Continuing Wrongful Retention and Limits on Article 13(b) Defences under the Hague Convention: Commentary on HL v LL [2025] CSIH 32

1. Introduction

This commentary analyses the decision of the Extra Division of the Inner House of the Court of Session in Petition of HL for Orders under the Child Abduction and Custody Act 1985 against LL, reported as [2025] CSIH 32. The case arises under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the 1980 Convention”), as incorporated into UK law by the Child Abduction and Custody Act 1985.

The dispute concerns a young child, T (aged 3 years 9 months), habitually resident in Switzerland, whose mother (LL) took him to France with the father’s (HL’s) consent for a short holiday and then, following a serious mental health crisis, arranged for her father to take T from France to Scotland. T has remained in Scotland since 5 July 2025.

The father petitioned the Scottish court for T’s summary return to Switzerland. The Lord Ordinary (first‑instance judge) granted that order. The mother reclaimed (appealed) to the Inner House, challenging:

whether Article 3 of the 1980 Convention (wrongful removal or retention) was engaged at all; and
whether, if so, her defence under Article 13(b) (grave risk of harm or intolerable situation) had been wrongly rejected.

The Inner House, in an Opinion delivered by Lady Wise (with Lord Clark and Lady Carmichael concurring), refused the reclaiming motion and upheld the return order, varying only the date for T’s return.

The case is significant because it:

clarifies how wrongful retention operates as a continuing breach when a time‑limited consent is exceeded and the child is then moved between states;
reaffirms that removal and retention are mutually exclusive concepts, yet are treated identically in terms of the Convention’s remedy;
tightens the approach to Article 13(b) defences, especially where there is a “ready‑made package” of protective measures in the state of habitual residence; and
articulates an important principle that a taking parent cannot generally manufacture “grave risk” by unilaterally surrendering stable accommodation in the state of habitual residence.

2. Background and Procedural History

2.1 Family and factual background

T was born in March 2022 in Switzerland and lived there with both parents until they separated in April 2024. After separation, T lived with his mother, LL, while HL exercised contact in terms of Swiss court orders. In June 2025, the Swiss court ordered both parties to undergo random blood tests owing to their shared history of significant alcohol dependence. LL also suffered from serious liver damage and mental health difficulties.

On 10 June 2025, the Swiss court made orders regulating T’s care: T was to live with LL, and HL was granted contact, including a period of unsupervised contact. On HL’s written consent, LL took T from Switzerland to France for a short holiday, 26–29 June 2025.

While in France, LL experienced a serious mental health crisis and was hospitalised. Her father flew to France, and with LL’s written consent, removed T to Scotland on 5 July 2025 so that she could recuperate. LL herself returned to Switzerland for hospital treatment, remaining there until about 15 July, when she then travelled to Scotland to rejoin T.

2.2 Swiss proceedings

Prior to the Scottish petition, family proceedings were already ongoing in the Tribunal de Sion in Switzerland concerning T’s care, contact, and financial arrangements. The Swiss court was fully apprised of both parents’ alcohol issues and had previously granted various protective measures in respect of LL.

In July 2025, HL applied urgently to the Swiss court for transfer of custody in light of LL’s hospitalisation. On 14 July 2025 the Swiss court refused to transfer custody, noted that the overall circumstances were unclear, and reminded the parties of the terms of Article 301a(2) of the Swiss Civil Code, which prohibits changes in a child’s place of residence outside Switzerland without the other parent’s consent or a court decision.

Later, on 18 September 2025, the Sion court made further detailed orders:

confirming that T would remain in LL’s de facto care in Switzerland;
regulating HL’s contact; and
setting out financial arrangements, including maintenance (aliment) and the possibility of provisional legal cost funding (provisio ad litem).

2.3 Scottish Hague petition

On 15 August 2025, HL presented a petition under the 1980 Convention for T’s summary return to Switzerland. On 30 October 2025, the Lord Ordinary issued an Opinion ordering T’s return. On 11 November 2025, a formal interlocutor set 5 December 2025 as the return date.

LL appealed to the Inner House (a “reclaiming motion”), arguing:

that there was no wrongful removal or retention within Article 3, given the scope of HL’s custody rights under Swiss law; and
that the Lord Ordinary erred in concluding that the Article 13(b) grave risk defence was not established.

By the time of the appeal, LL had given notice (she claimed) to terminate the tenancy of the family home in Switzerland and asserted that she had no accommodation or sufficient financial means there.

