A High Court judge has ordered the return of a 10-year-old Ukrainian boy to his native country to live with his father despite hearing that the boy objected and that he was afraid of dying.
Ms Justice Mary Rose Gearty said the child's fear was not based on established facts, nor was there medical support to establish that this fear in itself might cause a grave risk to the child if returned.
She 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.
She said this issue was linked to the views of the child as he considered he would be at risk if returned. However, the judge said “there was insufficient evidence to substantiate his concerns”.
The judge referred to a key passage in the boy's objection which reads “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.”
The boy had left the Ukraine with his mother in May 2022 for two months in Poland but later travelled to Ireland. The judge said she was satisfied the boy was “wrongfully retained in May 2022" and his location was deliberately concealed from his father who remained in Ukraine. However, the boy's mother claimed that the move was for the duration of the war, which was an "indefinite" period, not for two months.
The judge said it was clear that the father never stopped asking for details of the location of the mother and son and repeatedly requested their return.
The judge was deciding on an application by the father to have the child returned to Ukraine.
Ms Justice Gearty said the evidence the child offered to support his conclusion that Ukraine is unsafe is that some people that his mum knows have been killed in the war.
She said she took his objections seriously and considered his views very carefully.
“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,” the judge said.
The judge also noted that while the child is feeling safe in this country, there is no sense from the evidence that he has settled here in the sense that he has made an emotional home here with friends and interests to compare to those left in the Ukraine.
There was also an added and serious factor that the child, whether logically or not, has formed the view that his father's village is at risk.
“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.
Nonetheless, the child's fears appear to be genuine even if they are not evidence-based,” the judge said. She said the father could provide undertakings to reassure the court that the child will be moved if there is any threat to him.
