a kind and mannerly child, with a pleasant disposition. He engaged well in the assessment. She noted that he is largely bilingual. At the time of the interview, the appellant and W were in their second placement hotel in Ireland, and W was in school in that location for a year. He expressed himself as being very happy there.

14. W informed the assessor that he is afraid to return to Ukraine. He believes it to be extremely dangerous and he said to the assessor that “thousands of people there are murdered every day”. He said that where his father lives has no air defences. He recalled the week he spent in the basement of his father’s apartment building before departing for Poland. He describes the conditions there as being terrible and said to the assessor: “imagine sitting in the bathroom because it’s the safest place in your house and then a rocket coming and the glass flying out of your windows.” He said that some people that his mother knew had been killed in the war.

15. W said to the assessor that he objected to returning to live in Ukraine because he is afraid of dying. He said that it is not safe where his father is and that he did not believe that the war would stop until Ukraine is destroyed.

16. As regards his relationship with his father, W said that his father had not been in contact with him for seven months, and that the last time they had spoken the respondent had lectured him. W said that he wanted the court to know that he loved his mother very much, and that she is trying to protect him.

17. He spoke about his hobbies as being hip-hop dancing, football and egg painting. The assessor considered that he had age-appropriate capacity to express his own independently formed wishes and feelings.

18. The assessor concluded her report as follows: -

“W is a child on the cusp of adolescence. He has moved across Europe and lived in temporary accommodations in several countries, apparently to escape the war in Ukraine. He expresses a reasonable desire for stability and safety. W impresses as a very kind and thoughtful child who describes having remained committed to his education despite the turbulence in his life.”

Judgment of the High Court

19. In the High Court, the appellant objected to the application on five grounds:

(1) That the respondent had consented to the removal of W from Ukraine for the duration of the war (article 13(a) of the Hague Convention);

(2) That the respondent had acquiesced in W’s continued stay outside Ukraine (article 13(a) of the Convention);

(3) That the respondent had delayed and W is now settled in Ireland having regard to article 12 of the Convention;

(4) That W objected to return to Ukraine (article 13 of the Convention); and

(5) That return to Ukraine would place W at grave risk contrary to article 13(b) of the Convention.

20. At the outset of her judgment, the High Court judge reminded herself of the objectives of the Convention and of the general principles applicable to such applications. She noted that an applicant must prove, on the balance of probabilities, that he has rights of custody, that he was exercising those rights and that the child was habitually resident in the relevant country at the time of retention. She stated that once an applicant has established these matters, the burden shifts to the respondent who must establish a defence and persuade the court to exercise its discretion not to return, as a result of the defence.

21. In this case, there was no controversy around the father’s exercise of custody rights prior to W’s departure from Ukraine. The judge held that it was clear that the child was habitually resident in Ukraine prior to his departure, and it had not been suggested that he had become habitually resident in Poland prior to arriving in this jurisdiction. The judge then proceeded to address the defences offered by the appellant.

(1) Consent

22. In considering the issue of consent, the judge conducted a detailed analysis of the affidavit evidence, and the exhibits provided by each of the parties. On the basis of that evidence, she found that, while the respondent had consented to the initial removal of W from the jurisdiction, that consent did not extend beyond two months. The judge further found that the appellant persistently ignored questions, from both the respondent and Maria, as to her whereabouts. She noted that the appellant’s mother, in exchanges of messages with the respondent, also deflected inquiries made by the respondent seeking information and reassurances. She noted that in September 2022, the respondent had asked the appellant to come home, but she had replied that she would only discuss return when the war is over.

23. The judge found as a fact that the respondent had been given no information (in spite of his enquiries) as to the whereabouts of his son. Although the appellant stated in her replying affidavit that the respondent had been informed of her plans to travel to Ireland before she left Poland, she did not exhibit any proof of this nor give any indication as to who it is claimed told the respondent of this, or how he was so told. The judge also noted that the respondent had exhibited text messages exchanged between W and a friend in Ukraine. These were exchanged just prior to the move to Ireland, and W impressed upon his friend that he should not reveal his whereabouts to the respondent.

24. Having conducted a thorough review of the evidence, the judge concluded that there was no evidence of consent on the part of the respondent to W remaining outside of the jurisdiction of Ukraine, or to a move to Ireland. The judge concluded that the limits of the consent that had been given by the respondent – to the removal of W to Poland for two months – had been breached by his subsequent removal to Ireland. The judge found that there was no evidence of any agreement on the part of the respondent that W would remain in Ireland until the end of the war. On the contrary, the judge said, all of the evidence suggests a consent limited to a stay of two months in Poland.

25. The judge further concluded that the evidence suggested subterfuge on the part of the appellant and that the exhibits make it clear that the appellant thwarted the respondent’s attempts to find out where his son was, including impressing upon W that he was not to reveal his location to anyone lest his father discover it. The judge also found that the appellant enlisted the assistance of her own mother to conceal their location.

(2) Acquiescence

26. The judge noted that while the issue of acquiescence had been raised, it was not pressed with any great force in argument. She found that the appellant had not provided any specific example of acquiescence, and that the exchanges between the parties in their text messages rebut the suggestion of acquiescence on the part of the respondent.

(3) Delay and settlement

27. At the outset of her consideration of the appellant’s objections under this heading, the judge had regard to relevant authorities, including P. v. B. (No. 2) [1998] 4 I.R. 185, P.L. v. E.C. [2008] IESC 19, [2009] 1 I.R. 1 and Z.D. v. K.D. [2008] IEHC 176, [2008] 4 I.R. 751. The judge rejected the claim of any delay on the part of the respondent. She again referred to the subterfuge and concealment on the part of the appellant. She said the difficulty for the appellant in this defence is that much of the delay on the part of the respondent in the bringing of the application was attributable to the appellant herself, by her refusal to tell the respondent where she was. The judge noted that as late as 2023, when she had been away from home for well over a year, she was still refusing to give an address to the respondent. The judge referred to the evidence that the appellant had not contacted her local consulate, and she noted that the texts exhibited by the parties clearly show a concerted effort on the part of the appellant to hide her own location and that of W. The respondent, on the other hand, never stopped asking for details of their location and repeatedly requested their return.

28. Hence, while the appellant argued that the application should be refused because the respondent had commenced proceedings more than one year from the date of retention of the child, the judge rejected that argument because the delay was caused by the appellant herself.

29. As to the argument about settlement, the judge noted that while the evidence established that W is feeling safe here, there is no sense from the evidence that he is settled in the sense that he has made an emotional home here with friends and interests to compare with those he left in Ukraine. She noted that W has moved at least six times in the years since he left Ukraine and that having finally come to Ireland, he had moved before the commencement of the within proceedings. The judge further noted that W was aware that his father was seeking his location, and that at no point was there a sense of security for the appellant and W which might support a finding that there had been a real and emotional settlement of the child in a new community. The judge considered that the case was similar on its facts to Z.D. v. K.D. [2008] IEHC 176, a case in which there was also evidence of subterfuge, and in which there was insufficient evidence of significant settlement in terms of place, home, school, people, friends, activities and opportunities in Ireland.

The Views of the Child: W’s Objection

30. The High Court judge commenced her consideration with the well-known three stage test articulated by Potter P. in the English Court of Appeal in Re M (Abduction: Child’s Objections) [2007] EWCA Civ 260 which, it will be recalled, involves (1) ascertaining if a child does in fact object, (2) if so, what is the weight of the objection having regard to the maturity of the child and (3) whether the objection is sufficient to outweigh the counterbalancing objectives of the Convention. The judge noted that while article 13 requires the court to take account of the views of the child, it does not vest the decision-making power in the child, not least because that would place an unfair burden on the child.

31. The judge then proceeded to consider the principles articulated in several cases including A.U. v. T.N.U. [2011] 3 I.R. 683 in which Denham C.J. stated that “A court, in deciding whether a child objects to his or her return, should have regard to the totality of the evidence.” The judge noted that the weight to be attached to the views of the child increases as he gets older, and referred to M.S. v. A.R. [2019] IESC 10.

