Children’s Views Are Relevant but Not Decisive Across the Article 13(b) Grave-Risk Inquiry

1. Introduction

This appeal concerned a father’s application under article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 for the return of H, then aged 14, from Scotland to the United States. The mother accepted that H and his younger brother, B, had been wrongfully retained in Scotland, but relied on the exception in article 13(b). She argued that return would expose the children to a grave risk of psychological harm or otherwise place them in an intolerable situation.

The principal issue was whether H’s strong wish to return to Florida could be considered when deciding whether article 13(b) was established. The Supreme Court held that a child’s views may be considered across the whole article 13(b) inquiry, including risks of physical or psychological harm. They are not confined to the “intolerable situation” limb and are not determinative.

Despite deciding this point in favour of the father and H, the court refused to order H’s return. On the Lord Ordinary’s factual findings, there was a real risk that the mother might take her own life and that this would cause H extreme psychological harm. Even a relatively small risk of harm of that severity could constitute a “grave risk”. H’s expressed views did not address, and therefore could not mitigate, that critical risk.

A reporting restriction prohibits publication of information likely to identify the children or members of their family in connection with the proceedings.

2. Background and Procedural History

The family had been habitually resident in Florida. During a holiday in the United Kingdom in July 2025, the mother informed the father that she intended to remain in Scotland with H and B. The father did not consent and commenced Hague Convention proceedings.

The mother relied on a combination of circumstances: unstable accommodation, disrupted education, the father’s precarious finances, uncertain healthcare and insurance, alleged domestic abuse, separation from the mother, and the possible deterioration of her mental health. Of central importance was her history of depression and two suicide attempts, including an overdose shortly after the proceedings began.

H was separately represented and consistently expressed a strong wish to return to Florida. He preferred the American education system and stated that uncertain accommodation or separation from the mother would not change his decision.

The Lord Ordinary

The Lord Ordinary accepted that the mother’s refusal to return to the United States was genuine rather than tactical. He also found a real risk of another suicide attempt and accepted that her death would cause both children extreme psychological harm. Nevertheless, after taking H’s age, maturity and wishes into account, he concluded that article 13(b) was not established in relation to H and ordered his return. He refused to order B’s return.

The Inner House

The Inner House held that the Lord Ordinary had erred in taking H’s subjective views into account when deciding whether the situation would be intolerable. Once those views were excluded, it concluded that H faced circumstances which he could not reasonably be expected to tolerate. It therefore refused to order his return.

The Supreme Court

The Supreme Court held that the Inner House had been wrong to exclude H’s views. However, it upheld the refusal of a return order on different grounds: the Lord Ordinary’s findings permitted only one reasonable conclusion, namely that article 13(b) was established.

3. Summary of the Judgment

• A child’s views may be considered when assessing every part of article 13(b), including physical harm, psychological harm and intolerable circumstances.
• Hearing a child does not mean that the court must give effect to the child’s wishes.
• The weight given to the views depends on matters including age, maturity, relevance and whether the views are authentically the child’s own.
• Whether a situation is intolerable remains an objective judicial question, applied to the particular child in the particular circumstances.
• The article 13(b) threshold is binary: a grave risk is either established or it is not. A court should not describe an established defence as merely “borderline” when exercising its residual discretion.
• A real, even if relatively small, risk of a parent’s suicide may amount to a grave risk where its occurrence would cause the child extreme psychological harm.
• The mother’s suicide allegation had to be scrutinised carefully, but the Lord Ordinary had found it genuine and non-tactical.
• H’s stated views did not address how he would be affected if the mother actually died. They therefore could not negate the identified risk of extreme psychological harm.
• The appeal was dismissed and the order refusing H’s return to the United States was affirmed.

4. Analysis

4.1 The governing article 13(b) principles

Article 13(b) permits, but does not require, the requested state to refuse return where the opposing party proves that return would create a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation.

The burden rests on the person opposing return, applying the ordinary civil standard of the balance of probabilities. The court makes a prospective assessment of risk: it need not find that harm will probably occur, but must determine whether the identified risk is sufficiently serious to be characterised as grave.

“Grave” qualifies the risk, but the seriousness of the possible harm affects the necessary probability. A relatively low risk of death or extreme psychological injury may be grave, whereas a greater probability may be required where the anticipated harm is minor.

“Intolerable” means circumstances which the particular child, in the particular situation, should not reasonably be expected to tolerate. The test is objective, but intensely child-specific.

4.2 The child’s voice: relevant throughout, but never automatically decisive

The Supreme Court rejected both the Inner House’s exclusionary approach and the Lord Ordinary’s distinction between the separate limbs of article 13(b). A child may offer relevant evidence concerning physical harm, psychological harm and intolerable circumstances alike.

There is ordinarily a presumption that a child should have an opportunity to be heard in Hague Convention proceedings, unless that would be inappropriate because of age, maturity or the child’s best interests. Giving the child a voice is different from allowing the child to determine the outcome.