3. Summary of the Judgment

3.1 Outcome

The Inner House refused LL’s reclaiming motion and affirmed the Lord Ordinary’s decision that:

T had been wrongfully retained away from Switzerland within the meaning of Article 3 of the 1980 Convention; and
LL had not made out the defence under Article 13(b).

The court adhered to the order for T’s return to Switzerland, substituting a new date of 5 January 2026 for the return, as the original date had passed.

3.2 Key holdings

Wrongful retention as a continuing breach:
Once the time‑limited consent (26–29 June 2025) expired, T’s continued presence abroad became a wrongful retention. This wrongful retention began in France on 30 June 2025 and continued when T was taken to Scotland on 5 July 2025. The act of bringing T to Scotland without HL’s consent compounded the existing breach of HL’s custody rights.
Mutually exclusive removal and retention, but identical effect:
In line with earlier authority, wrongful removal and wrongful retention are mutually exclusive concepts, but are treated equally under the Convention: either suffices to trigger a return obligation.
No need for a hyper‑precise retention date in this case:
Although the Lord Ordinary did not select a single precise date for the wrongful retention, that was not a material error. On the facts, the latest possible wrongful date (5 July 2025) was clear, and T’s habitual residence remained Switzerland throughout. The absence of a pinpoint date made no difference to the outcome.
Scope of Swiss custody rights under Article 301a of the Swiss Civil Code:
On unchallenged Swiss expert evidence, HL’s joint parental responsibility included a right of custody in Hague terms, and his consent was “absolutely required” both for:
- temporary removal of T from Switzerland; and
- T’s continued retention abroad.
Irrelevance of the mother’s later intention to relocate:
LL’s argument that she only formed an intention to live in Scotland permanently in October 2025 was irrelevant. Once the permitted holiday period ended without T’s return, she was already acting in breach of Article 301a(2). It is wrong, the court stated, not only to change a child’s residence without consent, but also to take steps towards such a change without that consent.
High threshold for Article 13(b) and weight of foreign protective measures:
Adopting the approach in Re E and AD v SD, the Inner House confirmed that:
- the court must assume the truth of the mother’s allegations and then evaluate whether they create a grave risk to the child on return; and
- any such risk is to be weighed against specific, effective protective measures available in the state of habitual residence.
In this case, Switzerland offered a “ready‑made package” of measures for T and LL, including protective orders, financial support mechanisms, and an advanced set of child welfare proceedings. This rendered the Article 13(b) defence unsustainable.
Accommodation and financial hardship cannot be self‑created grounds for Article 13(b):
The court held that it would generally be inappropriate to allow a parent to unilaterally give up secure accommodation in the state of habitual residence and then rely on that as part of an Article 13(b) grave risk defence. Swiss maintenance and cost‑funding mechanisms, and the oversight of the Swiss court, were sufficient to negate the alleged financial‑based risk.
Return order is about jurisdiction, not merits:
The decision emphasises that the Scottish court is determining jurisdiction under the Convention, not making welfare decisions about T’s long‑term care. Those issues belong to the Swiss court, already seised and well advanced in its consideration of the case.

4. Analysis of the Court’s Reasoning

4.1 Precedents and authorities cited

4.1.1 In Re H (Abduction: Custody Rights) [1991] 2 AC 476

This House of Lords decision is foundational in Hague jurisprudence. Its chief relevance here lies in the statement (relied on both by the Lord Ordinary and the Inner House) that wrongful removal and wrongful retention are mutually exclusive – an act cannot simultaneously be both. Nonetheless, either category engages Article 3.

The Inner House accepts this conceptual exclusivity (see [20]) but stresses that, in practical Convention terms, once either wrongful removal or wrongful retention is established, the court’s obligation to order return arises in the same way.

4.1.2 Kilgour v Kilgour 1987 SLT 568

Kilgour is a Scottish authority reinforcing the mutual exclusivity of removal and retention under the Convention, echoed again in this case as a matter of doctrinal clarity. The Inner House uses it to underline that each case must be analysed as one or the other, even if, as here, the practical consequences are indistinguishable.

4.1.3 In Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144

The leading UK Supreme Court authority on Article 13(b), Re E establishes:

the high threshold for the grave risk defence;
the need to assume the truth of the abductor’s factual allegations; and
the requirement to consider protective measures in the requesting state capable of sufficiently mitigating any risk.

The Inner House expressly adopts this framework (via the Lord Ordinary’s application of it at first instance and its own endorsement at [23] and [28]). It emphasises that even where there is a real risk of domestic abuse, effective measures in the state of habitual residence may neutralise the risk below the “grave” threshold.