32. In an important passage, at para. 6.8 the judge held that: -

“The best interests of any child in this situation are mirrored by the animating principles of the Convention. This includes the child's wishes, of course, but that is only one factor. A child is entitled to have a meaningful relationship with both parents. A child is entitled to a degree of security in life and repeated upheaval, particularly if moves are made by stealth as was the case here, is contrary to that aim. If one removes any child from the company of the other parent, lasting damage is done to the child. While the child himself may have preferences, or even objections to living in a particular country, it is relatively rare for a child's objection to outweigh the Convention objectives and to persuade a court to refuse to return the child based on those objections alone. Nonetheless, the views of the child are important and must be weighed carefully in the balance when making this important decision which will have such a significant effect on that child”.

33. Having made those observations, the judge then proceeded to consider the views of the child as recorded in the report of the assessor. At the outset of this section of her judgment, the judge noted that W has objected to being returned and that there is no other way of reading his views; moreover, she was satisfied that he is sufficiently mature for her to take those views into account.

34. The judge observed that a serious factor in the case is that the child has formed the view that his father’s village is at risk, but there is no evidence of this in any of the affidavits

– on the contrary, there are averments that the respondent lives in a place in which there are alerts and bomb shelters, but where there has not been an invasion or any evidence of explosions or attacks of any kind in the area, let alone evidence of murders. Therefore, the judge noted, while the child’s fears appear to be genuine, they are not evidence based.

35. The judge stated, at para 7.6, that she took W’s objections seriously and had considered his views very carefully. However, she found, his only objection to return was based on his personal safety. While, the judge observed, anybody would sympathise with his concerns, they do not appear to have been formed on a sound factual basis.

36. Having considered what she described as “W’s poorly substantiated view” in light of the objectives of the Convention, the judge concluded that W’s unsubstantiated fears could not outweigh the Convention imperative to return a child to its home. The judge also noted that the respondent is willing to provide undertakings to reassure the court, the appellant and W himself that he will be moved if there is any threat to him. Such arrangements may include undertakings for appropriate counselling or medical help in order to manage W’s fears. The judge observed that W’s extended family all remain in Ukraine and his own life here has all the hallmarks of a temporary settlement. She noted that W had a continued preference for his native language and there are no detailed references to childhood friendships or activities here.

37. The judge noted that there is a significant overlap between the views of the child and the grave risk defence, which she then addressed separately.

Grave Risk

38. The judge considered a number of authorities, including the judgment of Finlay Geoghegan J. in C.A. v. C.A. [2010] 2 I.R. 162, Fennelly J. in A.S. v. P.S. (Child Abduction) [1998] 2 I.R. 244 (para. 57) (the reference here to A.S. v. P.S. is an error and should be to P.L. v. E.C. [1998] 1 I.R. 1, at para. 58) and C.T. v. P.S. [2021] IECA 132, a judgment of this Court in which Collins J. surveyed the history of cases in which the defence was raised.

39. At para. 8.2, the judge noted that in C.A. v. C.A. Finlay Geoghegan J. had held that: - “[T]he evidential burden of establishing that there is a grave risk… is on the person opposing the order for return, and is of a high threshold. The type of evidence which must be adduced] must be” clear and compelling evidence”. At para. 8.3., the judge summarised the kinds of risk that have previously persuaded courts to refuse to return a child as follows: a risk of violence to the child, a risk of suicide to the child or to the respondent, or evidence of an event such as famine or war which would render the child's position unsafe, as set out in A.S. v. P.S.

40. At para. 8.8, the judge noted that the defence of grave risk must be supported by evidence. So, therefore, the actual risk to the child relied upon must be supported by evidence, and a statement from a child to the effect that he believes himself to be at risk is insufficient to establish the defence. She also noted that the law in respect of grave risk has long determined that a claim of risk due to the psychological effects of a return must be supported, ideally by medical evidence. She stated that notwithstanding the conflict in Ukraine, there is no evidence to substantiate the appellant’s claims of grave risk to the child, if returned to Ukraine. She further stated that at the time of writing the judgment, most Ukrainian children remain safely at home in Ukraine, and that it is insufficient to suggest that there is a grave risk of remaining in Ukraine without details as to why, details describing what conditions prevail in the place to which the child would otherwise return and details of the current situation in that region or city. No such information had been provided in this case.

41. The judge also noted that in R. v. R. [2015] IECA 265, Finlay Geoghegan J. had emphasised the trust to be put in the courts of the child’s habitual residence to protect the child even in a situation where physical harm was a risk faced by the child. In this case therefore, the High Court judge held that the court must consider the facilities available in Ukraine to assess and to mitigate the risk presenting. She noted that there has been no suggestion that courts are not sitting or that there would be any difficulty in making any relevant application. She also referred to the respondent’s undertaking to mitigate any risk to W, including the possibility of sensible or pragmatic solutions which might address any concerns that W or the appellant has in the event of a return.

The Respondent’s Undertaking

42. As I have just mentioned, in making her order, the judge placed reliance upon an undertaking provided by the respondent. This undertaking (as set out in Schedule 1 of the order) includes a commitment to move W to the West of Ukraine in the event of any attack on the district where the respondent resides, the Kyiv region or the city of Kyiv. Alternatively, he undertakes to arrange for the evacuation of W to Poland if necessary. He gives particulars of the plans and preparations that he has made in order to fulfil his undertaking. He also undertakes that, on W's return, he will immediately bring him to an appropriate therapist for counselling to help with his fears of being in Ukraine.

Notice of Appeal

43. The appellant filed a notice of appeal on 30th October 2024, and subsequently filed an amended notice of appeal on 15th November 2024. It appears from the first notice of appeal that at the time of drafting it, the appellant may not have had a copy of the High Court judgment and she reserved her right to expand upon her grounds of appeal upon receipt of the same. In any case, the appeal proceeded on the basis of the amended notice of appeal.

44. As so often happens in the case of unrepresented parties, and sometimes even in the case of represented parties, the amended notice of appeal comprises for the most part submissions re-arguing the appellant’s case afresh in the light of the High Court judgment rather than identifying grounds of law or fact in respect of which it is contended that the High Court judge fell into error.

45. At the hearing of this appeal, counsel for the respondent submitted that, broadly speaking, four grounds of appeal can be discerned in the amended notice of appeal:

1. That the High Court judge erred in concluding that the respondent had given consent to the removal of W from Ukraine for a period of no more than two months;

2. That the High Court judge erred in her conclusion that the criteria for the defence of settlement were not satisfied;

3. That the High Court judge erred in failing to take account of the objections of W; and

4. That the High Court judge erred in failing to find that the return of W to Ukraine would constitute a grave risk within the meaning of article 13(b) of the Convention.

46. Having carefully considered the amended notice of appeal, I think that that is a fair summary of the appellant’s grounds of appeal, and I did not understand the appellant to object to this summary at the appeal hearing.

Incidents in the Hearing of the Appeal

47. Whilst the appeal was first listed for hearing on 15th January 2025 it did not proceed and the time allocated therefore was taken up with the appellant’s application to this Court to adduce new evidence, to which the respondent objected. The appellant maintained that, at a directions hearing on 8th November 2024, she had been given permission to adduce new evidence. It is apparent from the court order that that was not so. What was in fact ordered was that the appellant should deliver the new documents that she wished to rely on to the respondent and her motion was adjourned to the hearing of the appeal. It has to be said that a lack of clarity surrounds this because the motion the order referred to, which the appellant (who by this time was unrepresented) had issued on 30th October 2024, states her intention to appeal the High Court decision but does not mention the introduction of new evidence.

That being said, this Court was nevertheless satisfied, from the terms of the High Court order of 8th November 2024, that the directions judge had not made an order admitting new evidence.