The judgment preserves the court’s objective responsibility. A child’s stated willingness to endure a situation does not make objectively intolerable harm tolerable. For example, little or no weight could properly be given to a child’s assertion that they were capable of enduring extreme psychological injury.

4.3 Authenticity and manipulation

The court emphasised that weight depends on whether the views are authentically the child’s own. If manipulation has shaped them, little or no weight should be attached to the affected parts.

The Lord Ordinary had identified evidence pointing both ways but considered that he could not resolve whether the father had influenced H. The Supreme Court held that this was a conclusion open to him in the summary proceedings. However, the unresolved issue necessarily weakened the weight capable of being placed on H’s views.

Courts should use appropriate independent procedures to ascertain children’s views and should do their best, on the available evidence, to determine whether parental influence or prolonged separation has distorted the child’s perception.

4.4 Suicide risk and extreme psychological harm

Allegations that a parent will not return, or may take their own life, cannot simply be assumed to be true under the staged approach sometimes used for disputed domestic-abuse allegations. Such assertions must be scrutinised closely to distinguish genuine vulnerability from tactical manoeuvring.

Here, the Lord Ordinary had found that the mother’s position was genuine, that there was a real risk of suicide and that her death would cause H extreme psychological harm. Those findings made this a paradigm example of a low risk of exceptionally serious harm amounting to a grave risk.

H had said that he would be sad if the mother attempted another overdose and that he would not blame himself. But he had not addressed the possibility that she might die. It would have been inappropriate to require him to contemplate that prospect. His views therefore supplied no evidential basis for concluding that he could reasonably tolerate the resulting harm.

4.5 Cumulative assessment

Article 13(b) required a holistic assessment. In addition to the suicide risk, the Lord Ordinary had found uncertainty concerning accommodation, schooling, healthcare and the father’s finances, together with the emotional consequences of separation from the mother. These factors compounded the psychological risk.

The Supreme Court concluded that the only reasonable result on the findings of fact was that H faced a grave risk of psychological harm which he could not reasonably be expected to tolerate.

4.6 Residual discretion after article 13(b) is established

Article 13(b) formally leaves a discretion to order return even after the exception is proved. The Lord Ordinary said he would have exercised that discretion because the defence was “borderline” and H strongly wished to return.

The Supreme Court held that this reasoning was erroneous. The threshold decision is binary. Once grave risk is established, difficulty in reaching that conclusion does not dilute it. Although the child’s views remain relevant at the discretionary stage, returning a child to face grave and intolerable harm would require the most anxious justification and will ordinarily be inconceivable.

5. Precedents and Authorities Cited

In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] 1 AC 144

This was the principal authority on article 13(b). It established that the provision needs no artificial narrow construction; the burden lies on the opposing party; the standard is the balance of probabilities; and the risk must be grave rather than merely real. It also explained that “intolerable” describes circumstances which the particular child should not reasonably be expected to endure.

It further supplied the staged approach for disputed allegations: assume the allegations are true, ask whether they would create a grave risk, and then examine whether effective protective measures are available. The present judgment clarified that this approach is not suitable for every allegation, particularly an asserted refusal to return or threatened suicide.

In re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51; [2007] 1 AC 619

This authority established the importance of hearing children in Hague Convention proceedings. It recognised children as capable of holding views distinct from those of either parent and created a practical presumption that they should have an opportunity to be heard unless age or maturity makes that inappropriate. The Supreme Court relied on it to reject the proposition that H’s views had to be excluded as a matter of law.

In Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55; [2008] AC 1288

This decision reinforced the relevance of children’s views, particularly in light of article 12 UNCRC. It also endorsed the proposition that, although discretion technically remains after article 13(b) is established, it is ordinarily inconceivable that a court would return a child to face the grave harm or intolerable situation it has identified.

In re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10; [2012] 2 AC 257

This case confirmed that the staged reasoning described in In re E forms part of the general article 13(b) analysis where factual disputes arise. The Supreme Court used it while stressing that the method cannot mechanically be applied to every kind of allegation.

In re R (Children) [2024] EWCA Civ 1296; [2025] Fam 67

This authority required close, reasoned scrutiny where a parent asserts that they will not accompany the child back to the requesting state. Relevant matters include family history, health evidence, the reasons for refusal, possible tactical motivation and the likelihood that the position may change after an order. The Supreme Court expressly approved that approach.

Director-General, Department of Families v RSP [2003] FamCA 623; (2003) 177 FLR 169

The Australian decision demonstrated how courts should approach suicide evidence: concerns about tactical allegations justify careful scrutiny, not disregard of evidence. The Supreme Court adopted that reasoning and added that, once a real suicide risk is established, even a small risk may be grave because of the likely extreme harm to the child.

AD v SD [2023] CSIH 17; 2023 SLT 439

This case described the relationship between risk and protective measures as a delicate balancing exercise. The greater the risk and severity of possible harm, the more effective the proposed protection must be.

