A High Court judge has ordered the return of a 10-year-old boy to Ukraine, on the basis that there is no evidence that the child would be at “grave risk” if they return to their home country.
Ms Justice Mary Rose Gearty heard on Wednesday that the Ukrainian boy did not want to return to Ukraine from Ireland to live with his father.
She heard that the boy objected to returning, and that he was “afraid of dying.” However, she said that the child’s fear was not based on established facts, nor was there medical evidence to establish that this fear in itself might cause a grave risk to the child if returned.
She was deciding on an application by the father to have the child returned to Ukraine.
The judge ruled there was no evidence of any risk to the boy which would be sufficient to allow such a “grave risk” defence to supersede the urgent and important imperatives of the Hague Convention – namely the prevention of child abduction and the vindication of the child’s rights through relationship with both parents.
The court heard that the child had arrived in Ireland after leaving Ukraine with his mother in May 2022 and spending two months in Poland. However, the child’s father had not granted consent for the boy’s relocation.
The judge reached the ruling that she was satisfied the boy had been “wrongfully retained” in May 2022, and that his location was deliberately concealed from his father who remained in Ukraine. On the other hand, the child’s mother claimed that the move away from Ukraine was for the duration of the war, which would not just be for two months but an “indefinite” period of time.
Ms Justice Mary Rose Gearty said that the father had persistently asked for details of his child’s location, and had repeatedly requested that the mother and son return to Ukraine.
A letter detailing the boy’s objection to returning home read: “My father wants me to go back to Ukraine. I’m so scared of that, Thousands of people there are murdered every day. My father says it’s safe, but so many rockets fly into the region where he lives. Where my father lives there are no air defences. I’m afraid of dying.”
However, the judge ruled that with regard to this risk felt by the child, there was “insufficient evidence to substantiate his concerns.”
“There is no evidence of this in any of the affidavits, and on the contrary, there are averments as to the facts on the ground, which are that the father lives in a place in which there are alerts and bomb shelters but where there has not been an invasion nor is there any evidence of bombs or devices detonating or exploding in the area, let alone evidence of murders or anything of that nature,” Justice Gearty said.
“I take these objections seriously and have considered his view very carefully. His only objection to return is based on his personal safety,” the judge said.
“Anyone would sympathise with this view, but it does not appear, on the evidence before me, to be one that has been formed on a sound factual basis.
“While many women and children have sought safety in neighbouring countries, most Ukrainian children remain, safely, at home in Ukraine.
“It is insufficient to suggest that there is a grave risk of remaining in Ukraine at present 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. There is no such information in this case,” Ms Justice Gearty added.
She acknowledged that the child offered evidence to support his belief that Ukraine is unsafe, which was that some people that his mother knew had been killed in the war.
Ms Justice Gearty said the she had taken his objections seriously and considered his views very carefully. She added that his fears appeared to be genuine – even if not based on evidence.
“His only objection to return is based on his personal safety. Anyone would sympathise with this view, but it does not appear on the evidence before me to be one that has been formed on a sound factual basis,” she told the court.
She also noted that while the child felt safe in Ireland, the evidence provided to the court did not indicate that he had settled here or had made an “emotional home” in Ireland which would compare to the life, friends and interests he left in Ukraine.
She took into account the fact that the child, whether logically or not, believes that the village where his father lives is at risk.
She added that the child’s father could provide undertakings to reassure the court that the boy will be moved if any threat emerges.