48. In the course of hearing the application to admit new evidence, it transpired that a number of the documents the appellant sought to introduce were not new evidence, by reason of which no difficulty in their admission arose. A considerable number of the documents she sought to adduce were, however, new and had been created after delivery of the High Court judgment. Without itemising them, they included: correspondence from the Ministry of Defence in Ukraine regarding the impact of the war, correspondence from W’s maternal grandmother concerning W’s relationship with his father, an opinion/report of a psychiatrist in Ukraine and an opinion/report from a neurologist in Ukraine, both of which post-dated the hearing in the High Court, correspondence from other Ukrainian mothers who have come to Ireland with their children because of the war, vouching documentation relating to the participation of the appellant in an office skills course and photographs of W partaking in activities with other children in Ireland, as well as school reports.

49. The respondent objected to the submission of this new documentation on several grounds. Firstly, it was submitted that the only issues litigated in the High Court were those related to the article 13 defences, and the judgment of the High Court addresses the arguments advanced by the appellant in relation to those defences in the High Court. To the extent that any of the documentation the appellant sought to have admitted is unrelated to those defences, the respondent submitted that it ought not to be admitted on appeal. Secondly, the respondent submitted, applications under the Convention are intended to be treated as a matter of urgency, and it is inconsistent with that requirement that a party who was preparing to oppose an application in April 2024 should be permitted to continue to gather evidence in opposition to the application (in the context of an appeal) in October 2024. It was submitted that any new evidence should not, as a matter of principle, be permitted to be introduced, regardless as to its significance. Thirdly, it was submitted that the documentation the appellant sought to have admitted failed to satisfy the test for the admission of new evidence on appeal laid down in Murphy v. Minister for Defence [1991] 2 I.R. 161. It was submitted that most, if not all of the documents, could have been obtained in advance of the hearing in the High Court, and that some of them were submitted in support of an argument that was not made in the High Court. Others, it was said, were not credible, and it could not be said that any of the documentation would have had an important influence on the outcome of the application. The respondent also relied upon the Supreme Court

decision in Murphy v. Gilligan [2014] IESC 43 and submitted that to admit any of the evidence the appellant sought to have admitted would be, in the words of Clarke J. (as he then was), a “recipe for procedural chaos”.

50. In reply to these objections, the appellant submitted that at the time of delivery of the High Court judgment, W’s condition was stable, but that he has since become very distressed at the prospect of being returned to Ukraine. This, the appellant claimed, is addressed by the reports of the psychiatrist and the neurologist she sought to adduce. She submitted that the correspondence from W’s grandmother is relevant because it reflects on W’s relationship with the respondent. The documentation regarding W’s attendance in school is submitted to show that he is settled in Ireland. So far as the documentation regarding the impact of the war is concerned, the appellant submitted that she had trusted her lawyers to obtain it for the purposes of the High Court proceedings. She submitted that it is of assistance in confirming general knowledge about the impact of the war. The appellant finally submitted that if the new evidence was not admitted, her right to a fair hearing in this appeal would be vitiated. She had prepared to conduct the appeal on the understanding she would be permitted to rely on the documents that she now sought to have admitted.

51. The Court rose to consider the parties’ submissions. Having done so it refused the application to admit new evidence on the basis of the arguments the respondent had advanced, as summarised above. The Court thus directed that the appeal should proceed on the basis of the evidence before the High Court. The Court noted that since the respondent had not objected to the admission of certain documents, being those labelled 4.2 - 4.11, the appellant could rely upon them. These documents relate principally to W’s education in Poland and in Ireland since his departure from Ukraine.

52. Having delivered its ruling, the appellant asked the Court to adjourn the hearing of the appeal because she claimed she had prepared for the hearing on the basis that she would be permitted to use the new evidence she had sought to introduce. Having regard to the appellant’s submissions, and the amount of time required to hear her application, the Court adjourned the hearing for one week, to 22nd January 2025.

53. At the resumed hearing, the appellant sought a further adjournment on the grounds that she needed to obtain legal representation. Previously, her application to the Legal Aid Board for representation in the appeal had been declined. The Court was then informed that the appellant had not pursued her entitlement to have the Legal Aid Board’s decision reviewed, she not having understood that she had that entitlement. She also informed the Court that she did not now feel that she could adequately represent herself in the appeal and that even if she did not obtain legal aid, she would do her best to obtain legal assistance privately. She explained that she had recently contacted solicitors in the hope of obtaining such representation.

54. Although the respondent objected to any further adjournment of the hearing, the Court, exceptionally, acceded to the application in the hope that the appellant might succeed in procuring legal assistance which the Court considered would better serve the interests of justice and assist in the smooth conduct of the appeal. The Court therefore adjourned the matter further for hearing on 5th March 2025 for that purpose. The appellant was unfortunately unsuccessful in her endeavours in that regard. The appeal nonetheless proceeded on that date.

Further Information regarding War in Ukraine

55. In advance of the hearing on 5th March, the Court became concerned that it had available to it very little information regarding the impact of the war in the area where W would most likely reside, if returned. Furthermore, such information as the Court had was considerably out of date. The Court therefore requested the parties to file affidavits to identify, to the extent that it is known, whether there had been, within the previous six months, any attacks causing damage to buildings or causing injury to inhabitants in the town/village where W would reside, if returned. The Court asked that any information provided should be drawn, if possible, from official sources, but if necessary, from media sources also.

56. Arising out of this request, the appellant swore an affidavit of 26th February 2025. For logistical reasons, and with the permission of the Court, the respondent’s solicitor swore an affidavit on the instructions of the respondent also on 26th February 2025. The latter affidavit was verified by the respondent in a verifying affidavit also sworn 26th February 2025 in Ukraine.

Affidavit of Appellant regarding Impact of War

57. The appellant obtained and exhibited documentation from the Department of Municipal Security of the Executive Body of the Kyiv City Council, and the Department of Civil Defence and Defence Work of Kyiv Regional Military Administration. By reference to these documents, the appellant avers that, between 15th August 2024 and 14th February 2025, there have been 440 air raid activations i.e., almost three every day. In the period between 1st September 2024 and 24th February 2025, in the city of Kyiv, seven people have been killed and 55 have been injured. 160 apartment buildings, 91 utility buildings, 20 private houses, 19 educational institutions and eleven industrial facilities have been damaged. In the greater Kyiv region, a further six persons are recorded as having been killed and 19 injured, and a further 1,123 “damaged objects”, comprising private homes utility buildings, apartment buildings and industrial and agricultural facilities have been damaged.

58. The appellant also exhibited documentation obtained from the Service for Children’s Affairs of the Kyiv Regional State Administration, by reference to which she avers that: - “By decisions of the Executive Committees on Explosion, Settlement, Traditional RALs of the Kyiv region, 17,115 statuses of children who suffered as a result of military actions and armed influences were granted. This status is applied only in cases where the child survived shelling, destroyed housing, or was employed, faced physical or psychological trauma.” On enquiry from the Court during the course of the hearing, the reference to 17,115 “statuses of children” was explained as meaning that the children concerned have been officially recognised as having been affected by the impacts of the war.

59. The appellant avers that W lived with her in Kyiv prior to leaving Ukraine and that it is apparent from the data obtained that he will face grave risk if he is returned to live there. Furthermore, the appellant avers that the number of air raid alarms, coupled with the necessity to spend long periods of time as a result of those alarms in bomb shelters and basements results in children living in constant fear. In the case of W, this fear is particularly real having regard to the experience he had prior to leaving Ukraine of living in the basement of the respondent’s apartment building.

60. The appellant exhibited a document which indicates an attack on 22nd February 2025 in the Boryspil District (in which district the respondent’s village is located), in which one person was killed and warehouses, administrative buildings, an educational institution, a kindergarten, three apartments and a multistorey building and three stores were damaged.

Affidavit Sworn on behalf of the Respondent regarding Impact of War

61. In her affidavit, sworn on the instructions of the respondent, Ms. Hartas avers that the respondent lives in a named village, located in the Boryspil District, Kyiv region, Ukraine. The respondent says that his village has not suffered any damage as a result of the war. The respondent obtained a letter (exhibited by Ms. Hartas) from the Executive Committee of the Zolochiv Village Council of the Boryspil District (of the Kyiv Region, to which the respondent’s village belongs), for information on the security in the village, and this letter confirms that there has been no damage, destruction or injuries recorded in the respondent’s village.

