Children Act applications amid conflict: The impact of the Ukraine war on Family Court decisions

Re Z and X (Visit to Ukraine) [2024] EWHC 314

Two Ukrainian parents had two children, Z aged 16 and X aged 11. The father helped the mother and the children to escape Ukraine following the Russian invasion, but he was forced to remain in Ukraine due to the martial law. The mother and the children settled in England in April 2022. The parents subsequently divorced, and the mother met a new partner in England. The father would have indirect contact with the children through video and phone calls.

The father applied under Article 21 of the Hague Convention 1980 for an order under s.8 Children Act 1989, for the children to travel to Ukraine to spend time with him during the Easter and Summer holidays.

In his application, the father proposed that the children fly into a neighbouring country and then travel to what he considered to be a safe part of the country. The father proposed that the mother should accompany the children and pay all of the expenses associated with the trip.

The mother successfully opposed this application, on the basis that the court found that it was not safe for the children to travel to Ukraine in any circumstances at the present time. The FDCO did not recommend travel to Ukraine unless it was essential, and the threat of war and conflict was a real concern for the court. The court was also concerned about the practicalities of the holiday and the financial implications for the mother.

The Judge highlighted that the court’s paramount consideration was the welfare of the children as set out in s.1(1) Children Act 1989. The children clearly had anxiety following the war as their former home had been destroyed and this increases the risk of emotional harm for the children.

The Judge sympathised with the father’s position because direct contact had not taken place since the children left Ukraine in 2022. It was highlighted that the father must be sad and frustrated, and that the courts have a positive obligation to promote contact, but indirect contact for the time being was the only appropriate solution.

It is important to recognise the harrowing effect of the Russo-Ukrainian War on families as this case portrays the poignant reality of war in the unusual setting of the Family Court. This case demonstrates that whilst the court should seek to promote direct contact between parents and their children where it is appropriate to do so, it was not in the children’s best interests to travel to Ukraine due to the threat of war.

Family lawyers are often presented with cases where direct contact is not taking place due to the hostility between the mother and father, but this case should open up our eyes to situations where Children Act applications are issued in more extreme circumstances.

This case allows the world to see a small glimpse of how the war has torn families apart, and how the English Family Courts are attempting to grapple with these serious issues.  

Two Ukrainian parents had two children, Z aged 16 and X aged 11. The father helped the mother and the children to escape Ukraine following the Russian invasion, but he was forced to remain in Ukraine due to the martial law. The mother and the children settled in England in April 2022. The parents subsequently divorced, and the mother met a new partner in England. The father would have indirect contact with the children through video and phone calls.

The father applied under Article 21 of the Hague Convention 1980 for an order under s.8 Children Act 1989, for the children to travel to Ukraine to spend time with him during the Easter and Summer holidays.  

In his application, the father proposed that the children fly into a neighbouring country and then travel to what he considered to be a safe part of the country. The father proposed that the mother should accompany the children and pay all of the expenses associated with the trip.

The mother successfully opposed this application, on the basis that the court found that it was not safe for the children to travel to Ukraine in any circumstances at the present time. The FDCO did not recommend travel to Ukraine unless it was essential, and the threat of war and conflict was a real concern for the court. The court was also concerned about the practicalities of the holiday and the financial implications for the mother.

The Judge highlighted that the court’s paramount consideration was the welfare of the children as set out in s.1(1) Children Act 1989. The children clearly had anxiety following the war as their former home had been destroyed and this increases the risk of emotional harm for the children.

The Judge sympathised with the father’s position because direct contact had not taken place since the children left Ukraine in 2022. It was highlighted that the father must be sad and frustrated, and that the courts have a positive obligation to promote contact, but indirect contact for the time being was the only appropriate solution.

It is important to recognise the harrowing effect of the Russo-Ukrainian War on families as this case portrays the poignant reality of war in the unusual setting of the Family Court. This case demonstrates that whilst the court should seek to promote direct contact between parents and their children where it is appropriate to do so, it was not in the children’s best interests to travel to Ukraine due to the threat of war.

Family lawyers are often presented with cases where direct contact is not taking place due to the hostility between the mother and father, but this case should open up our eyes to situations where Children Act applications are issued in more extreme circumstances.

This case allows the world to see a small glimpse of how the war has torn families apart, and how the English Family Courts are attempting to grapple with these serious issues.