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

AD v SD is a recent Scottish Inner House decision applying Re E in a domestic abuse context. It highlights the “delicate balancing” required between gravity of risk and adequacy of protective measures (para [27] of that case).

In HL v LL, the court cites AD v SD repeatedly:

as an exemplar of the high threshold for Article 13(b);
for the methodology of evaluating risk and protection; and
as a contrast: in AD v SD there were persistent breaches of protective orders, whereas HL had complied with “almost all” Swiss orders, making the Swiss protective framework more reliable.

4.1.5 In Re C (Children) [2019] AC 1

Re C concerns “repudiatory retention” – where a taking parent with initial consent later decides not to return the child. The Supreme Court held that:

a precise date on which retention becomes wrongful is not always ascertainable or necessary; and
courts should focus on whether, by the material time, there has been a sufficient repudiation of the other parent’s rights.

In HL v LL, counsel for HL relied on Re C more generally for the proposition that failure to identify a single exact date of retention is not necessarily fatal. The Inner House accepts this, noting that in any event, the time window in this case (29 June–5 July) was short, and T’s habitual residence had not changed.

4.1.6 In Re H (A Child) [2019] 3 WLR 1143

This more recent English Court of Appeal case (Moylan LJ) is cited for the notion that a wrongful retention can begin in one state and continue in another, including movement from a non‑contracting to a contracting state.

The Inner House uses Re H (A Child) to support its core analytical move: that wrongful retention beginning in France on 30 June 2025 (once the holiday consent expired) continued upon T’s arrival in Scotland on 5 July 2025 ([18]). The wrong is conceptualised as a continuing breach of custody rights.

4.1.7 AR v RN [2015] UKSC 35; [2015] SC (UKSC) 129

AR v RN is a leading habitual residence case. It confirms that:

habitual residence depends on the degree of integration of the child in a social and family environment; and
parental intention to relocate is a relevant but not decisive factor.

The Inner House invokes AR v RN primarily to distinguish the present case: issues around when a child’s habitual residence might change (and the role of a parent’s changed intention) arise only where a change of habitual residence is pled. Here, LL never pled that T’s habitual residence had moved from Switzerland to Scotland. Therefore, her claim that she only intended permanent relocation in October 2025 was legally irrelevant ([21]).

4.1.8 D v D 2002 SC 33

D v D concerned the assessment of habitual residence where there was no extraneous evidence to resolve conflicting affidavits. The Inner House there cautioned against making factual findings where evidence is too thin.

LL sought to apply this principle to argue that no finding should have been made about her Swiss accommodation. The Inner House rejects that application as misplaced ([29]) because:

here, there was a bundle of documentary material, not an evidential vacuum; and
the lease terms (requiring 3 months’ notice by registered post) were before the court, with no documentary proof of any such notice being given.

Thus, the Lord Ordinary was entitled to find that LL still had accommodation in Switzerland at the relevant time.

4.2 Wrongful retention and the role of Swiss law

4.2.1 Article 3 of the 1980 Convention

Article 3 defines wrongful removal or retention by reference to:

the law of the state of habitual residence immediately before the removal or retention; and
whether rights of custody under that law were being exercised or would have been but for the removal/retention.

The Inner House reduces the Convention question in this case to two straightforward propositions ([19]):

Where was T habitually resident when the relevant act occurred? – Answer: Switzerland.
Was HL then actually exercising rights of custody (or would he have done so but for the act)? – Answer: yes.

4.2.2 Article 301a of the Swiss Civil Code

The pivotal Swiss provision, Article 301a, provides (in summary) that:

parents with joint parental responsibility have the right to decide on the child’s place of residence;
if one wishes to change the child’s place of residence:
- to a place outside Switzerland, or
- in a way that seriously impacts the other parent’s ability to exercise parental responsibility or contact,
that parent must obtain either the other parent’s consent or a court/authority decision.

LL’s core argument was that:

Article 301a(2) only governs a change of residence, not a short holiday; and
since she supposedly only decided to change T’s residence in October 2025, no breach occurred in June/July.

The Swiss expert, Ms Berger, rejected that narrow reading. She opined that:

HL’s parental authority amounted to rights of custody in Hague terms;
his consent was “absolutely required” both for:
- T’s temporary removal from Switzerland; and
- T’s continued retention abroad.

