Children caught in conflict – fleeing war; ‘grave risk’ defence to child abduction in the English courts

Lizzie Smith Partner Family Team Stephens Scown LLP

Thousands of children each year across the globe are caught up in war. The ongoing conflict in Ukraine has seen more than 2.5 million children displaced and thousands fleeing their homeland to seek safety principally mothers and children seeking refuge abroad with fathers left at home to fight. For some of these families children are removed without consent of the remaining parent including where relationships have broken down. Under the 1980 Hague Convention the emphasis is on returning children their home country for their domestic court to make decisions about their future. There is much debate in jurisdictions across the world as to whether the risks of war amount to “grave risk” under the convention and as such whether a parent of children fleeing war should be able to rely on this as a defence to an automatic return. There have been a number of recent cases in the English courts grappling with this issue and highlighting that cases will be decided on their individual facts focussing on the experience of a specific child returning to a specific location. 

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