The Treaty Under Fire: Ukraine, War, and the Hardest Cases the Convention Has Ever Faced

Executive Summary

Every doctrine in this series rests on an unstated premise: that somewhere there is a safe home to return a child to. On 24 February 2022, for one Contracting State of forty-four million people, that premise went to war — and the Hague Convention faced the hardest cases in its history. Two English judgments are the field's answer. In Q v R (2022), a court ordered a child's summary return to western Ukraine, far from the fighting: a war somewhere in a country is not a grave risk everywhere in it. In Re Z and X (2023), the same court found the grave risk to Kyiv — then under missile attack — established, and the children were not sent back. Read together, they prove the series' oldest lesson wearing armour: grave risk is a fact about a specific child in a specific place at a specific time, never a label on a country. The Convention bent to reality case by case and held. This is educational, not legal advice.

Introduction

Every doctrine in this series rests on an unstated premise: that somewhere, there is a safe home to return a child to. Habitual residence assumes a residence. The six-week clock assumes functioning courts at both ends. Grave risk assumes risk is the exception. On 24 February 2022, for one Contracting State of forty-four million people, every one of those premises went to war.

Ukraine was a working member of the Convention — 38 incoming and 43 outgoing return applications in the 2021 study [Annex 1], a two-way European corridor like any other. Then millions of mothers and children crossed borders in weeks — lawfully, desperately, often with the express consent of fathers who, under martial law, could not leave themselves. The Convention's machinery kept running underneath the exodus: Ukraine remained a Contracting Party, its Central Authority kept working, and by 2024 Ukraine stood third among Germany's Hague partners. And into Europe's courtrooms came the question the treaty's drafters never had to answer: what does "return" mean when the home country is being shelled?

Two English judgments, decided months apart about the same war, are the field's answer — and the finest stress-test the grave-risk clause has ever passed.

Legal Background: the grave-risk clause, and what is (and isn't) this treaty's subject

Two distinctions frame this final article. First, the mechanism: Article 13(1)(b) lets a court refuse a return where there is a "grave risk" that it "would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." It is the treaty's safety valve — and, as always, a Hague return decides only the forum (which country resolves custody), not custody itself. Return ≠ custody. Second, and crucially for this article: the 1980 Convention governs private cross-border abduction — one parent or relative taking a child from another. The mass, state-organised transfer of children in wartime is a different matter governed by different law — the Geneva Conventions, the Genocide Convention and the Rome Statute — and is not this treaty's subject. This article keeps that line bright, and addresses the state-level question in a single, clearly separated paragraph, precisely because conflating the two would misdescribe both.

What happened

In Q v R [2022] EWHC 2961 (Fam), a Ukrainian mother who had come to the UK on a post-invasion visa scheme faced her child's father's application for the child's summary return to Ukraine. The argument that would seem unanswerable was that Ukraine is a war zone and Article 13(1)(b)'s grave risk of physical harm is no metaphor. But the mother's own proposal was to live in a town in western Ukraine, a significant distance from the hostilities, and Mr Justice Williams examined the actual geography — the region, its distance from the fighting, the pattern of strikes, the child's specific circumstances — and held that the threshold was not met. Return was ordered. The court was explicit that the conflict should not be treated as automatically creating a grave risk: a war somewhere in a country is not a grave risk everywhere in it.

In Re Z and X (Children: Article 13(b): return to Kyiv) [2023] EWHC 602 (Fam), the same judge faced the same defence about children whose return would be to Kyiv — then under recurring drone and missile attack. This time the court found the grave risk of physical harm established; the children were not returned (the father, faced with that finding, withdrew his return application). Same treaty, same clause, same judge — opposite result, because the place was different.

Germany's courts drew the same map: according to the Ukrainian Supreme Court's published survey of the case law, the Higher Regional Court of Stuttgart refused a 2022 return to Odesa on Article 13(1)(b) grounds, citing the unpredictability of strikes, and across 2022–23 the majority of Ukrainian parents' return applications abroad were dismissed under Article 13(1)(b), foreign courts reasoning that the whole territory had been declared a war zone.

Read the pair of English cases together and the doctrine's wartime shape emerges — and it is this series' oldest lesson wearing armour: grave risk is a question of fact about a specific child in a specific place at a specific time, never a label on a country. Courts read maps, strike data, and evacuation logistics; they distinguish one region from another, this month from last. A German court completed the principle in 2024 by ordering a child's return to Israel during its own war — the analysis published under a title that says everything: "Israel is not Ukraine." Conflict-zone analysis is granular or it is nothing: neither a rubber stamp for return nor a war-wide exemption from the treaty. The Convention bent to reality case by case — and held.

The wave that is still building

The judgments above are the visible edge of a much larger mass. Consider what the war did to the Convention's everyday categories:

• Consented evacuations are aging into retention disputes. A father's 2022 consent to his children's refuge abroad was given for an emergency, not an emigration [the Balev trap, #17, at continental scale]. As months became years, families now disagree about whether the refuge has become the residence — with the fathers often unable to travel to litigate, and the children enrolled, rooted, and learning new languages [the settlement arithmetic of #26, running at scale].
• Habitual residence is drifting under the law's feet. For a child who left Kharkiv at four and is now eight in Warsaw or Berlin, the Monasky/Balev totality analysis [#2, #17] will one day have to say where home is — and the honest answer may differ from the just one. The post-war reckoning, whenever it comes, may be the largest simultaneous test of Article 12 and habitual residence in the treaty's history.
• And the machinery kept counting. Ukraine's Central Authority continued processing applications through the war; German, Polish and other European authorities kept the corridor's files open. The treaty's quiet administrative persistence — desks answering mail under air-raid alerts — deserves recording alongside the jurisprudence.