The Inner House accepts that interpretation wholesale. Critically, it emphasises that even if the first step is only a time‑limited holiday, once the agreed period expires, continued retention abroad without consent is a breach of Swiss custody rights ([18], [21]).

4.3 When did the wrongful retention begin?

The Lord Ordinary criticised HL’s pleadings for having “possibly somewhat unwisely” pinned the alleged wrongful act on 5 July 2025, when T was brought to Scotland. The Inner House takes a more forgiving view of the pleadings ([20]) but refines the analysis:

HL’s consent for the trip expired at midnight on 29 June 2025;
from 30 June 2025, T’s continued presence in France was, under Swiss law, without HL’s consent and therefore wrongful retention away from Switzerland; and
that wrongfulness “continued and so existed from the moment of [T’s] arrival in Scotland” ([18]).

Therefore:

the “first” wrongful act was the over‑holding of the agreed holiday period (retention);
the movement to Scotland was an additional act compounding the breach, but conceptually the case remains one of wrongful retention, not removal.

4.4 Must a precise retention date always be identified?

LL argued that because HL pleaded 5 July 2025 as the date of wrongful retention, he was bound by that date, and the Lord Ordinary erred in suggesting that retention might have occurred on a later, unspecified date.

The Inner House responds in two key ways:

The relevant period was short and habitually resident status was clear.
The potential dates (30 June–5 July) all fell within a period when T was undisputedly habitually resident in Switzerland. On any of these dates, HL was exercising rights of custody.
The precise date did not affect the legal analysis or the outcome.
Drawing on Re C, the court accepts that there can be cases where a precise date is either indeterminable or unnecessary. Here, whether the date was 30 June, 5 July, or a subsequent date did not affect:
- the answer to the habitual residence question; or
- the conclusion that HL’s custody rights were being breached.

The court nonetheless clarifies that, properly analysed, the wrongful act in this case occurred no later than 5 July 2025. It would “have been better” for the Lord Ordinary expressly to state that ([22]), but any failure to do so was not material.

4.5 Habitual residence and the irrelevance of later relocation intention

LL’s contention that she intended only a temporary stay in Scotland until about October 2025, when she allegedly decided to relocate permanently, was central to her argument that Article 301a(2) was not engaged earlier.

The Inner House dismisses this argument ([21]):

No case was advanced that T had acquired habitual residence in Scotland at any time.
Therefore, the AR v RN-type analysis of evolving parental intentions leading to a change of habitual residence simply does not arise.
If it is wrong, as Article 301a(2) makes clear, to change a child’s residence without the other parent’s consent, it is “clearly wrong also” to:
“take steps … without such consent that could bring about that change.”

This is an important clarification: the Convention does not wait for the full crystallisation of a permanent residence decision. Acts taken in the direction of an unauthorised relocation may themselves amount to wrongful retention once they exceed the scope of any existing consent.

4.6 The Article 13(b) grave risk defence

4.6.1 Legal framework

Article 13(b) allows (but does not oblige) the requested state to refuse return if:

“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.”

Following Re E and AD v SD, the Inner House reaffirms:

the burden of proof lies entirely on the abducting parent (here, LL);
the court must, unless the allegations are plainly insubstantial, assume their truth for the purpose of risk assessment; and
the court must carry out a balancing exercise between:
- the nature and severity of the risk; and
- the availability and effectiveness of protective measures in the requesting state.

4.6.2 Domestic abuse, mental health, and alleged financial abuse

LL advanced a multi‑faceted Article 13(b) case, based on:

allegations of historical physical abuse by HL (one specific incident, and general allegations);
more recent controlling, threatening, and abusive communications from HL;
claims of financial control and abuse, including partial withholding of maintenance payments; and
the fragility of her mental and physical health, including liver cirrhosis and recent psychiatric hospitalisation.

The Lord Ordinary accepted that there was a real (though small) risk of physical abuse and a more significant risk of psychological abuse through controlling communication and finances. He also accepted that this could indirectly impact T, given T’s dependence on LL. However, he found that:

HL’s compliance with protective orders (prior to their recall) and with Swiss court processes generally showed a capacity to adhere to judicial constraints;
Swiss law provides robust protective measures, including restraining orders, contact regulation, and sanctions for breaches; and
LL’s health had improved considerably by the time of the Scottish petition, and her prognosis, with compliance with medical advice (including alcohol abstinence), did not indicate a grave, unavoidable risk to T on return.