Re X (A Child) [2026] EWCA Civ 518; [2026] 2 FLR 270

This authority supported the obligation to assess, so far as the summary procedure permits, whether a child’s views are genuinely their own or have been produced by manipulation.

In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911; In re H-W (Children) [2022] UKSC 17; [2022] 1 WLR 3243; and In re JR123 [2025] UKSC 8; [2025] AC 1256

These appellate authorities were invoked in support of correcting a conclusion where the lower court’s analysis was legally flawed or where only one reasonable conclusion was available on the findings. They supported the Supreme Court’s decision to hold that article 13(b) was established notwithstanding the Lord Ordinary’s contrary conclusion.

In re S (A Child) (Abduction: Article 13(b): Mental Health) [2023] EWCA Civ 208; [2023] 3 FCR 317

This case emphasised that Hague Convention jurisdiction requires a prompt, summary decision and is not a “wait and see” process. It supported the Supreme Court’s decision to determine the case itself rather than order a rehearing.

FPS v SM [2024] CSIH 20; 2025 SC 61

This decision had suggested that Hague Convention proceedings might constitute a “relevant function” under section 6 of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024. The Supreme Court did not resolve that question because no party argued that the provision applied. It rested its conclusion on established case law, while observing that the result was consistent with article 12 UNCRC.

MP v Greece (Application No 2068/24), 9 September 2025

The Strasbourg court held that, in appropriate circumstances, article 8 ECHR places a positive procedural obligation on domestic courts to consider whether children should be heard in international abduction proceedings. The Supreme Court treated this as consistent with the inclusion of children’s views in the grave-risk assessment.

KJ v Poland (Application No 30813/14), 1 March 2016, and MK v Greece (Application No 51312/16), 1 February 2018

These Strasbourg authorities respectively establish that separation from the taking parent does not automatically satisfy article 13(b), and that the expressed wishes of a sufficiently mature child are an important consideration in proceedings affecting that child.

6. Wider Legal Framework

The judgment aligned domestic Hague Convention law with article 12 of the United Nations Convention on the Rights of the Child, which protects a capable child’s opportunity to express views and requires those views to receive due weight according to age and maturity.

It also drew support from article 11(2) of Brussels II Revised and articles 21 and 26 of Regulation (EU) 2019/1111, as well as the HCCH 2020 Guide to Good Practice on article 13(1)(b). None draws a distinction between the forms of harm about which a child may express views.

The status of Hague proceedings under section 6 of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 remains unresolved.

7. Potential Impact

• Broader admissibility of children’s views: Courts may consider a child’s account across every aspect of article 13(b), not merely under a separate objections defence or the “intolerable situation” limb.
• Objective control remains: A mature child’s preference cannot convert grave harm into tolerable harm or displace the court’s independent assessment.
• Greater attention to authenticity: Courts and practitioners will need to examine how the child’s views were obtained and whether parental influence affected them.
• Careful handling of suicide allegations: Such evidence must be closely scrutinised, but genuine risk cannot be discounted merely because tactical claims are possible in other cases.
• Severity affects probability: The judgment strongly confirms that a low probability of catastrophic psychological harm can satisfy article 13(b).
• Limited residual discretion: Although discretion survives after grave risk is proved, ordering return in those circumstances will require exceptional justification.
• Procedural urgency: Appellate courts may determine the case themselves where the findings permit only one conclusion, rather than prolong summary Hague proceedings through a rehearing.

8. Complex Concepts Simplified

Summary return

A Hague Convention return order restores the child to the country of habitual residence so that its courts can resolve long-term welfare or custody issues. It is not itself a final custody decision.

Requested state

The country in which the child is currently located and whose court is asked to order return. Here, that was Scotland.

Grave risk

A risk sufficiently serious to engage article 13(b). The more severe the possible harm, the smaller the probability needed for the risk to be grave.

Intolerable situation

A situation which the particular child, in the particular circumstances, should not reasonably be expected to endure.

Hearing the child

Giving the child an appropriate opportunity to express views. It does not mean that the child chooses the outcome.

Residual discretion

Even after article 13(b) is established, the Convention formally allows a court to order return. In practice, return to face the identified grave harm will rarely, if ever, be justified.

Reclaiming motion

The Scottish procedure by which a decision of the Lord Ordinary is appealed to the Inner House of the Court of Session.

9. Conclusion

In the Petition of DM establishes that children’s views are legally relevant throughout the article 13(b) grave-risk inquiry. The court must listen where appropriate, assess authenticity and maturity, and give the views such weight as their content warrants. It must not, however, surrender its objective responsibility to determine whether the particular child should reasonably be expected to face the identified harm.

The decision also gives important guidance on suicide-related risks: allegations require rigorous scrutiny, but a genuine low risk of parental suicide may constitute a grave risk where the likely consequence for the child is extreme psychological harm. On that basis, H’s wish to return could not overcome the risk established by the factual findings, and the refusal of a return order was affirmed.