Danish Supreme Court: Refugee’s Child Cannot Be Returned to Father in Ukraine

On 6 March 2025, the Danish Supreme Court held in a decision that an abducted child should not be returned to Ukraine under the 1980 Hague Convention on the Civil Aspects of Child Abduction (1980 Hague Convention). The court found grounds to refuse the return, emphasizing that while the war in Ukraine influenced the situation, the decision was based on the practical difficulties of travel and family circumstances rather than on fears for the war itself.

Background

In the summer of 2021, a Ukrainian woman gave birth to a child in Ukraine. The father lived with the mother and child intermittently until Russia’s fullscale invasion of Ukraine in February 2022. A few weeks after the invasion, both parents agreed that the mother and child should move to Poland to reunite with the mother’s other child. After nine months in Poland, the mother moved with the children to Denmark.

Until May 2023, the father maintained contact with the child via video calls. In August 2023, he filed a lawsuit in a Danish family court, seeking the child’s return to Ukraine under the 1980 Hague Convention. As is set out in Article 3 of this convention, the general principle is that a wrongfully removed child promptly shall be returned. However, Article 13 provides exceptions, including when the return would expose the child to grave risks.

The Supreme Court’s Decision

After lower courts reached different conclusions, the case was appealed to the Danish Supreme Court.

The first whether the child’s habitual residence had changed at the time of removal. Here, the court held that the relevant point of time to determine that was December 2022. The first issue was whether the child’s habitual residence had changed. The court determined that as of December 2022, despite nine months in Poland, the child’s habitual residence was still in Ukraine. Consequently, the child’s relocation to Denmark without the father’s consent was an abduction under the 1980 Hague Convention.

Even if the prerequisites for a wrongful removal were fulfilled, the court continued to assess whether the exceptions to order a return could be applied. Under Article 13(b) of the 1980 Hague Convention, a state may refuse to order a return if there is a grave risk that the child is physically or psychologically harmed or placed in an intolerable situation. Holding that the child had a very close connection to his mother as the primary caregiver, the length of the stay in Denmark, the child’s limited contact with the father and the circumstances in Ukraine, the court concluded that a return would put the child in an intolerable situation. As regards the situation in Ukraine, the court held that it would be hard for the mother and her other child to travel to Ukraine.

Comment

At first glance, it may seem that the war in Ukraine was the deciding factor in this case. However, the Supreme Court did not base its decision on the dangers of war itself but rather on the practical challenges it created, particularly travel difficulties and the impact on the child’s family relationships.

Importantly, this ruling does not establish a blanket refusal for all removals from Ukraine. Instead, it highlights that each case must be assessed individually, considering the specific impact of the war on the child’s well-being and family situation.