The High Court has ruled that a young Ukrainian girl brought to Ireland by her mother following the outbreak of the war against Russian should be returned to her native country.
In a judgment, Ms Justice Mary Rose Gearty held that the girl, who is under 10 and referred to as Daryna by the court, which is not her real name, was wrongfully removed from her home country and without her father's permission.
The parties involved in the case cannot be identified for legal reasons. The girl's mother separated from Daryna's father several years ago.
Evidence was given to the court that the girl has expressed a desire to return to her father, with whom she had mainly resided with prior to Russia's invasion.
In her decision, the judge said the case centred around the fact that Ukraine is embroiled in war.
The judge said that while there was "a risk of serious harm" to the girl from the ongoing conflict with Russia, the evidence before the court did not show that there is "a grave risk of harm" if she is returned to her home city in Ukraine.
The court said that it took note of the dreadful situation in Ukraine, and it was accepted that all persons in that country are at risk from "an unpredictable aggressor".
The judge said Daryna's home, while strategically important, was not the subject of daily or weekly attacks.
There was no evidence before the court to say that if returned that there was a grave risk that the girl would be physically harmed or killed in her home area.
The judge said that the evidence suggested that Daryna's psychological health was at risk due to her removal from her home.
The girl was better served if she was returned home forthwith, the judge added.
Separation
Evidence was provided to the court, including interviews between the child and an assessor, which showed the girl had been deeply affected by the separation from her father and her half-siblings.
After a year in Ireland, the girl does not speak English, and despite the conflict wants to return home, the judge added.
Daryna told the assessor that she has no friends in Ireland but speaks to her friends in Ukraine online.
The assessor said Daryna has a deep bond with both her parents, and has a limited understanding of the war.
The court heard the girl's parents had split up shortly after she was born.
Under a co-custody agreement agreed before the Ukrainian courts following her parents' separation, the girl had mainly resided with her father, his wife, and her half-siblings. Daryna's mother had regular access to her under this agreement.
After the war began in February 2022, the mother claims she was entitled to take the child out of Ukraine under a resolution issued by the Ukrainian government allowing children to be taken out of their home country.
She claims she did not need the father's notarised consent to do this, and further claims the resolution permits her to retain the girl in Ireland.
The father disputes this and says that his former partner took the child without his consent, in breach of their separation agreement.
Hague Convention
The father asked the Irish Courts under The Hague Convention, the international agreement which governs alleged 'child abduction', for an order directing that his daughter to be returned to her country of habitual residence.
The mother opposed that application and argued that due to the danagers posed by the war, the child be allowed to remain with her in Ireland.
The court heard that a utility and a commercial area in the part of Ukraine where the child is from has been struck several times by Russian missiles and bombs.
In her decision, Ms Justice Gearty said an order that Daryna be retuned was required under the Convention, as it was in her best interests to be returned to her father, his wife, and her siblings.
The court agreed that Daryna's mother had no authority to remove her from Ukraine, and her removal was in breach of the father's custody rights.
The judge said there have been cases in other jurisdictions where the courts had directed the return to Ukraine of children who were among the many displaced persons who fled to other countries and parts of Ukraine following the invasion.
The judge, who considered expert evidence on Ukrainian law before giving her decision, said any other conclusion would enable the widespread abduction of Ukrainian children under the guise of crossing the border in an emergency.
The court was satisfied that this was not the purpose of the Ukrainian government's resolution following the invasion in early 2022.
The court also noted that Daryna's father has plans to move to somewhere safe, away from their home should the situation worsen.
The judge said that those plans should be shared with the court and the girl's mother.
