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

This case concerned two children aged 16 and 11 with the Applicant Father seeking an order to spend time with them specifically that the children travel to Ukraine for a holiday visit with him at Easter and/or Summer 2024.

The Father lives in Kyiv, Ukraine, and the Mother lives in England.

The Court heard from the Cafcass officer, and from the parties themselves. Unfortunately, although some material was provided to the Court around the risks that existed in Ukraine at that time it was out of date or lacked a degree of objectivity and/or relevance. The Court found the most useful information to be the FCDO current advice on travel to Ukraine.

The children speak to their Father 2/3 times a week and there is no restriction on this.

The Father’s case is that moving forward in each school holiday starting with Easter 2024 the children travel to Transcarpathia a region in the far west of Ukraine which he says is sufficiently safe for a visit. He says the children should fly to a city in one of the neighbouring countries such as Slovakia, Romania, Hungary, Poland and then make the final part of the journey to the border by road. Also, that the Mother should cover all the expenses for the trip including flights, trains, taxis, buses, hotels, and/or meals in transit. He would cover the expenses of the children while they are in his care in Ukraine.

The Mother’s case was she supports the current level of indirect contact, acknowledging the children love their father very much. She would support the children visiting their father in Ukraine were it safe to do so. She opposes the application at this stage on the basis of practicality, cost, and the children themselves are currently reluctant to make the journey.

The Cafcass officer’s recommendations in summary were to not recommend spending time in Ukraine whilst the war continues there, and the general level of uncertainty related to any travel arrangements to that country. In her oral evidence she said, “a long journey is one thing, but a journey to a destabilised country is another and will have an impact on any concerns which the children may or may not have”. The Cafcass officer acknowledged that the absence of physical contact with the father was a loss to the children, but she did not feel she could recommend a visit to Ukraine while the war continued.

As one of the children (“Z”) was 16, the Court must consider whether the “circumstances of the case are exceptional” so only if that is satisfied then can an order be made in respect of her.  The issues Mr Justice Cobb considered to be right to focus on in this case were as follows:

  • The importance for the children of maintaining and enhancing their relationship with their father; the children and the father’s mutual rights under Article 8 ECHR to a family life should be respected fully.
  • The parents’ wishes/views.
  • The physical risks associated with the proposed contact in Ukraine, and the risks of emotional harm to the children (which may be caused by anxiety, distress, upset at the long and arduous journey to get there not to mention their current resistance to travel).
  • Risk of abduction of the children to Kyiv by the father, and their retention there.
  • The practicalities of the proposal for the children to travel to Ukraine, and the cost.
  • The views expressed by these children given their age and level of maturity.

The FCDO advised against all but essential travel to the western regions and continues to advise against all travel to the rest of Ukraine. It goes on to say that there is an ongoing risk of harm to British nationals from Russian attacks across all of Ukraine including from missiles and drones that hit unintended targets or from falling debris.

The Judge determined that in light of all that he had read and heard, he was prepared to accept that Transcarpathia is not intrinsically unsafe at present, as the FCDO is not warning against all travel there but against all “but essential” travel to this area. It seems unlikely that conflict will break out in the region now on the information before the Court, but it cannot of course be completely ruled out.

The Court expressed considerable sympathy for the position the family find themselves in as a result of the war. The Judge expressed the view that in material respects his powers are limited as follows:

  • He may make section 8 orders in respect of one child only if he finds that the circumstances of the case are exceptional. The circumstances are exceptional in the sense that unusually this Father seeks direct contact with his children in a country which is currently at war, but looked at from Z’s perspective, there is nothing about her as a mature and independent young person or her relationship with her father a loving one which exceptionally requires the Court to make an order.
  • He cannot make any order requiring or compelling the mother to accompany the children to Ukraine, if the mother chooses not to travel the Judge was sure the children would not go.
  • He has limited if any powers to direct the mother to pay the not inconsiderable cost of travel either for herself and/or for the children as the father proposes, there has been no detailed examination of her means.
  • While he has been encouraged on behalf of the father to accept undertakings from the father about returning the children and not placing them in danger, he has no assurance from the father about the recognition or enforceability of any such undertakings in Ukraine.

The Court started from the proposition that generally it is in the interests of children to have a meaningful relationship with both of their parents and with all other things being equal, this would involve direct contact between father and the children. Considering the harm, the children had suffered, they have suffered significant displacement, plainly not unaffected by the war. The children should not and cannot be forced to undertake the journey back to Ukraine and any steps to compel them would cause the children great anxiety and was assessed as significantly emotionally harmful.

An order had been made in March 2023 that did not contemplate direct contact between the father and the children taking place in Ukraine while the war continues but only outside the state of Ukraine. In the Court’s judgment, that position should be maintained for the time being. Therefore, the father’s application for direct contact by way of holidays in Ukraine was refused.

At the end of the hearing, Cobb J expressed hope that the time comes when the situation relaxes enough to allow the father to travel outside Ukraine to the UK or another third State perhaps elsewhere in Europe where direct contact can safely take place. He was also given every reason to expect that the children’s anxieties will abate sufficiently as or when the hostilities in Ukraine cease to enable the parents and children to make cordial arrangements for direct contact either in the UK and/or in Europe and/or in Ukraine.

Full judgment can be found via this link: https://assets.caselaw.nationalarchives.gov.uk/ewhc/fam/2024/314/ewhc_fam_2024_314.pdf