62. The respondent also obtained a letter from a Government Ministry to demonstrate that the Boryspil District does not appear in an official document prepared by the Government Department which identifies territories affected by the war on a graded basis.

63. The respondent provides general information regarding the city of Kyiv. At the moment, according to the respondent, Kyiv has a population of over four million people of whom over 600,000 are internally displaced. It is averred that cultural events, i.e. theatres, cinemas, concerts, fairs etc. are held, sports complexes and swimming pools are operating, cafés, bookstores and various other leisure facilities are also operating. The justice system continues to operate, and 950 educational institutions opened their doors to students in this academic year. Included in this is the school attended by W since 2021. All educational institutions have shelters to provide safe conditions. The respondent avers that since providing the High Court with undertakings, he has made arrangements for W to attend, if necessary upon his return to Ukraine, a psychotherapist and clinical psychologist in order to address W’s anxieties.

64. The respondent also says that the precise area in the city of Kyiv where W resided with the appellant prior to departure from Ukraine has not been affected by attacks upon the city.

Submissions

65. The appellant submits that she lawfully removed W from the jurisdiction in the interest of his safety, and with the consent of the respondent. She submits that the High Court judge erred in finding that the consent given by the respondent was limited to a period of two months, and that nowhere in any of the documentation relied upon by the respondent is there anything to indicate that the consent given was so limited.

66. The appellant submits that the judge incorrectly relied upon screenshots of texts exhibited by the respondent and that in doing so the judge fell into error by affording evidential status to those messages.

67. The appellant submits that the judge erred in failing to take account of the views of the child who has clearly expressed his own wishes to remain here in Ireland, and not to return to Ukraine. The appellant submits that the High Court judge failed to take into account that W informed the assessor that he would not feel safe returning to Ukraine and that he had very bad memories from the early days of the war, prior to his departure. The appellant claims that W’s interview with the assessor was completely ignored by the High Court judge. As a result, she claims, the voice of the child was not heard during the proceedings in the High Court.

68. The appellant further claims that the High Court judge erred in failing to conclude that W is not settled here. She submits that the evidence demonstrates that W is settled here: he is “fully socialised” in Ireland, is well integrated in school, has friends and plays chess and football. While it is the case that the appellant and W have moved since they came to Ireland, this is something over which they had no control.

69. The appellant submits that to return W to Ukraine now would be to expose him to grave harm within the meaning of the Convention. She submits that this is demonstrated by the information that she has provided on affidavit regarding the impact of the war on the Kyiv region, and further that to return W to Ukraine now would expose him to a grave risk of both physical and psychological harm.

70. In the course of her submissions, the appellant made plain her intention to remain here with W, her plan being to complete a course in legal administration, while W’s current intentions are to become a chef.

Submissions of the Respondent

71. Counsel for the respondent opened the appeal by reminding the court of the standard of review applicable in appeals from orders made by the High Court in Hague Convention applications. Counsel referred to the decision of Murray J., sitting in this Court, in A.K. v. U.S. [2022] IECA 65. In A.K. v. U.S., Murray J., at para. 47, referred to the judgment of Humphreys J. sitting in this Court in Minogue v. Clare County Council [2021] IECA 98, in which Humphreys J. discussed the different standards of review applicable depending upon the categories of finding under review. The analysis of Murray J. is to be found at paras. 48-

53 of his judgment.

72. He noted that at one end of the spectrum lie cases in which the appellate courts simply form their own view as to the matter in issue untrammelled by any finding reached by the trial court. That is the standard applicable to findings of pure law.

73. At the other end of the spectrum lie findings with which the appellate court will interfere only in very limited circumstances. This is the approach to be adopted where the High Court judge makes findings of primary fact based on his or her appraisal of conflicting oral evidence and/or where inferences are drawn by the judge that depend upon such findings.

74. The third category of finding is an intermediate one, in which the appellate court is required to address errors allegedly made by a trial judge in (a) findings based on documentary evidence alone or (b) where the court is reviewing “secondary findings of fact that are not dependent on oral evidence such as inferences from admitted facts or those proven otherwise than by way of oral testimony” (per Humphreys J. in Minogue v. Clare County Council at para. 100).

75. Counsel for the respondent submitted that this appeal falls into the intermediate category. In this category, Murray J. observed, the standard of appellate review is “somewhat deferential”, and the appellant bears the burden of demonstrating that the trial judge was incorrect in relation to the findings of fact which underpinned the decision so that “the appellant must establish an error in those findings that is such as to render the decision untenable” (per Charleton J. in Ryanair Limited v. Billigfluege.de GmbH [2015] IESC 11).

76. Having conducted that analysis, Murray J. then concluded as follows, at para. 53: - “It follows that in cases to which this standard applies the appellate court is free to correct errors of fact as well as of law, and mistaken inference as well as erroneous application of principle. It is thus not necessary for the appellant to establish that a judge has erred in law or in principle, the appellate court is not concerned to establish that the decision of the trial judge was not one that was reasonably open to him or her, nor will the appellate court be necessarily constrained to affirm a finding which is supported by credible evidence (although obviously where a judge has so erred or there is no credible evidence to support the finding the appellate court will interfere). Instead, the appellate court affords limited deference to the decision of the trial court by beginning its analysis from the firm assumption that the trial judge was correct in the findings or inferences he or she has drawn, and interfering with those conclusions only where it is satisfied that the judge has clearly erred in the findings made or inferences drawn in a material respect. This, I should observe, reflects the standard of review referred to by Finlay Geoghegan J. in D.E v. E.B. [2015] IECA

104 at paras. 39 and 40, while taking account of the decision in Ryanair Ltd. v. Billigfluege.de GmbH to which she also referred. It is, in particular, the standard to be applied where the issue is whether the combination of a set of primary facts that are either agreed or deduced from affidavit or documentary evidence result in the

conclusion that the child is or is not habitually resident in a particular place.”

77. Counsel for the respondent then proceeded to address the issues arising out of the amended notice of appeal, starting with the appellant’s claim that the High Court judge erred in finding that the respondent had not consented to the removal of W from Ukraine until the end of the war, and had consented to his removal for a period of two months only.

78. The respondent submitted that the onus is on the parent removing the child to satisfy the court that the other parent had consented to such removal. In this case, the most that the appellant can prove is that the respondent consented to the removal of W for a period of two months. There is no evidence that the respondent consented to any longer a period, and such evidence as there is suggests that his consent was in fact limited to two months.

79. The respondent submitted that, in arriving at her conclusion, the High Court judge took into account text messages exchanged between the respondent and Maria and also text messages exchanged between the appellant and Maria, which the High Court judge concluded clearly show that the original intention was that the trip to Poland would be for a period of two months only. While the appellant has objected to any reliance being placed upon screenshots of text messages, the respondent submitted that both parties have relied to some extent on evidence of this kind.

80. The respondent submitted that the trial judge conducted a careful analysis of the evidence and made findings of fact consistent with that evidence. Furthermore, the respondent says, where the findings of fact were based on inferences, the inferences drawn were open to the High Court judge and were reasonably drawn based on the evidence. The respondent submits that the appellant has not pointed to any error in the analysis of the High Court judge of the facts or the applicable legal principles, let alone any errors that would render her decision in this regard untenable.

81. Moreover, the respondent submitted that the appellant’s position appears to have changed in a fundamental way since the hearing in the High Court. The respondent draws attention to the following statement in the amended notice of appeal: - “The initial consent for temporary stay abroad was based on the assumption that the crisis would be short-term, but due to the continuation of hostilities and the threat to security, it became impossible to return. The move from Poland to Ireland was necessary to provide the child with adequate conditions of security and stability, which could not be provided in Poland due to the heavy burden on the social security and educational institutions. The child’s relocation and temporary stay in Ireland was therefore dictated solely by concern for his or her safety.”

82. The respondent submits that, in this passage of her amended notice of appeal, the appellant acknowledges that the original departure was intended to be of a short-term nature.

