LONDON (FIRMS): An Introduction to Family/Children Law: Cross-Border Disputes

Globalisation is reshaping family dynamics, leading to a rise in cross-border disputes involving children. Factors like the increasing number of multicultural families, economic pressures, global mobility, and the post-pandemic shift to remote work have contributed to a rise in child relocation and abduction cases, generating extensive jurisprudence on how these high-stakes cases should be decided.

International legal frameworks, such as the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the 1996 Hague Child Protection Convention, play a pivotal role in resolving these disputes and fostering cross-border co-operation to protect children’s interests. When a child is taken to a country that is not a signatory to any bilateral treaty, the courts may rely on inherent jurisdiction powers, such as making the child a ward of the court, to seek their return.

Currently, geopolitical factors, notably the ongoing Russia-Ukraine conflict, add further complexity. The intersection of domestic abuse with child abduction and relocation cases has also gained more attention, prompting the courts to evaluate the risks to both the parent and child.

Child Abduction and Countries at War

The war between Russia and Ukraine is a crucial factor in cases regarding the potential return of children to Ukraine under the 1980 Hague Convention. Judges must assess whether the conflict constitutes a "grave risk of harm" under Article 13(1)(b) to determine if an application for a child’s summary return should be dismissed. As ever in family law, each case is unique, and the threshold for establishing grave risk depends on specific facts.

In Q v R [2022] EWHC 2961 (Fam), Williams J established that the courts should not automatically view the conflict in Ukraine as creating a grave risk. Instead, a detailed case-by-case analysis is required. The court ordered the summary return of the child to Ukraine, rejecting the defence of grave risk of harm. A similar approach was taken in Re N (A Child) (Ukraine: Article 13(b)) [2024] EWHC 1282 (Fam), where the court dismissed the mother’s defence, ordering the return of the 12-year-old child to Ukraine and his father’s care, despite ongoing conflict.

However, in Re Z (Children) (Article 13b: Return to Kyiv) [2023] EWHC 602, the court found that the escalating conflict in Kyiv did constitute a grave risk. Both parties agreed that returning the children posed a significant risk, leading the father to withdraw his application for their return.

In February 2024, a father applied for his children to visit him in Ukraine as reported in Re Z and X (Children) (Visit to Ukraine) [2024] EWHC 314 (Fam). The court refused the father’s request for his children to visit the relatively safer Transcarpathia region. Despite acknowledging that conflict was unlikely to reach the region, the judge cited concerns about the children’s wishes, the lengthy travel involved, and the potential risk of the father taking them to Kyiv.

Domestic Abuse and International Child Abduction

The Hague Conference on Private International Law (HCCH) regularly reviews its Conventions. At the Special Commission in October 2023, the focus was on the 1980 Hague Convention and its intersection with domestic abuse, culminating in a landmark forum in June 2024 in South Africa. The forum explored how domestic violence is treated in international child abduction cases.

A major issue discussed was the tension between the Convention’s purpose of promptly returning abducted children and the need to protect domestic abuse victims, who often seek refuge in another country. The Hague Child Abduction Convention aims for the swift return of wrongfully removed or retained children, allowing the courts of the child’s habitual residence to determine their welfare. However, limited exceptions exist, including Article 13(1)(b), where the resisting parent must establish that returning the child would expose them to "grave risk of physical or psychological harm or place the child in an intolerable situation”.

This defence is challenging to establish, as the courts often accept protective measures proposed by the left-behind parent as sufficient. In most current cases, the resisting parent is the primary-carer mother, who is often fleeing domestic abuse and seeking safety. Notwithstanding this, under the operation of the Convention in the UK and in other jurisdictions, many mothers struggle to meet the high threshold of “grave risk”, meaning their child is returned.

In his opening address, Dr Christophe Bernasconi, Secretary-General of the HCCH, highlighted the complexities of upholding the integrity of the Convention while protecting victims of abuse. He said, “As the Rapporteur of the Convention, the distinguished Spanish Professor Elisa Pérez-Vera, recently mentioned in an interview, gender-based violence was simply not taken into account when the Convention, including the 13(1)(b) exception, was drafted. ‘We had not become aware that it was a phenomenon,’ she added. Nowadays, too often, we hear of mothers having been ‘Hagued’. The expression does not sit well with me. I am, first and foremost, genuinely disturbed when I hear that a return has exposed a mother to renewed violence, with sometimes tragic endings. We all agree that such tragic endings must be prevented. But as Secretary-General, I am also concerned about reputational issues for the HCCH in general and for one of our most visible Conventions in particular.”

The forum emphasised the need for case-specific evaluations, recognising the trauma caused by domestic violence in abduction cases. Recommendations included improving data collection on domestic violence-related abductions, enhancing cross-border collaboration, and better implementing Article 13(1)(b) to protect victims and their children.

While there are no concrete solutions as yet, the forum marked an important step in seeking for the operation of the Hague Conventions to better align with the realities of domestic abuse. A further forum has been proposed to take place in Brazil in 2025 to continue the dialogue.

Child Relocation

Relocation disputes continue to be complex and emotionally charged cases in cross-border family law. In England and Wales, the framework governing international child relocation is based on the welfare principle outlined in Section 1 of the Children Act 1989. Currently, a parent wishing to relocate a child faces challenges in gaining the court’s permission.

This marks a shift from previous cases. Since the introduction of Sections 1[2A] and 1[2B] in 2014, there has been a statutory presumption that both parents’ involvement is in the child’s best interests. Before this change, it was generally easier for the primary caregiver – often the mother – to obtain approval for relocation, guided by the landmark case, Payne v Payne [2001].

Recent rulings have refined this approach, emphasising a holistic assessment of a child’s welfare in relocation cases. Key decisions, such as K v K [2011], Re F (Relocation) [2012], and Re F (A Child) [2015], illustrate this nuanced perspective.

Since 2017, the courts have been required to assess domestic abuse in every case and determine whether a fact-finding hearing is necessary, as specified in Practice Direction 12J. This requirement aligns with a broader, more nuanced understanding of domestic abuse in all its forms. As a result, the way allegations of abuse are handled in relocation cases is beginning to shift. The courts are now more willing to carefully consider domestic abuse claims when deciding whether a child should be permitted to relocate, even when supervised contact arrangements are in place.