The Inner House finds no error of law in this assessment ([28]). It stresses that Article 13(b) is not a mechanism for pre‑empting or supplanting the welfare decisions of the court of habitual residence, especially when that court is already actively managing the case and has ordered specific protective mechanisms to be in place from the moment of return.

4.6.3 Accommodation and the “self‑created risk” principle

A key plank of LL’s 13(b) case was that she now had no accommodation in Switzerland, having told her landlord she would vacate the house. This, she contended, created an intolerable or gravely risky situation for T on return, particularly given the alleged financial abuse.

The Inner House decisively rejects this argument:

The lease documentation before the court (indefinite term; three months’ notice by registered post) showed no written notice had been vouchered; the Lord Ordinary was entitled to find that LL had accommodation at the relevant time ([29]).
More generally, even if LL has now surrendered the tenancy and the property has been re‑let, the court holds:
“generally it would be inappropriate to permit a litigant … to decide unilaterally to give up settled accommodation in the state of habitual residence and pray that in aid of an article 13(b) defence.”
([29])

This is an important new clarifying principle: parents cannot deliberately undermine their own material position in the state of habitual residence and then invoke the resulting hardship as a basis for refusing a Convention return.

4.6.4 Financial arrangements and litigation costs

LL pointed to alleged financial abuse and uncertainty about funding litigation in Switzerland, arguing these were relevant to the grave risk assessment.

The court acknowledges that HL did partially withhold maintenance in August and September 2025, contrary to the Lord Ordinary’s broad statement that he had complied with “all” orders. However:

the shortfall was relatively modest compared with the overall maintenance due;
HL had provided explanations and subsequently made payment; and
this isolated lapse did not undermine the general picture of compliance ([30]).

On legal costs, the court notes two relevant Swiss mechanisms ([31]):

Provisio ad litem – an order compelling one party to advance funds for the other’s legal costs, which had already been granted in LL’s favour in March 2025; and
State-funded legal aid, available in principle.

The fact that the Swiss court had reserved the question of costs at the September 2025 hearing did not mean that effective assistance was unavailable. These mechanisms are themselves part of the protective measures landscape that must be factored into the Article 13(b) analysis.

4.7 Jurisdictional nature of the Hague decision

At [32], the Inner House reiterates a central structural feature of the 1980 Convention:

“the child's return to Switzerland is ordered so that the state of his habitual residence can determine the dispute about his care and upbringing.”

The Scottish court has decided only:

that HL’s custody rights were breached by T’s wrongful retention; and
that no defence under Article 13(b) has been made out.

Questions such as:

where T should live long term;
what contact arrangements are appropriate; and
whether LL should ultimately be permitted to relocate with T to Scotland,

remain matters for the Swiss court, which is “quite far advanced” in dealing with them.

5. Complex Concepts Explained

5.1 Habitual residence

Habitual residence is not a formal status like domicile. It is a factual concept focusing on where the child is truly “at home” – integrated into a social and family environment. Factors include:

length and stability of the child’s stay;
family and social relationships;
schooling or nursery attendance; and
the intentions of the parents, although these are only one element.

In this case, LL conceded that T was habitually resident in Switzerland throughout the relevant period up to at least 5 July 2025, and she did not claim that T had since become habitually resident in Scotland. This made the Article 3 analysis relatively straightforward.

5.2 Wrongful removal vs wrongful retention

Under the 1980 Convention:

Wrongful removal occurs when a child is taken from the state of habitual residence to another state in breach of custody rights.
Wrongful retention occurs when a child is initially lawfully in a state (often because the left‑behind parent consented), but is kept there beyond the permitted period or in repudiation of those rights.

Removal and retention are mutually exclusive labels, but the legal consequence is the same: if the act is wrongful under Article 3 and no defence applies, the court must order the child’s swift return.

5.3 Article 13(b): “grave risk” and “intolerable situation”

Article 13(b) is a narrow exception to the general rule of prompt return. It is not enough to show that returning the child would:

be difficult;
cause upheaval or distress; or
reintroduce the child into an environment where there has been some past conflict.

The risk must be grave, and the resulting situation must be truly intolerable – a high bar. The court must also consider whether:

steps can be taken in the state of habitual residence to protect the child and primary carer;
for example, protective orders, supervised contact, financial support, or restrictions on communication.

Where effective protective measures exist, even serious domestic abuse may not justify refusal of return if the risk can be sufficiently mitigated.

5.4 Provisio ad litem

Provisio ad litem is a Swiss (and broader civilian) mechanism by which a court can order one party (often the financially stronger spouse) to advance funds to the other to cover legal costs in ongoing proceedings.