83. Furthermore, notwithstanding the appellant’s protests that she did not conceal the whereabouts of W from the respondent, in para. 12 of her amended notice of appeal she states that: - “The decision not to disclose the child’s exact location was dictated solely by considerations of his safety and not by any intention to prevent the Applicant from maintaining contact with the child. … The assertion that the Respondent ‘concealed’ the child is untrue, since the Applicant knew the child’s whereabouts in general (abroad in Europe) and had access to communication with him.”

84. In relation to the appellant’s argument that the respondent delayed in moving this application, and that W has settled, the respondent relies upon the High Court’s finding that the appellant engaged in subterfuge in declining to inform the respondent of W’s precise whereabouts. This finding is supported by the statement in the appellant’s amended notice of appeal referred to above i.e., “the decision not to disclose the child’s exact location…”.

85. The respondent submits that the conclusion of the High Court judge that the respondent had engaged in subterfuge and that her failure to disclose W’s location to the respondent was the cause of the delay in his bringing the application for W’s return is correct and was one that was open to the High Court judge based on the evidence.

86. Furthermore, the conclusions of the judge as regards the defence of settlement was also arrived at after the application of the correct legal principles to the facts of the case. Even if this court were to review the conclusion of the High Court judge, the respondent submits that, in his interview with the assessor, W spoke at length about Ukraine and that he named no friends in Ireland and did not mention football or chess during the course of the assessment.

87. Furthermore, W has had at least three moves in Ireland which would support the judge’s conclusion that W has not settled.

88. The respondent submits that the appellant is plainly wrong in submitting that the High Court judge took no account of the views of the child. The judge did so expressly and also expressed her opinion that W was sufficiently mature and that she should consider his views.

89. However, the judge considered, for the reasons already mentioned, that the outcome of the proceedings should not in this case be determined by the views of the child. The respondent says that the appellant appears to argue that the views of the child are determinative, but this is not the law and in this regard the High Court judge conducted a detailed analysis of the applicable law, and correctly applied the three stage test and correctly engaged in a balancing exercise as between W’s expressed wishes and his best interests having regard to the totality of the evidence and the objectives of the Convention, in particular the entitlement of a child to have a meaningful relationship with both parents.

90. The respondent submits that the High Court judge correctly considered the nature of W’s objections and the basis for same and found that W’s view that his father’s village was at risk and that there were bombings and an invasion of the village were unsupported by any factual evidence. The respondent submits that the balancing exercise conducted by the judge had regard to W’s wishes, all of the facts of the case and the policies of the Convention. It cannot be said that the judge did not have adequate regard to W’s circumstances, objections or views.

91. The respondent submits that the judge was correct to determine that this was a child who had lived for over two years with his mother, his mother had concealed their whereabouts and had informed W that people she knew had died in Ukraine. The respondent says that the judge was also entitled to conclude that W’s wishes were based on an incorrect belief that there was no defence system in his father’s village. On this basis, and having regard to the child’s right to have a meaningful relationship with both parents, the judge correctly decided to exercise her discretion in favour of granting an order to return W to Ukraine, subject to undertakings given by the respondent.

92. Finally, the respondent submits that the appellant did not raise the defence of grave risk in her affidavit in response to the application. It is submitted that this was raised for the first time in her submissions to the High Court.

93. The respondent submits that the High Court judge considered and applied correctly the relevant authorities which establish that grave risk must be supported by the evidence and must be specific to the circumstances of the child whose return is sought.

94. The respondent relies upon the decision of the High Court in I.F. v. J.G. [2023] IEHC 495, a case in which the city in which the applicant resided had been bombed several times, and a commercial centre had been hit by a missile shortly before the hearing of the action. Nonetheless, the court ordered the return of the child. That decision, it was submitted, was consistent with the approach of the English courts as articulated in Q. v. R. [2022] EWHC 2961 (Fam) in which Williams J. held, at para 54: - “It seems to me one has to avoid generalities, and in so far as is possible evaluate the particular risk to the particular child in a return to a particular area, rather than to apply a general or broad brush; one must apply a rather more detailed and finer brush to this. Of course, if it were suggested that E were to return to Izyum or one of the other areas which has just been liberated, or which may soon be more directly in an area of active war, [that] would plainly bring with it a grave risk of harm. However, when a return is to somewhere quite different, that requires a different consideration.”

95. The respondent says that the dicta of Williams J. in Q. v. R. has been applied in a number of subsequent decisions, which have resulted in different outcomes. In Re N. (A Child) (Ukraine: Article 13(b)) [2024] EWHC 871 (Fam) the court held that a grave risk had been established where a return was sought of a child to a town in the Kyiv region which hosted a military unit and a civil facility which may have been of interest to the Russian Armed Forces. The military unit and the town had in fact been hit by Russian missiles in July and November 2022, resulting in casualties. In those circumstances, the court proposed to refuse an order for return unless the father gave undertakings to relocate to a safer part of Ukraine. Such undertakings were provided and the return order was made.

96. In M. v. F. [2024] EWHC 1689 (Fam), in a judgment dated 1st July 2024, Hayden J. ordered the return of the child to Ukraine in circumstances where it was held that a grave risk in the child returning to Kyiv had not been made out. Hayden J. approved of the reasoning of Gearty J. in I.F. v J.G., that the court must place trust in the courts and facilities in Ukraine when considering whether a pragmatic solution may be available to address concerns. Hayden J. stated: - “I am satisfied that the evidence establishes that Kyiv remains a functioning city… whilst the expert evidence buttresses this, it is established primarily on the evidence of the parents. There may be blackouts, periods when children must be educated in shelters and delays in gaining access to the court may be longer that the US State Department Annual Report 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 that the Court should regard itself in a position to do so. I do not consider that this generalised evidence achieves ‘the high evidential threshold required’… . 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.”

97. The respondent submits that the evidence demonstrates that the village in which the respondent lives has not been subject to any attacks. Even so, the respondent has made contingency plans and given undertakings to the Court, including undertakings to address the fears of W which are grounded upon untrue information.

98. The respondent also asserts that this Court should not automatically assume that, if returned, W will be returning to war, having regard to the possibility of an end to hostilities by reason of developments on the political stage.

Discussion and Decision

Standard of Review

99. I mentioned at the outset of this judgment that the High Court judge began her judgment by reminding herself of the animating principles of the Hague Convention. In particular, the High Court judge recalled, amongst other things, that the Convention was created to provide fast redress when children are moved across state borders without the consent of both parents and to mitigate the damage sustained to a child's relationship with the “left-behind parent” by returning the child home. The judge also noted that the Convention requires that signatory states trust other signatories in terms of the operation of the rule of law in their respective nations.

100. I agree with the submissions of the respondent regarding the standard of review to be applied by this Court to the judgment of the High Court. Unsurprisingly, being both a nonnational and a litigant in person, the appellant could not be expected to be familiar with these principles, and made no submissions under this heading, but in any case the relevant principles are now well established and are uncontentious, and are summarised in the extract from the judgment of Murray J. in A.K. v. U.S. at para. 75 above and in particular in the following passage: - “Instead, the appellate court affords limited deference to the decision of the trial court by beginning its analysis from the firm assumption that the trial judge was correct in the findings or inferences he or she has drawn, and interfering with those conclusions only where it is satisfied that the judge has clearly erred in the findings made or inferences drawn in a material respect.”

101. So, therefore, even though the deference afforded to the findings of the trial court is limited, the starting point is an assumption that the findings made and the inferences drawn by the High Court judge are correct.

Consent to Removal

102. The conflict between the parties in this issue may be simply stated. The appellant contends that the respondent consented to the removal of W from the jurisdiction for the duration of the war, however long that might be, while the respondent says that he agreed that W could be taken to Poland for a period of two months only. The burden of proof rests with the appellant to establish, on the balance of probabilities, that her version of these events is to be preferred. While the appellant submitted, repeatedly, that the respondent had failed to demonstrate that he had limited his consent to two months, the appellant herself has failed to produce anything at all that would prove, on the balance of probabilities, or lead to a reasonable inference that the respondent consented to the removal of W for the duration of the war.

