Child’s Wishes Cannot Dilute Article 13(b) “Grave Risk”: Intolerability Remains Objective in Hague Return Proceedings
1. Introduction
This reclaiming motion (appeal) arose under the Child Abduction and Custody Act 1985 implementing the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
The petitioner father (DM) sought the summary return to Florida of his two sons: H (14) and B (8). The mother (SM) had retained the children in Scotland during a holiday, which was accepted to be a wrongful retention under Article 3 of the Convention.
The central issue was whether SM established the Article 13(b) exception—namely, that return would expose each child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation. At first instance, the Lord Ordinary ordered H’s return but refused B’s return. DM appealed seeking return of both; SM cross-appealed seeking refusal of return of H.
2. Summary of the Judgment
The Inner House:
- Refused DM’s reclaiming motion: it upheld the Lord Ordinary’s refusal to return B.
- Allowed SM’s reclaiming motion: it recalled the order returning H and refused return of both children.
The court held that the Lord Ordinary erred in law by taking H’s views into account when assessing “intolerable situation” under Article 13(b). Once H’s views were removed, there was no proper basis to distinguish his position from B’s; the combination of factors—particularly the risk of extreme harm if SM completed suicide—meant return would place H in an intolerable situation.
3. Analysis
3.1 Precedents Cited
This was treated as the leading authority on Article 13(b). The Inner House relied on two key propositions:
- “Grave” qualifies the risk, but is linked to the seriousness of harm: a low probability of very severe harm (e.g., death or really serious injury) can still be “grave”.
- “Intolerable” is not a soft alternative: it colours the meaning of “physical or psychological harm” and requires an objective assessment of what the child should not reasonably be expected to tolerate.
The court used In re E (Children) to reject the Lord Ordinary’s attempted distinction that “intolerable situation” could be assessed by reference to what the particular child was willing to tolerate.
This authority influenced the court in two ways:
- Definition of “intolerable”: “a situation which this particular child in these particular circumstances should not be expected to tolerate” (objective reasonableness, not subjective preference).
- Hearing the child: the court reaffirmed that children must be given an opportunity to be heard in Hague return cases, not only where “child objections” is pled.
The Inner House relied on this case for the practical proposition that, where a court is satisfied Article 13(b) is met, it is “inconceivable” that discretion would be exercised to return the child to face that grave risk. This underpinned the court’s refusal to return H once it found Article 13(b) established.
AD v SD [2023] CSIH 17, 2023 Fam LR 52
This was used to confirm that parental mental health can found an Article 13(b) defence where the mother’s suffering (even if driven by her subjective perception) creates a grave risk that the children will be placed in an intolerable situation.
In Petition of DM, the risk was tied to SM’s adjustment disorder, prior overdoses, and the potential for a further attempt if the children were returned.
FPS v SM [2024] CSIH 20, 2025 SC 61
Cited in the discussion about whether the UNCRC (Incorporation) (Scotland) Act 2024 regulated the “hearing the child” obligation in these proceedings. The Inner House expressed doubt that Hague proceedings under the 1985 Act are exercises of a “relevant function” under section 6 of the 2024 Act, but held that—regardless—Article 12 UNCRC compliance is required by virtue of In re D (Abduction: Rights of Custody).
Relied on in argument for appellate restraint (“plainly wrong”). The Inner House nevertheless intervened because it identified an error of law (misdirection on relevance of a child’s wishes within Article 13(b)), rather than mere evaluative disagreement.
TS v S [2024] CSIH 24, 2025 SC 76
Cited in submissions for the proposition that even younger children’s views may sometimes prevail, and that age and maturity can affect weight. The Inner House did not dispute the general point, but confined it to contexts where the child’s views are legally relevant (notably “child objections”, or potentially discretionary stages), not to diminish a proven grave-risk case.
Singh v Singh 1998 SC 68
Central to H’s submissions: that “intolerable” could not be purely objective and that the child’s views could carry significant weight. The Inner House distinguished it as a child objections case, where views are directly relevant to the defence and may also inform discretion. It therefore did not support importing a child’s subjective tolerance into the Article 13(b) “grave risk” assessment.
3.2 Legal Reasoning
(a) The court’s core clarification: subjective tolerance is irrelevant to Article 13(b)
The decisive legal development lies in paragraphs [51]–[55]. The Lord Ordinary had reasoned that a child’s views could be factored into whether return would place the child in an “intolerable situation” (because “intolerability” depended on what the child could and would tolerate).
The Inner House rejected this as a misdirection:
- Article 13(b) requires a grave risk, whether the risk is framed as physical harm, psychological harm, or “otherwise” intolerability.
- “Otherwise” confirms equivalence of seriousness: “intolerable situation” is not a lesser category that can be softened by a child’s stated willingness to endure it.