Its availability is relevant in Hague cases because:

it can ensure that the returning parent is able to participate effectively in the foreign proceedings shaping the child’s future;
thereby reducing the risk that the parent will be disadvantaged or silenced in the court of habitual residence.

5.5 The distinction between jurisdiction and welfare

Hague Convention proceedings are jurisdictional: they decide which country’s courts should make welfare decisions. They do not decide:

where the child will live long term;
who should have custody or contact; or
what precise arrangements best serve the child’s welfare.

Those issues are reserved for the court of habitual residence after the child’s return. This distinction underpins the Inner House’s insistence that Switzerland, not Scotland, is the appropriate forum to determine T’s long‑term interests.

6. Impact and Significance

6.1 Clarifying continuing wrongful retention across borders

The decision firmly embeds the principle, drawn from In re H (A Child), that wrongful retention can begin in one state and continue seamlessly in another. Where:

a child is taken abroad with time‑limited consent;
that consent expires; and
the child is thereafter moved to a third state without consent,

the wrong is characterised as a continuing breach of custody rights. This has practical importance:

left‑behind parents do not lose their Hague remedy simply because the child is relocated through multiple states after the expiry of consent; and
courts in the final destination state may treat the case as one of wrongful retention anchored in the original state of habitual residence.

6.2 Precision in pleading and the materiality of dates

The Inner House’s approach reduces scope for technical challenges based on minor pleading imperfections where:

the timeframe of possible wrongful acts is short;
habitual residence is not disputed; and
the same legal consequences follow regardless of which date in that short window is adopted.

While good practice remains to identify the alleged wrongful date clearly, this judgment confirms that over‑rigidity is unwarranted where no prejudice results and the substantive Article 3 criteria are clearly met.

6.3 Strong message on Article 13(b) and “self‑created” hardship

By holding that litigants cannot generally rely on their own decision to surrender accommodation in the state of habitual residence as evidence of “grave risk”, the court:

closes off a potential avenue of strategic behaviour by abducting parents; and
underscores that Article 13(b) is not to be used to reward parents who take unilateral steps that deepen their dependence on the requested state.

Future Article 13(b) cases in Scotland are likely to cite this judgment whenever a parent claims that:

they have no home, employment, or financial base in the requesting state; but
those conditions are, at least partly, the result of choices made after the wrongful removal or retention.

6.4 Weight accorded to foreign protective measures and advanced proceedings

The court repeatedly stresses the significance of:

the detailed, concrete protective measures available in Switzerland; and
the fact that the Swiss proceedings concerning T are well advanced.

This reinforces a line of authority (including Re E and AD v SD) that:

courts should give considerable weight to what the foreign court is already doing to protect the child and the primary carer; and
the more concrete and credible those foreign measures are, the harder it is to establish an Article 13(b) defence.

6.5 Harmonisation with UK and international Hague jurisprudence

The reasoning in HL v LL harmonises Scottish law with:

English and Welsh case law on continuing wrongful retention and repudiatory retention (Re C, Re H (A Child)); and
UK Supreme Court case law on habitual residence and the Article 13(b) defence (AR v RN, Re E).

This continuity serves the broader Convention goal of predictability and uniformity in cross‑border child abduction responses.

7. Conclusion

HL v LL [2025] CSIH 32 is a significant Inner House decision refining key aspects of Hague Convention practice in Scotland. It clarifies that:

where a child is kept abroad beyond a time‑limited consent, wrongful retention begins when that consent expires and continues even if the child is moved to another state;
the conceptual distinction between wrongful removal and wrongful retention should not distract from the Convention’s core concern: whether rights of custody under the law of the habitual residence have been breached;
in the absence of a pleaded change of habitual residence, a taking parent’s later intention to settle permanently abroad is irrelevant to whether Article 3 is engaged;
Article 13(b) remains a narrow and exceptional defence, particularly where there is a robust framework of foreign protective measures and advanced proceedings in the state of habitual residence; and
parents cannot ordinarily rely on self‑inflicted hardship, such as abandoning accommodation in the habitual residence, to establish a grave risk defence.

Most importantly, the decision reaffirms the fundamental Hague Convention principle that the forum for welfare decisions is the child’s state of habitual residence – here, Switzerland. The Scottish court, confined to jurisdictional analysis under the Convention, correctly ordered T’s return so that the Swiss court – already deeply engaged with the family’s circumstances – can determine his long‑term future.