103. The respondent, on the other hand, produced text messages exchanged between both the respondent and Maria and between Maria and the appellant that show, as the High Court judge found, that the original intention was a trip for a finite period and that the appellant was expected to return to Ukraine with W.

104. While the appellant objected to the introduction of text messages, and in particular screen shots taken by the respondent, the High Court judge was circumspect about the weight that she attributed to the text messages and scrutinised them very carefully. She placed particular weight upon the fact that in her responses to the respondent, Maria freely added detail to questions put by the respondent. Moreover, she noted, Maria would have had no reason to mislead. The judge in particular placed emphasis upon original text messages exchanged between the appellant and Maria, which Maria had forwarded to the respondent. She noted that these messages show clearly that the original intention was that the trip should be of a duration of two months.

105. The judge also observed that the appellant repeatedly avoided answering any queries from both the respondent and Maria as to her whereabouts. The judge referred to specific text messages and highlights extracts from the same. The conclusions drawn by the High Court judge from the text messages are, in my judgment, conclusions that were reasonably open to her and in the course of this appeal, the appellant made no attempt to critique the judge’s consideration of these text messages or to suggest that any alternative interpretation was reasonably open to the judge. For this reason alone, it is unnecessary to consider any of the individual text messages in this judgment, but it is also unnecessary to do so in light of the very clear statement made by the appellant in her amended notice of appeal that: - “The initial consent for temporary stay abroad was based on the assumption that the crisis would be short-term, but due to the continuation of hostilities and the threat to security, it became impossible to return. The move from Poland to Ireland was necessary to provide the child with adequate conditions of security and stability, which could be not be provided in Poland due to the heavy burden on the social security and educational institutions.”

106. This statement of the appellant herself could not make it clearer that the consent given by the respondent was not an open-ended consent for the duration of the war, but was for a short-term only. Moreover, in saying that it became impossible to return, and that the move from Poland to Ireland was necessary, the appellant does not even pretend that she obtained the consent of the respondent. This passage of her amended notice of appeal makes it abundantly clear that the appellant acted unilaterally in keeping W outside of the jurisdiction after what was originally intended to be a short period, and that she then took W to Ireland without the consent of the respondent.

107. It follows from the above that all grounds of appeal that are related to the conclusion of the High Court judge that the respondent did not consent to W’s removal from Ukraine for a period of anything longer than two months should be dismissed.

Delay and Settlement

108. This objection to return is rooted in article 12 of the Convention, which provides: - “Where a child has been wrongly removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child”.

109. At the outset of her consideration of this issue, the High Court judge noted that while a summary return is mandatory if the application for return is made within twelve months, even if an application is made over a year after the wrongful removal or detention the child should nevertheless be returned unless it is demonstrated that the child is now settled in his new environment.

110. In considering the issue of settlement, the High Court judge had regard to her finding that the appellant had engaged in subterfuge in refusing to disclose her whereabouts, and the whereabouts of W, to the respondent. The appellant takes issue with the finding of the High Court judge that she, the appellant, engaged in subterfuge, but there cannot be the slightest doubt that that finding was one that was open to the High Court judge having regard to the contents of all of the communications made available to her. In her amended notice of appeal, the appellant actually admits to not disclosing W’s location, as follows: - “The decision not to disclose the child’s exact location was dictated solely by considerations of his safety and not by any intention to prevent the Applicant from maintaining contact with the child. … The assertion that the Respondent ‘concealed’ the child is untrue, since the Applicant knew about the child’s whereabouts in general (abroad in Europe) and had access to communication with him.” This passage can only be interpreted as an admission that the appellant deliberately did not inform the respondent of W’s whereabouts.

111. In the same breath, the appellant is critical of the respondent for failing to make the return application within a period of 12 months from the time of W’s departure from Ukraine with the appellant. The appellant has legal training and clearly understands the principles underpinning the Convention and it is difficult to believe that she does not understand that it was not possible for the respondent to make an application for the return of W until he knew the child’s location. Moreover, the appellant did not address at all her failure to comply with her obligation under Ukrainian law to register W as resident in Ireland. In failing to do so, she very deliberately added to the respondent’s difficulties in establishing whereabouts of W.

112. In any case, it is apparent that the High Court judge had an abundance of material upon which to base her conclusion that the appellant had engaged in subterfuge, and this

conclusion is affirmed by the appellant’s own amended notice of appeal. This is a factor to be taken into account in considering the defence of settlement.

113. Of course, that is not an end to the matter, it simply provides a context in which the defence of settlement must be considered. In this regard, the High Court judge referred to the decision of Denham J. (as she then was), in the Supreme Court, in P.L. v. E.C. [2008] IESC 19, [2008] 1 I.R. 1 in which she in turn cited the judgment of the Court of Appeal of England and Wales in Cannon v. Cannon [2004] EWCA Civ 1330, [2005] 1 W.L.R. wherein Thorpe L.J. observed: - “A broad and purposive construction of what amounts to ‘settled in his new environment’ will properly reflect the facts of each case, including the very important factor of concealment or subterfuge that has caused or contributed to the asserted delay. There are two factors that I wish to emphasise. One relates to the nature of the concealment. The other relates to the impact of concealment on settlement.”

114. Before considering the impact of concealment on settlement however, it is necessary to consider whether or not settlement within the meaning of the Convention has occurred at all. The High Court judge noted that the evidence addressing the issue of settlement was sparse. In fact it is drawn almost entirely from the interview of W with the assessor. The judge noted that: - “While the child has been living in Ireland for well over a year, he does not refer to one friend by name, nor was the Court given any detail of activities and engagement with his community which indicate that the family is in fact settled. There is no other family member here.”

115. In interview with the assessor, it is clear that W expressed himself as being happy here in Ireland, that he is enjoying school here and that he is working really hard to learn English. However, in her amended notice of appeal, filed on 15th November 2024, the appellant states: “Despite the child’s lack of full social integration in Ireland at the moment, he is in a stable educational environment, which indicates that he has adapted to the new living conditions.” I am sure that is indeed correct and it is supported by documentation exhibited by the appellant from his school. However, this falls considerably short of establishing settlement in the context of article 12 of the Convention. In fact the candid reference to “the child’s lack of full social integration” is clear support for the conclusion of the High Court judge on this issue. Even without such an acknowledgment, I find it impossible to disagree with the

conclusion of the High Court judge that “There is no strong evidence of settlement in terms of emotional connection with people and place.” Moreover, it is also the case, as the High Court judge found, that at all times W was aware that his father was seeking his location or seeking his return.

116. Taking all of these factors into account – subterfuge, absence of any evidence of emotional connection with people and place, and the fact that W always knew that his father was looking for him, and also having regard to the appellant’s own reference to “the child’s lack of full social integration” in her amended notice of appeal (which is supportive of the

conclusion of the High Court judge), I can see no error in the conclusion of the High Court judge that W has not settled in Ireland for the purposes of article 12 of the Convention. I therefore reject any grounds of appeal associated with this line of defence to the application.

The Views of the Child: W’s Objection

117. In the course of her oral submissions to this Court, the appellant submitted that the views of W, as expressed to the assessor, were not taken into account by the High Court judge. She went so far as to say that the interview with the assessor was completely ignored by the judge. This is plainly not the case, as is apparent from the summary of this part of the judgment of the High Court set out at paras. 33-37 above. The appellant is clearly of the view that the fact that W has objected to return, and that his objection is grounded upon his fears for his safety because of the ongoing conflict in Ukraine is sufficient to refuse to order W’s return to Ukraine. However, those views do not reflect the law on these issues.

118. Firstly, so far as the wishes of the child are concerned, it is well established, as the High Court judge held, that, while article 13 of the Convention requires the court to take account of the views of the child, it does not vest the decision-making power in the child. The second and third limbs of the three-stage test posited by Potter P. require the court to consider the weight to be given to the objection made by the child, having regard to the maturity of the child, and then to consider if the objection is sufficient to outweigh the counterbalancing objectives of the Convention.