- Objective test: what matters is whether the child should not reasonably be expected to tolerate the situation, not whether the child says he would.
This reasoning both tightens and clarifies the structure of Article 13(b): it prevents the “intolerable situation” limb being used as a conduit for subjectivity that would be impermissible for physical/psychological harm.
(b) Parental mental health risk and protective measures: CBT as a “protective measure” argument rejected
DM argued that SM’s risk could be mitigated by therapy (CBT) available in Scotland, and that the Lord Ordinary failed to treat this as a protective measure reducing the risk.
The Inner House rejected that characterisation:
- The psychological evidence (Professor Macpherson) was not a simple “CBT solves it” proposition; it included the view that a court-ordered return would have an immediate negative impact on SM’s mental health.
- CBT was recommended only if symptoms remained clinically significant; it could not be “elevated” into a dispositive safeguard negating the Lord Ordinary’s conclusion that further suicide attempt could not be ruled out.
The court thereby signalled that, in mental-health-driven Article 13(b) cases, purported safeguards must be assessed realistically, in context, and must be capable of materially reducing the relevant grave risk.
(c) Distinguishing H and B: once H’s views are removed, the distinction collapses
The Lord Ordinary treated H’s maturity and expressed wish to return as a key differentiator. The Inner House held that this distinction rested on the legal error; removing H’s views left no proper basis for saying H faced materially less grave risk than B in the combined circumstances.
Crucially, the court attached “particular weight” to the risk of extreme psychological harm to H were SM to complete suicide, treating that as sufficient—within the collective assessment—to meet Article 13(b).
(d) Hearing the child: compliance required, but hearing is not outcome determinative
The Inner House reaffirmed the principle from In re D (Abduction: Rights of Custody) that the child must be given an opportunity to be heard in Hague return proceedings. However, it drew a sharp line between:
- being heard (procedural right), and
- legal relevance of the views to a given defence (substantive law).
This case demonstrates that a child’s views may be heard and recorded, yet still be legally incapable of reducing or negating an Article 13(b) grave-risk finding.
3.3 Impact
(a) Doctrinal impact: preventing “intolerable situation” from becoming a subjective escape valve
The most important precedent is the court’s clear statement that a child’s willingness to tolerate the consequences of return is not part of the Article 13(b) evaluation. This is likely to:
- reduce forensic incentives to frame Article 13(b) cases as quasi “child objections” cases;
- tighten first-instance reasoning by requiring an objective intolerability analysis even for older, articulate children;
- help appellate review by identifying a clear legal boundary: if a judge treats a child’s stated willingness as diluting intolerability, that is an error of law.
(b) Mental health-driven grave risk claims: realism about mitigation
The court’s approach suggests that “available treatment” will not automatically neutralise grave risk, particularly where:
- there is recent, concrete crisis history (here, an overdose found by the younger child); and
- expert evidence indicates acute negative impact from a return order itself.
(c) Procedure and evidence: independent insight into maturity and influence
The court expressed concern that there was no independent input on H’s maturity and the independence of his views (despite his separate representation). While not decisive to outcome, this “Observations” section may influence future practice by encouraging parties and courts to consider:
- child welfare reporter/curator input where a teenager’s instructions are pivotal; and
- careful scrutiny where a child’s position develops while in the care of the parent seeking return, especially in breach (even if not letter) of an interim protective order.
4. Complex Concepts Simplified
- Wrongful retention (Article 3): keeping a child in a country without the consent of the person with custody rights, contrary to the child’s habitual residence arrangements.
- Habitual residence: the child’s ordinary, settled home base in fact (here, Florida was undisputed).
- Article 13(b) “grave risk”: an exception to automatic return—return is refused if it would expose the child to a grave risk of harm or grave risk of an intolerable situation.
- “Intolerable situation”: assessed objectively—whether the child should not reasonably be expected to tolerate the situation, not whether the child says he would.
- Reclaiming motion: an appeal within the Court of Session from a Lord Ordinary (first-instance judge) to the Inner House.
- Residual discretion: even where a defence is established, the court may have discretion; but where a grave risk is found, return will ordinarily be inconceivable (as reflected in In re M (Abduction: Rights of Custody)).
5. Conclusion
Petition of DM establishes a clear and practically important rule for Scottish Hague Convention jurisprudence: a child’s expressed willingness to return, or ability to cope, cannot be used to reduce or negate the Article 13(b) “grave risk” assessment, including under the “intolerable situation” limb. Intolerability remains an objective standard anchored in what the child should not reasonably be expected to endure.
On the facts, once the Lord Ordinary’s legal error was corrected, the Inner House held that the combination of instability factors and—above all—the risk of extreme harm if SM completed suicide rendered return intolerable for H as well as B. The outcome—refusal of return for both children—underscores the Convention’s balance: prompt return is the norm, but not at the cost of exposing children to grave risk.