One paragraph must stand apart, clearly separated from everything else this series covers. The documented deportation and transfer of Ukrainian children by Russian authorities — for which the International Criminal Court issued arrest warrants on 17 March 2023 against Russia's president and its Commissioner for Children's Rights, for the alleged war crime of unlawful deportation and transfer of children — is not parental abduction and is not this treaty's subject: it is alleged state crime, addressed by international criminal and humanitarian law, not the 1980 Convention. It belongs in this article for one reason only: it marks the zero point — child-taking where no consent, no court, no convention and no counting exist at all — against which everything in these thirty articles, including the system's worst private-law failures, measures as a form of order.

What This Shows About the Limits of the Hague Convention Alone

Ukraine reveals the Convention's outer boundary in two directions at once. Inward, the war cases show the treaty's design is more robust than its critics allow: the grave-risk clause, so often accused of either swallowing the treaty or ignoring the vulnerable, did in wartime exactly what a safety valve should — it opened for Kyiv and Odesa, stayed shut for safer regions, and kept the treaty honest without a single new amendment. Outward, the state-deportation paragraph marks where the 1980 Convention simply ends: it was built for the private wrong of one parent taking a child, and it has nothing to say to the mass wrong of a state doing so — which is why other, graver instruments exist. The lesson of the whole series lands here: the Convention is a precise tool for a specific harm, powerful within its scope and silent beyond it, and the work is to make it work well where it applies and to know, honestly, where it does not.

What Parents and Professionals Should Understand

For displaced parents on both sides of these cases, the single most valuable thing — a prompt to document and consult a lawyer, not legal advice — is to write everything down now: evacuation consents with dates and stated intentions, agreements about schooling "for the duration," records of every conversation about return, because when the post-war cases come, the parents who documented the temporariness (or its ending) are the ones the Balev and Article 12 analyses will believe [#17, #26]. For courts, the war is the strongest argument that the Convention needs no new exception, only judges willing to find facts quickly and granularly — to read the strike map, distinguish the region, and decide the specific child's specific risk [#3]. And for everyone who has followed this series, the deepest lesson is the one the war made unmistakable: the Convention held not because its text anticipated missiles over Kyiv, but because its institutions — a Ukrainian Central Authority answering treaty mail under air-raid alerts, English judges studying strike data, a German court parsing the difference between two wars — treated one child's file at a time as worth the effort. The treaty is only ever as good as the desk it lands on, and the desks can be made good: Germany rebuilt its own [#9], Japan legislated twice [#4], Spain criminalised its gap [#22], Israel returned a child in 83 days [#10].

Limitations

This is a fast-moving wartime situation; the case law and the facts on the ground continue to develop, and the judgments here are a snapshot. The grave-risk assessments are, by nature, fact-specific and not transferable between cases. The state-deportation matter is summarised strictly from the ICC's public actions and is outside this series' family-law scope. This is educational and not a substitute for advice from a qualified lawyer in the relevant jurisdiction.

Conclusion

This series began with a promise to look at real cases honestly — verified facts, named metrics, both truths held at once. It ends where the Convention is tested hardest: in a country at war, where the treaty's every assumption failed and its institutions carried it anyway, one child's file at a time. The grave-risk clause did not collapse and did not become a rubber stamp; it did the difficult, granular thing — return to the safe town, refuge from the shelled capital — that is the whole of good judging in this field. Thirty case files, one method, one finding: the treaty is only as good as the people who apply it, and those people can rise to almost anything. The series ends. The children in the next statistical study — 2,700 applications' worth, plus all the uncounted — are the reason this work exists. The ledger stays open.

Frequently Asked Questions

Can a child be returned to a country that is at war? It depends entirely on where in the country and the specific facts. In Q v R (2022) an English court ordered a return to a town in western Ukraine, far from the fighting; in Re Z and X (2023) the same court found the grave risk to Kyiv, then under attack, too high, and the children were not returned. Grave risk is assessed for the specific child, place and time — not for a country as a label.

What is Article 13(1)(b)? The Hague Convention's "grave risk" defence: a court may refuse to return a child where return would expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation. It is the treaty's main safety valve, and it must be established on the specific facts.

Is the Russian deportation of Ukrainian children a Hague Convention matter? No. The 1980 Hague Convention governs private parental abduction. The mass state-organised transfer of children — for which the ICC issued arrest warrants on 17 March 2023 — is a matter of international criminal and humanitarian law (the Geneva Conventions, the Rome Statute), an entirely different legal framework.

My children were evacuated abroad during a war with the other parent's consent. What should I keep in mind? Document everything — that the consent was for an emergency, any agreement about schooling "for the duration," and every discussion about return — and get advice from a family lawyer. As emergencies stretch into years, disputes about whether a refuge has become a new home are decided largely on that evidence of intention.