119. In this case, as the High Court judge observed, W has clearly objected to being returned to Ukraine. Furthermore, the judge held that W is sufficiently mature for her to consider his views. She then proceeded to do just that, discussing in some detail the nature of W’s objection. The judge found that his only objection to return is based on his personal safety, and while anybody would sympathise with W’s concerns, they have not been formed on a sound factual basis.

120. This conclusion of the High Court judge has been borne out by the additional evidence provided at the request of the Court before the hearing of this appeal, and by the evidence of the respondent in particular. W is under the impression that the area where the respondent lives is subject to frequent rocket attacks and has no air defences. Both fears are unfounded. The village where the respondent resides has not been subject to any attacks at all and it has air defences. More broadly, W is under the impression that thousands of people are “murdered every day” in Ukraine, and even within the context of the broader conflict that is not correct. Furthermore, as the High Court judge pointed out, Ukraine is a very large country, some parts of which have not suffered as grievously as others in the conflict. So, therefore, the factual basis upon which W has formed his views is not just inaccurate, it is wrong, and it is deeply regrettable that, as a result of having received this false information, W is now fearful of returning to Ukraine.

121. The High Court judge, having concluded that W’s views had not been formed on a sound factual basis, then proceeded to consider, what she described as “W’s poorly substantiated view” (and needless to say the fact that it is poorly substantiated is no fault of W’s) in light of the objectives of the Convention. The judge concluded that such a fear could not outweigh the Convention imperative to return a child to his home. I cannot fault the reasoning of the High Court judge in this regard. It could not be the case that the objective of the Convention of deterring wrongful abduction so as to afford children the opportunity to have a relationship with both parents, would be defeated by an objection of the child that is based upon false factual premises that most likely owe their origin to the abductor.

122. In the course of dealing with this issue, the judge also observed: - “Deterrence of child abduction, comity and trust in respect of other signatory states are the animating features of the Convention. While sympathetic to W’s position, his father can provide undertakings to reassure the Court, the Respondent [i.e. the appellant] and to W himself that he will be moved if there is any threat to him. The undertakings may include arrangements for appropriate counselling or medical help for the child in managing his fears.”

As already mentioned, the respondent provided such undertakings at the conclusion of the hearing in the High Court.

123. The trial judge noted that the views of W overlap with the grave risk defence which she also noted was grounded, almost entirely, on W’s statements of fear coupled with the assertion that there is no air defence in the area. The judge then proceeded to address the grave risk defence.

124. In my view it is clear that the High Court judge had regard to the well-established legal principles relating to the treatment of objections made by a child to return, and then proceeded to give detailed consideration to the views expressed by W and did so on the basis that he is sufficiently mature that account should be taken of his views. Her conclusion that W’s objections to return are based on incorrect information are substantiated by the evidence available not just to the High Court judge, but also the additional information made available to this Court. Subject to consideration of the grave risk defence, I am of the view that the treatment of W’s views by the High Court judge is unimpeachable.

Grave Risk Defence

125. Article 13(b) of the Convention provides, in material part: - “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

a) …

b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

126. In the seminal and oft cited case of Friedrich v. Friedrich (1996) 78F 3d 1060 (6th Cir 1996) the United States Court of Appeal (Sixth Circuit) stated as follows regarding the meaning of “grave risk”: - “…we believe that a grave risk of harm for the purposes of the Convention can exist in only two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute, e.g. returning the child to a zone of war, famine or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the Court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.”

127. This approach to the interpretation and application of article 13(b) of the Convention has been widely accepted by many signatories to the Convention, including in this jurisdiction. In keeping with the overall objectives of all the Convention, it is fair to say that the approach taken by the courts to the article 13(b) defence, when raised, is a conservative one. As Maurice Collins J. observed, speaking in this Court, in C.T. v. P.S. [2021] IECA 132, at para. 52: - “There are a great many authorities, Irish and international, on Article 13(b). While expressed in slightly different terms from time to time, the authorities speak with one voice in emphasising the narrow scope of the ‘grave risk’ exception and the heavy burden involved in establishing such a risk.”

128. While it has been held that the exception to return provided for by article 13(b) must be restrictively applied if the objectives of the Convention are not to be defeated, it has also been observed that “A restrictive application of article 13 does not mean that it should never be applied at all” (see the judgment of Lady Hale In re D. [2006] UKHL 51, [2007] 1 AC 619).

129. In C.T. v. P.S., Collins J., referring to In re D., noted that: - “The judgment goes on to identify a number of significant characteristics of the Article 13(b) defence. First, the burden of proof clearly lies with the person or body opposing return (on the balance of probabilities). Second, the risk to the child must be ‘grave’. It is not enough that the risk be ‘real’, it must reach such a level of seriousness as to be characterised as ‘grave’. … While the threshold applied to the risk rather than the harm ‘there is in ordinary language a link between the two.’ Third, the words ‘physical or psychological harm’ gained colour from the words that follow in Article 13(b). As had been said In re D, “‘Intolerable’ is a strong word” and when applied to a child must mean a situation which a particular child in the particular circumstances should not be expected to tolerate.”

130. The dictum that “Although ‘grave’ characterises the risk rather than the harm, there is in ordinary language a link between the two” is actually taken from the joint judgment of Lady Hale and Lord Wilson in Re E: (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 A.C. 144. Importantly for present purposes, it is followed by the following sentence: “Thus a relatively low risk of death or really serious injury might properly be qualified as ‘grave’, while a higher level of risk might be required for other less serious forms of harm”. I will return to this issue presently.

131. As is apparent from the submissions made by the respondent, there have been a number of cases in which applications for return to Ukraine have been considered since the invasion of Ukraine by the Russian Federation in February 2022.

132. In I.F. v. J.G. [2023] IEHC 495, the application was for the return of a seven-year old child to a city which had been the subject of attacks during the war, but which was nonetheless a city to which tens of thousands of Ukrainians had relocated as a result of the war. There was very clear evidence that the child whose return was sought missed her family in Ukraine and that this was a continued source of distress for her. Counsel for the respondent in that application conceded that the risk to the child was from two sources: the effect on the child of being separated by reason of the war from her family, and the possibility of being directly affected by the war itself, if she were returned to Ukraine.

133. In analysing the risks to the child in question, Gearty J. observed that: “In order to prove grave risk, in a situation where there is an ongoing war, one must prove that there is a specific risk to this specific child.” She further observed that while there was a real risk facing the child from the war, a real risk does not equate to a grave risk. She noted that the risk faced by the child, if returned, would be the same risk faced by all citizens of Ukraine. In this context, the judge had regard to statistics available to her regarding the numbers of casualties of the war, in order to conduct an analysis as to the extent of the risk to the child in that case. She said: - “Ukraine is not a safe country at present but the test is whether a grave risk, rather than real risk, has been established. As the gravity of the risk relates to the risk, not the potential event, therefore the statistics must inform the conclusion as to the actual risk to this child. While there is a real risk for all civilians in Ukraine, and it is a risk up to and including a risk of death, there is insufficient evidence, statistically and for this child, of a grave risk that she will be physically harmed, still less that she will be killed, as a result of the war.” The judge also had regard to plans put in place by the applicant in that case in the event that the situation in the relevant city should deteriorate. In all of the circumstances, the judge concluded that in that case the respondent had not established a defence of grave risk. Furthermore, she concluded that the more serious risk for that child was one that she would become estranged from her father (the applicant in that case), her stepmother and siblings if she were to remain in Ireland.

134. In written submissions made to the High Court on behalf of the appellant in this case, counsel made the point that in I.F. v. J.G., the High Court judge took into account the views of the child, who wanted to return to Ukraine to be with her father and siblings, and that that is a significant distinguishing factor from the facts in this case.

135. Counsel for the appellant in the High Court relied on the English case of N.W. v. S.

W. [2023] EWHC 602 in which the High Court refused to make a return order in respect of two children to Kyiv, holding that “the real question is to ask what harm the children will face in the part of the country”. The judge was satisfied that there would be a grave risk of harm to the children in returning them to Kyiv, and also found that there were no protective measures that could effectively mitigate the obviously grave risk of return.

