The High Court has ruled that a young Ukrainian girl brought to Ireland by her mother following the outbreak of the war against Russia should be returned to her native country.
In a judgement said Ms Justice Mary Rose Gearty held that the girl, called Daryna by the court who is under 10 years of age, which is not her real name, was wrongfully removed from her home country and without her father’s permission. The parties involved in the case cannot be identified for legal reasons.
The girl’s mother split up from Daryna’s father several years ago. Evidence was given to the court that the girl has expressed a desire to return to her father, with whom she had mainly resided with prior to the invasion.
In her decision the judge said that the case cantered around the fact that Ukraine is embroiled in war. The judge said that while there was “a risk of serious harm” to the girl from the on-going conflict with the Russian Federation, the evidence before the court did not show that there is “a grave risk of harm” if she is returned to her home city in Ukraine.
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The court said that it took note of the dreadful situation in Ukraine, and it was accepted that all persons in that country are at risk from “an unpredictable aggressor.”
The judge said Daryna’s home while strategically important was not the subject of daily or weekly attacks.
There was no evidence before the court to say that if returned that there was a grave risk that the girl would be physically harmed or killed in her home area.
The judge said that the evidence suggested that Daryna’s psychological health was at risk due to her removal from her home.
The girl was better served if she was returned home forthwith, the judge added. Evidence was provided to the court, including interviews between the child and an assessor, that the girl had been deeply affected by the separation from her father and people her half siblings.
After a year in Ireland, the girl does not speak English, and despite the conflict wants to return home, the judge added.
Daryna told the assessor that she has no friends in Ireland but speaks to her friends in Ukraine by on-line video links.
The assessor said that Daryna has a deep bond with both her parents and has a limited understanding of the war. The court heard that the girl’s parents had split up shortly after she was born.
Under a co-custody agreement agreed before the Ukrainian courts following the break-up the girl had mainly resided with her father, his wife, and her half siblings.
Daryna’s mother had regular access to her under the agreement. After the war began in February 2022, the mother claims that she was entitled to take the child out of Ukraine under a resolution issued by the Ukrainian Government allowing children to be taken out of their home country. She claims that she did not need the father’s notarised consent to do this, and further claims that the resolution permits her to retain the girl in Ireland.
The father disputes this and says that his former partner took the child without his consent, and in breach of their separation agreement. The father asked the Irish Courts under the Hague Convention, the international agreement which governs alleged ‘child abduction’, for an order directing that his daughter to be returned to her country of habitual residence. The mother opposed that application and argued that due to the dangers posed by the war the child be allowed remain with her in Ireland.
In her decision Ms Justice Gearty said that an order that ‘Daryna’ be retuned was required under the Convention as it was in her best interests to be returned to her father, his wife, and her siblings. The court agreed that Daryna’s mother had no authority to remove her from Ukraine, and her removal was in breach of the father’s custody rights.
The court also noted that Daryna’s father has plans to move to somewhere safe, away from their home should the situation worsen. The judge said that those plans should be shared with the court and the girl’s mother.