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The father, mother and elder child (H) were British Citizens holding US Green Cards. The younger child (B), was a USA citizen. The family had lived in Florida for some time.

In July 2025 the family travelled to the UK for a three-week holiday and to visit relatives. Whilst they were in Scotland the mother told the father that she intended to remain there with the children. The father did not consent to the retention of the children in Scotland.

On 1 August 2025, the father brought a petition under the 1980 Hague Abduction Convention seeking an order for the return of the children to the USA.  On the same day the mother raised proceedings in the Scottish court and obtained an order which, among other things, prohibited the father from taking the children out of her care and control. 

On August 15 the mother agreed that H could accompany the father to Yorkshire to visit family. On 19 August they returned to Scotland but the father did not return H to the mother, claiming that the child refused to go. Since then H has lived with the father in Scotland and B with the mother. 

The mother did not dispute that the children were wrongfully retained in Scotland but argued that Article 13(1)(b) applied. She argued that returning the children to the USA would place them at grave risk of harm due to the lack of proper education, a financially unstable lifestyle, and the lack of health insurance meaning potential lack of healthcare for the children. The mother also argued that she had suffered domestic violence by the father and that her own mental health was seriously at risk. The mother said she would not return to the USA, even if a return order was made in relation to the children. 

H wanted to return to the USA and set out his views in relation to some of the matters relied upon by the mother as establishing an Article 13(1)(b) grave risk, including the lack of proper schooling, accommodation and the impact on them if she committed suicide. He said he would be unhappy if the mother remained in Scotland but it would not change his view about wanting to return to the USA. 

The younger child, B, also wanted to return to the US but the Child Welfare Report stated that, though his views were clear and firm, he displayed an inappropriate knowledge of the case and that the father had attempted to influence him.

At first instance the Lord Ordinary found a return to the USA would place B in an intolerable situation but not H. He ordered the return of H and not B. 

The father appealed the decision arguing that the Lord Ordinary should have ordered the return of both children to the USA. The father submitted, amongst other matters, that the Lord Ordinary had failed to consider what protective measures might be put in place in Scotland to guard against the deterioration in the mother's mental health. On appeal, the Inner House rejected this argument. 

The mother also appealed the decision arguing that the Lord Ordinary should not have ordered the return of H to the USA. She argued that the question of what was intolerable was an objective one and the Lord Ordinary had erred in taking into account H’s subjective wishes. On appeal, the Inner House agreed and concluded that the Lord Ordinary erred in law in taking H’s views into account in assessing whether the situation to which he would be returning would be intolerable for him. The Inner House attached particular weight to the risk of very serious harm to H were the mother to commit suicide. The court was therefore satisfied that there was a grave risk that H’s return to the USA would place him in an intolerable situation and refused to order a return.

The father appealed the decision. 

Appeal dismissed (for reasons different to those given by the appellate court). Return refused. 

Grave Risk - Art. 13(1)(b)

The key issue on appeal was whether the views of the child can be taken into account in assessing whether there is a grave risk that return would expose them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation.

The court noted that several Supreme Court decisions established that the child can be heard and the child’s views ought to be taken into account. This was also consistent with Article 12 of the United Nations Convention on the Rights of the Child 1989.

The Court observed that: there was no obligation on the child to express his or her views but a presumption that they will be given an opportunity to be heard; there would be no point hearing from a child if the court were then to hold that their views should not be taken into account; giving a child an opportunity to be heard is not to be confused with giving effect to the child’s views; the child should not be given the opportunity to be heard if it is inappropriate to do so having regard to the child’s age or degree of maturity; the opportunity for the child to express a view is not limited to any particular aspect of Article 13 or indeed to any particular aspect of an application for the child’s return; and in practice it is artificial to draw a distinction between physical and psychological harm on the one hand and placing a child in an intolerable situation on the other.

The Court concluded that in Hague Convention proceedings the views of a child can be taken into account in assessing whether there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

In the present case, the child was heard and the appeal court chose to exclude it from consideration. The Supreme Court held that the First Instance Judge was right to take into account H’s views. These views were not determinative, and it was for the court to determine what, if any, weight to attach to them.

The father also argued that the appeal court was wrong to interfere with the first instance decision that, even if Article 13(1)(b) had been established, the judge would have exercised his discretion to order a return. The Supreme Court held that the first instance Judge’s decisions for exercising such discretion were wrong. The first reason given by the judge was that if Article 13(1)(b) had been made out it would be ‘borderline’, this terminology was inappropriate and the decision as to whether an Article 13(1)(b) grave risk had been established was binary. The second reason was that, although circumstances on return were not ideal, they were “not so drastic, or intolerable that it is inconceivable that he be returned”. The Supreme Court held that if H’s return would expose him to a grave risk of extreme psychological harm then at the very least the first instance judge should have given the most anxious consideration as to why he should nevertheless expose H to that risk. There was no such evaluation. 

The third issue on appeal was whether the first instance judge should have resolved the question as to whether the child’s views reflected the father’s manipulation of the children. The first instance judge did not reach a conclusion on this matter and the Supreme Court held he was entitled to reach this decision.

The fourth issue was, even though the first instance judge took account of H’s views, his analysis in respect of the risk of harm was flawed. The Supreme Court agreed with this argument. The weight to be attached to the child's views depended on the extent to which they were authentically his own, a question to which the first instance judge had come to no conclusion. The evidence of the child's views also did not address the critical risk that had been identified, namely, the risk of the mother committing suicide. H did not even contemplate his likely reaction to this, and the underlying assumption was that his mother would be alive and he would visit her in Scotland regularly.  The child was not asked to contemplate the mother committing suicide, and it would have been completely inappropriate to ask him to do so. Since the child did not express any views on how he would react in that eventuality, there was nothing for the first instance judge to take into account, and so his views did not negate or mitigate the real risk of extreme harm. Therefore, the court held that Article 13(1)(b) applied.

The Supreme Court held that there was is a grave risk that H’s return to the USA would expose him to psychological harm which he could not reasonably be expected to tolerate. H’s views, whilst of weight in relation to matters such as schooling and accommodation, did not address whether he could tolerate harm caused to him if his mother commited suicide. Article 13(1)(b) applied and there was nothing to suggest that the discretion should be exercised nonetheless to order H’s return to the USA.

The judgment referred to the Guide to Good Practice on Article 13(1)(b) of the 1980 Convention.