136. On the other hand, the respondent relies upon a number of English authorities in which return has been ordered, including Q. v. R. [2022] EWHC 2961 (Fam) and M. v. F. [2024] EWHC 1689 (Fam). In Q. v. R. the argument as to grave risk seems to have been made by way of general reliance on the war in Ukraine rather than any specific risk associated with where it was sought to have the child in question returned. It was in that context that Williams J. made the observations that he did in the passage cited above at para. 94 above to the effect that generalities are to be avoided.

137. In both in Re N. (A Child) (Ukraine: Article 13(b)) [2024] EWHC 871 (Fam) and [2024] EWHC 1282 (Fam), and in M. v. F. [2024] EWHC 1689 (Fam) the High Court of England and Wales ordered the return of children in reliance upon undertakings given by the applicants in each case. The undertaking in Re N. included an undertaking that the child would reside in a town in Western Ukraine that has been (in relative terms) unaffected by the war.

138. In M. v F., in a judgment delivered on 1st July last, Hayden J. ordered the return of a five-year old girl to Ukraine. The circumstances of this case were somewhat unusual, not least in the fact that, subsequent to the onset of the war, the child and her mother travelled back and forth from the United Kingdom to Kyiv, and the child lived in Kyiv for six weeks between January and February 2023 and again between October and December 2023. Furthermore, the court heard expert evidence from a professor of law in the University of Kyiv, to the effect that courts in Kyiv are operating as usual. Hayden J. concluded that the evidence establishes that Kyiv remains a functioning city. He found that this was established primarily on the evidence of the parents in the case, and that this was buttressed by the expert evidence. It appears that the applicant father in that case was particularly concerned about what he considered to be the likely escalation of the war in the summer of 2024, but Hayden

J. did not consider that the court should be drawn into a speculative and generalised examination as to the likely evolution of the war. Hayden J.’s conclusion was that Kyiv had, up to that point, “weathered the war effectively” and he did not consider that returning the child there would amount to a grave risk. He went so far as to say: “I do not consider that this generalised evidence achieves the ‘high threshold required’. I will go further and say that it does not come close to it.”

139. The evidence adduced in that case appears to have been quite limited. The judge noted that while there had been missile attacks on Kyiv, they had been infrequent and that the primary risk appeared to be shrapnel injuries from missiles shot down by Ukraine antiaircraft fire. The main concern that the applicant father had was not about what was actually happening, but what might happen over the summer months. The applicant sought to place reliance upon advice from the Foreign Office advising against travel to Ukraine, but the judge discounted that because such advice is intended to address UK citizens contemplating travel to Ukraine, who would not be well equipped to know what to do in the event of an attack, unlike Ukrainian citizens who have adjusted to these realities. Hayden J. also took into account that because of his wealth, the father was in a good position to protect the child and in a strong position to mitigate any risk to her in the event that the situation in Kyiv should start to deteriorate.

140. The judgments discussed above, and others relied upon by the parties, apply existing and well-known principles in relation to the grave risk defence to applications to return. To the extent that they shed some light on how the courts have, to date, considered the defence of grave risk in the specific context of the war in Ukraine, they are of some assistance, but inevitably that assistance is of limited value because the assessment and adjudication of these applications is highly fact specific. As Gearty J. observed in I.F. v. J.G.: “In order to prove grave risk, in a situation where there is an ongoing war, one must prove that there is a specific risk to this specific child.”

141. Needless to say, that requires an analysis of the conditions in the area to which the child will be returned, if the court so orders. In this regard, the information obtained by the parties and provided to the court since the decision in the High Court is of some assistance. Moreover, the parties do not really disagree as to the impact of the war in the area to date, but rather as to the inferences the Court should draw from the available information.

142. Although time has moved on since the application was originally made, it is not insignificant that the appellant herself did not raise the defence of grave risk in her replying affidavit. The closest she comes to objecting to the application to return on the grounds of risk is at para. 12 of her affidavit where she states: - “While hostilities have eased around the Kyiv region, the war is still ongoing. The Kyiv region is not near the frontline, but there are missile attacks in the Kyiv region and in other cities in Ukraine from time to time.”

143. This paragraph of her affidavit does not suggest that, at least at the time that she swore this affidavit (9th April 2024) that she considered that returning W to Ukraine, or, more specifically, Kyiv city or region, would constitute a risk of any significance to W, never mind a grave risk for the purposes of the Convention.

144. By the time the matter came around for hearing, the appellant did rely upon the grave risk defence, but offered the High Court no evidence to support it. Very correctly, however, the High Court judge saw fit to consider the defence in discharging its investigative function under the Convention.

145. In her consideration of the issue, the High Court judge noted that: “while many women and children have sought safety in neighbouring and in other European countries, most Ukrainian children remain, safely, at home in Ukraine.” The judge went on to say that no information had been provided describing the conditions prevailing in the place to which W would return (if the court so orders) and nor were any details of the current situation in that region or city provided. She said that a statement from a child to the effect that he believes himself to be a risk is insufficient to establish the defence.

146. I can find no fault with the approach taken by or the conclusion reached by the judge on this issue. Based on the very limited information available to her, she could not have reached any other conclusion. However, the evidence subsequently provided by the parties at the request of this Court facilitates a more in-depth analysis.

147. This information makes it clear that, to date, the village where the respondent resides has not been the subject of any attacks at all, and, while recognising the uncertainties of war, no reason has been given to believe that this will change. That being so, it is apparent that if W is returned, he may reside safely with his father, the applicant in these proceedings, and it is on that basis that he has made this application.

148. For her part, the appellant did not address at all where W would reside, if he returns to Ukraine. She did submit that W lived with her in Kyiv prior to leaving Ukraine and that it is apparent from the information provided at the request of this Court that he will face grave risk if he is returned to live there. She also submitted that the same information demonstrates that the Kyiv region as a whole, including where the respondent resides, is unsafe.

149. If the appellant had made the case that, if they returned to Ukraine, she and W would have to reside where they previously resided before the war, i.e. within the city of Kyiv, then it would have been necessary to consider, in light of the information provided, whether residing there now would amount to a grave risk to W. Since the appellant did not make out that case, that analysis is unnecessary. Moreover, had she done so, and succeeded in satisfying the Court that residing in Kyiv would result in a grave risk of harm to W, it would then have been necessary for the Court to consider if a return order should nonetheless be granted in circumstances where W can live safely with his father pending court orders as to custody in Ukraine.

150. In any event, since the appellant failed to address in any specific way the extent of any risk to W were he to return and reside with her in Ukraine, the appropriate approach for this Court to take is to assume that W will reside with the respondent, where it is safe, at least until such time as the courts in Ukraine have addressed and resolved the custody issues between the parties. On that basis, and having regard to the undertaking of the respondent which, it will be recalled includes an undertaking to move, should it be necessary to do so, with W to the West of Ukraine or to arrange for their departure to Poland, as well as an undertaking to ensure that W is afforded such therapy as is necessary to assuage his fears, I am satisfied that there is not a grave risk that the return of W to Ukraine will expose him to physical or psychological harm or otherwise place him in an intolerable situation within the meaning of article 13(b) of the Convention.

151. On the other hand, and not unlike the case of I.F. v. J.G., it is apparent that to decline to order the return of W to Ukraine would result in irreparable harm to the relationship between W and the respondent, which he himself, given his age, is unlikely to appreciate.

There can scarcely be any doubt that if W is not now returned, it is highly unlikely he will have the opportunity to develop any meaningful relationship with his father, in these most important years of his life. Son and father have been denied the opportunity to foster their relationship for almost three years through no fault of theirs. The single most animating objective of the Convention is the right of a child to have a relationship with both parents. This will almost certainly be lost to W unless he is returned.

152. It is apparent that none of the grounds of appeal have been made out and that all should be dismissed. I would therefore dismiss the appeal, and order that W be returned to Ukraine without further delay. In affirming the order of the High Court, I rely on the undertaking given by the respondent to the High Court, which will be drawn to the attention of the Central Authority in Ukraine so that the courts of Ukraine may have appropriate regard to the same in any proceedings before those courts.