Arrest Warrants, Child Settlement & Objections:
The New Tripartite Test for Refusing Return under the Hague Convention – Commentary on DBH [2025] CSOH 67

1. Introduction

In DBH for orders under the Child Abduction and Custody Act 1985 ([2025] CSOH 67) Lady Tait confronted a classic Hague Convention dispute with an unusual twist: an extant U.S. civil/criminal contempt order carrying a 21-day jail term and an arrest warrant for the abducting parent. The petitioner father invoked the Convention to compel the return of his two children from Scotland to New York; the respondent mother resisted on three grounds—children’s objections (Art 13), settlement (Art 12) and grave risk/intolerable situation (Art 13(b)). The decision is significant because it is the first Scottish authority to treat the existence of an un-purged foreign arrest warrant—where its execution would separate the children from their primary carer—as, of itself, sufficient to meet the “intolerable situation” limb of Article 13(b), even where theoretical protective measures are said to be available in the requesting state.

2. Summary of the Judgment

• Children’s Objections (Art 13): Both children (aged 9 and 7) clearly objected to return; the Court accepted they had the requisite maturity and their views were authentically their own.
• Settlement (Art 12): After 18 months in Scotland, stable accommodation, schooling and community integration satisfied the court that the children were “settled”.
• Grave Risk / Intolerable Situation (Art 13(b)): While no grave risk of harm from the father personally was proved, the Court held that enforcement of the U.S. warrant—likely to remove the children from their mother on arrival—would create an “intolerable situation”.
• Discretion: Having found all three defences established, Lady Tait exercised discretion against ordering return: a “swift return” was impossible, Convention deterrence carried little weight this far from the abduction, and upheaval would serve no tangible benefit to the children.
• Outcome: Petition dismissed; no return order made.

3. Analysis

3.1 Precedents Cited and their Influence

The opinion synthesises and applies a suite of U.K. Supreme Court, Inner House and English Court of Appeal authorities:

• In Re M (Children) (Abduction: Children’s Objections) [2008] 1 AC 1288 – child-centric discretion and weight of objections.
• In Re M (2016) Fam 1 – “gateway test” for age/maturity; exhaustive factors rejected.
• W v A & X 2020 CSIH 55 – diminished deterrence when speedy return no longer possible.
• C v N 2018 SLT 673 – two-stage settlement analysis; “unusual event” to send settled child back.
• In Re E & In Re S [2012] UKSC – severity threshold for “grave risk”.
• AD v SD 2023 SLT 439 – near-automatic refusal once grave risk proven.
• Re R [2024] EWCA Civ 1296 – removal from primary carer can constitute grave risk.
• ML v JH 2021 Fam LR 60 – assumption of foreign court’s protective competence.

Lady Tait integrates these authorities to create a structured “tripartite” refusal analysis: (i) prove one or more exceptions; (ii) assess protective measures realistically, not theoretically; (iii) weigh residual Convention policy according to the passage of time.

3.2 Legal Reasoning

(a) Children’s Objections

Applying the “gateway test” of age and maturity, the Court found the children’s wishes sufficiently autonomous despite inevitable maternal influence. Objectors’ ages (7 & 9) were held not so low as to neutralise the objections; doing so would contradict the modern, child-centric ethos of Re M and W v A & X.

(b) Settlement

Following C v N, Lady Tait treated settlement purely as a factual enquiry before turning to discretion. She attributed minimal weight to the petitioner’s argument of “concealment” because it lasted only a few months and did not prevent timely Convention proceedings. This underscores that concealment, while relevant, is not determinative per se.

(c) Grave Risk / Intolerable Situation

The novelty lies here. Protective-measure experts on both sides accepted that only the U.S. court could vacate the warrant and purge contempt; the petitioner could not guarantee success. The risk that the respondent would be jailed, however briefly, would necessarily remove the children from their primary carer and place them with a father they had not seen for nearly two years. Citing Re R, Lady Tait held that such forcible separation is intolerable regardless of blameworthiness. The Court rejected the petitioner’s invitation to postpone decision for detailed undertakings: the onus lay on him to establish adequacy of protections before the order, not after.

3.3 Potential Impact

• Arrest Warrant Principle: Foreign criminal or civil orders capable of jailing the primary carer will presumptively satisfy the “intolerable situation” limb unless their discharge is procedurally certain prior to return.
• Elevation of Children’s Voices: Reaffirms that even relatively young children’s objections can carry determinative weight where corroborated by settlement evidence.
• Protective-Measure Burden: Shifts the practical burden onto petitioners to secure concrete, court-endorsed measures abroad in advance, rather than relying on optimistic assurances.
• Convention Policy Calibration: Signals to practitioners that deterrence and comity fade significantly once 12-month period lapses and settlement is proven.

4. Complex Concepts Simplified

• Hague Convention 1980: An international treaty requiring prompt return of abducted children to their habitual residence unless specific exceptions apply.
• Article 12 “Settlement”: If proceedings start more than a year after abduction, return can be refused if the child is “settled” – meaning emotionally, educationally and socially rooted in the new environment.
• Article 13 “Objection”: Return may be refused if the child objects and is mature enough for their view to be considered.
• Article 13(b) “Grave Risk / Intolerable Situation”: Return may be refused if it would expose the child to serious harm or an unbearable situation. “Intolerable” looks at circumstances the child should not have to endure, such as sudden separation from their sole caregiver.
• Protective Measures: Legal tools (undertakings, interim orders, restraining orders) designed to neutralise risk upon return. They must be concrete and enforceable.
• Discretion at Large: Even if an exception is made out, the Court still has discretion to order return, balancing child welfare against Convention objectives.

5. Conclusion

DBH provides a carefully reasoned template for future cases where multiple Hague exceptions coincide. Lady Tait crystallises three take-home rules:

1. Children’s articulated objections carry real weight even at primary-school age when substantiated by settlement evidence.
2. Once a child is factually settled, Convention policy of swift return is heavily diluted; the court’s discretion becomes predominantly welfare-focused.
3. A live arrest warrant threatening to jail the primary carer—without guaranteed vacation—constitutes an intolerable situation, satisfying Article 13(b) regardless of theoretical protective measures.

Practitioners must therefore secure concrete, court-approved safeguards in the requesting state or risk refusal. The judgment is likely to influence not only Scottish but wider U.K. and Commonwealth jurisprudence, especially where criminal or contempt sanctions lurk in the requesting forum. Ultimately, DBH re-emphasises that the Hague Convention is a child-protection instrument, not a parental enforcement tool, and its exceptions will be robustly applied where children’s welfare so demands.