Legal Considerations for Ukrainian Parents in England and Wales Under the Settlement Scheme
The ongoing war in Ukraine has led many individuals and families to seek refuge in England and Wales under the Ukrainian Settlement Scheme. In cases where one parent has travelled to England with the child with the other parent’s consent but that consent is later revoked, this can create a highly stressful and legally complex situation. Disputes may arise when the parent who remains in England (the “resident parent”) wishes to stay with the child, while the parent left behind in Ukraine (the “left-behind parent”) seeks the child’s return. Understanding the legal rights and obligations in these circumstances is essential.
Parental Rights Under the law of England and Wales
Under the laws of England and Wales, both parents generally share parental responsibility, unless a court order states otherwise. If a mother has sole parental responsibility, she has the legal right to make decisions regarding the child’s residence. However, if both parents share parental responsibility, neither parent can remove the child from England and Wales without the other parent’s consent or a court order.
If a resident parent has moved to England with the child under the left-behind parent’s initial consent, but that consent is later withdrawn, the resident parent may argue that staying in England or Wales is in the child’s best interests. Factors such as the child’s integration into school, friendships, and emotional well-being will be considered by the court when determining the most suitable residence arrangement.
Can the Left-Behind Parent Apply for the Child’s Return?
Yes, the left-behind parent can apply for the return of the child under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. This international treaty seeks to ensure the prompt return of children who have been wrongfully removed or retained across borders. However, there are legal defences available under Article 13 of the Hague Convention that may be used to contest the return application.
Defences Against the Return of the Child Under the Hague Convention
Courts in England and Wales have seen an increase in applications from left-behind parents requesting the return of children to Ukraine following their relocation to England due to the ongoing conflict. Several legal defences can be used to prevent the return of a child, including:
1. Article 13 – Child’s Objection to the Return
If the court determines that the child is mature enough to express a reasoned objection to being returned to Ukraine, their views may be considered as part of the case. The court will assess:
- The child’s age and level of maturity.
- Whether the child’s views are independent or influenced by the resident parent.
- Whether the child’s reasons for objecting are genuine and well-founded.
A Cafcass High Court officer may be appointed to conduct an assessment, speak with the child and both parents, and submit a report to the court.
2. Article 13(a) – Consent and Acquiescence
This defence applies if the left-behind parent initially consented to the child’s removal or subsequently accepted the child’s continued residence in England. Consent may be expressed explicitly (through agreements or written communication) or inferred from conduct. Acquiescence is evaluated objectively, examining whether the left-behind parent’s actions (or lack thereof) suggest acceptance of the situation.
3. Article 13(b) – Grave Risk of Harm
A commonly invoked defence is that returning the child to Ukraine would expose them to a grave risk of physical or psychological harm or place them in an intolerable situation. Given the ongoing conflict in Ukraine, courts have increasingly considered this defence in relation to Ukrainian children. Factors assessed include:
- The security situation in the child’s home region in Ukraine.
- The availability of essential services such as education and healthcare.
- The child’s emotional and psychological well-being.
Legal Steps if the Resident Parent Wishes to Remain in England
If the left-behind parent revokes their consent for the child to remain in England, the resident parent may need to apply to the Family Court for a Section 8 Order under the Children Act 1989. The court will consider:
- The reasons for the child remaining in England.
- The impact on the child of relocating versus staying.
- The child’s welfare, including their education, stability, and emotional needs.
- The child’s ability to maintain a meaningful relationship with both parents.
How can we help?
The legal landscape surrounding international child relocation is complex, particularly in cases involving war and displacement. The best interests of the child remain the paramount consideration in court proceedings. If you are facing such a situation, seeking legal advice from a family law specialist is essential to navigate the process effectively and ensure the best possible outcome for you and your child.
At Sterling Law we have experienced family law specialist who have in-depth knowledge and skills in resolving issues arising for complex international children matters. If you are facing this issue or just want some general advice in relation to international child relocation, contact us today for expert guidance.
