Child Abduction & The Article 13b Defence 

When faced with an allegation of child abduction, a question we are often asked is whether the alleged abductor can rely on the Article 13b defence that they had removed the child as he or she would otherwise suffer physical or psychological harm or otherwise be placed in an intolerable situation. 

This question will often arise when a parent is fleeing an abusive relationship or has been subjected to domestic violence, coercive control, or abuse. What happens when the plan is to return the child to a war zone, such as Ukraine? 

When a parent takes steps to remove a child to a different jurisdiction, or to retain a child in a country, where they do not ordinarily live, the motivation, is usually child-focused and sincere. That parent will genuinely believe that they are acting in the best interests of the child to safeguard them from what they perceive to be a desperate situation or risk of harm elsewhere. This can never be more acute than when the proposal of one parent is to return the child to a country which is at war. 

The war between Russia and Ukraine has resulted in many children coming to the UK to escape the conflict, usually with their mother. Those families will sometimes have relatives or friends in the UK and settle with host families. There has been a good level of support for Ukraine families fleeing the war, but what happens when the time comes for them to return if it is still a war zone? 

This is exactly the question we were presented with when Melanie Bridgen, Partner from our Family Law team, was instructed by a loving father, whose child had been brought to the UK by the other parent fleeing the Ukraine war and then wanted to return there before the war was over.  

Q v R 

Case summary 

Our client believed the child was settled and would not be returned until peace had been declared. He was supporting the child and enjoying regular contact. 

When the other parent declared an intention to return to Ukraine, our client sought to take protective measures to keep the child in England where he knew they would be safe, for the duration of the war.  He applied for a prohibited steps order as he was concerned that the child could be a casualty of the conflict if they went back to Ukraine.  

He argued that the child should stay here, as there would be a grave risk that the return would expose the child to physical or psychological harm or otherwise place him in an intolerable situation. His case was simply that it was in the best interests of the welfare of the child to stay here in England. 

In terms of child abduction, this is commonly known as the Article 13b defence as it arises under that part of the 1980 Hague Convention. 

The case was scrutinised very carefully by the Court with particular reference to the precise geographic area that the proposed return involved.  

Unfortunately, the Court could not be persuaded and this time we were not able to establish the defence as the exact area of Ukraine was not immediately involved in the conflict, although we argued there was an obvious risk that the conflict could escalate to that area at any point. 

This was a very interesting case, and if the proposed return had been to another region, it may have met with a different outcome.   

When faced with allegations of child abduction satisfying the test to meet the requirements of the Article 13b defence is always a high hurdle to cross but should be pleaded in any case where a parent is concerned that a child will be placed in an intolerable situation or be at risk of physical or psychological harm. 

Obtain legal advice 

If you are concerned that the other parent is about to remove your child from England without your consent, then you should take immediate advice to see what protective preventative measures can be put in place to stop this from happening. Likewise, if the child has been removed. There may be immediate remedies available for you to ensure a swift return through the Courts. 

If you are considering removing the child to a different country then permission from the Court will almost always be needed if you want to avoid an action for child abduction.