Functional Pleading Under the Hague Convention: Misdescription of Removal/Retention and Uncertain Date Do Not Defeat a Return Order

Introduction

This commentary examines the opinion of Lord Braid in HL v (Respondent) [2025] CSOH 100, an Outer House, Court of Session decision concerning a petition under the Child Abduction and Custody Act 1985 (incorporating the Hague Convention on the Civil Aspects of International Child Abduction). The petitioner-father sought the prompt return of T (aged 3½) to Switzerland, where the child was habitually resident until July 2025.

The litigation is unusual among Hague Convention cases because there were already active proceedings in Switzerland addressing custody and contact (paras [6]–[9], [14]). The central issues before the Scottish court were:

• Whether T was wrongfully removed to, or retained in, Scotland (paras [10]–[23]); and
• Whether, if so, the Article 13(b) “grave risk” defence to return had been made out (paras [24]–[43]).

The factual matrix included: the petitioner’s consent to a short holiday to France; the respondent’s mental health crisis and hospitalisation; the maternal grandfather bringing T to Scotland without the petitioner’s knowledge; and the respondent’s subsequent decision not to return T to Switzerland unless compelled (paras [7], [12]).

Summary of the Judgment

Lord Braid held that T had been wrongfully removed or retained contrary to Swiss law and the Hague Convention (paras [18]–[23]) and ordered the child’s return to Switzerland, rejecting the respondent’s Article 13(b) defence (paras [39]–[43]). The court adopted a functional, purposive approach to the pleadings, making four key holdings:

• Wrongful removal and wrongful retention are mutually exclusive “one-off” events, but the precise categorisation or exact date need not be dispositive where it makes no difference to the remedy or prejudice (paras [19]–[21]).
• On the expert evidence and Swiss court orders, any permanent stay by T in Scotland without the father’s consent or Swiss court approval was unlawful under Swiss law (paras [13]–[14], [18]).
• The fact that Swiss courts retained jurisdiction and had made interim measures was irrelevant to whether there had been a wrongful removal/retention (para [22]).
• The respondent failed to demonstrate a grave risk that T would be exposed to physical or psychological harm or placed in an intolerable situation upon return, particularly in light of robust protective measures available in Switzerland and a “soft landing” continuum via existing Swiss proceedings (paras [24]–[26], [39]–[43]).

The case was put out by order to settle the practicalities of return (para [44]).

Analysis

Precedents Cited and Their Influence

• In Re H [1991] 2 AC 476 (HL) and Kilgour v Kilgour 1987 SLT 568:
  The court reaffirmed that wrongful removal and wrongful retention are mutually exclusive single events, not continuing states (para [19]). Re H also anchors the principle that removal/retention is assessed by reference to the child’s cross-border presence, not internal acts, and that the ongoing jurisdiction of the court of habitual residence does not change that analysis (para [22]).
• In Re E [2012] 1 AC 144 (UKSC):
  The leading authority shaping Article 13(b). Lord Braid extracted and applied the core propositions: the defence is exceptional; the risk must be “grave”; the analysis is forward-looking and must take account of protective measures; and the burden is on the respondent on the balance of probabilities (paras [24], [39]–[41]).
• AD v SD 2023 SLT 439 (Inner House):
  The Scottish appellate authority emphasising a nuanced, staged approach to Article 13(b) where allegations of domestic abuse are made—assuming their truth for analytical purposes, then weighing the risk against available protections (paras [25], [39]).
• L v H 2021 SCLR 467:
  Presumption that the courts of the requesting state can protect the child unless compelling evidence shows otherwise (para [26]). This underpinned the court’s confidence in Swiss protective architecture (paras [34]–[36], [41]–[43]).
• In Re IG [2021] EWCA Civ 1123 and In Re C (Children) (Abduction: Article 13(b)) [2018] EWCA Civ 2834:
  Cited as guidance that the court must still undertake an evaluative assessment in the summary Hague process and need not uncritically accept allegations, even while avoiding a full trial of facts (para [37]).
• Re K (1980 Hague Convention: Lithuania) [2015] EWCA Civ 720 and Re C (Article 13(b)) [2021] EWCA 1354:
  Reinforced the forward-looking nature of the grave risk test and the caution against summarily discounting credible allegations, informing the court’s approach to the respondent’s abuse averments (paras [24], [37], [39]–[41]).

Legal Reasoning

1) Wrongful Removal/Retention and Pleading Flexibility

The petitioner pled wrongful retention “on 5 July 2025” (paras [11], [19]). Accepting the Re H/Kilgour distinction, Lord Braid concluded that while mislabelling is legally significant in principle, it was not determinative here. The evidential core was that:

• T’s habitual residence was Switzerland and the petitioner held and exercised rights of custody at the material time (para [10]).
• Swiss law (Swiss Civil Code, Article 301a) required either joint parental consent or a court order for changing a child’s place of residence; this requirement extended to international relocations and, per the expert, even temporary removals (paras [13], [18]).
• The Swiss court’s own interim judgments expressly recorded the lack of consent or authorisation for a permanent move to Scotland, indicating breach of Article 301a (para [14]).

On that footing, the court found that T’s presence in Scotland with the mother’s stated intention to remain was unlawful under Swiss law and therefore a wrongful removal or retention within Article 3 of the Convention (paras [18]–[21]). Crucially, Lord Braid held that where it made no practical difference to the return remedy, the court should not refuse to order return on a technical pleading point about whether the wrong was a removal or a retention, or about the exact date, especially where the petitioner may not know the precise circumstances (para [21]). This purposive approach aligns with the Convention’s object of prompt return and avoids rewarding obfuscation by abducting parents.

The court also rejected the argument that Swiss courts’ continuing jurisdiction or recent orders prevented a finding of wrongful retention/removal (para [22]). Re H governs: the cross-border fact of removal/retention controls, and foreign court activity does not immunise an otherwise wrongful act.

2) Article 13(b): A Nuanced, Forward-Looking Risk Analysis Informed by Protective Measures

The respondent alleged a sustained history of physical and emotional abuse by the petitioner, as well as anxiety and possible PTSD exacerbated by his controlling and threatening behaviour (paras [27]–[31]). The petitioner denied the allegations, pointed to compliant history with orders, professional observations of positive interactions with T, and the availability of protection and support in Switzerland (paras [32]–[36]).

Applying Re E and AD v SD, Lord Braid:

• Assumed for the analytical stage that the core allegations could be true, noting there appeared at least a “kernel of truth,” including abusive WhatsApp messages and prior Swiss protective orders (para [39]).
• Distinguished between the relatively low future risk of renewed physical violence (given separation) and a greater risk of psychological harm via threatening communications or financial control affecting the respondent and indirectly T (para [40]).
• Balanced that risk against available protections in Switzerland: rapid “superprovisional” restraining orders; enforceable sanctions under Article 292 of the Swiss Criminal Code; police involvement for persistent non-compliance; potential funding support for the respondent’s legal costs; and the involvement of child protection authorities (paras [34], [36], [40]).
• Found the respondent’s current medical evidence insufficient to show that return would create a grave risk to T via her mental health (no clear diagnosis; limited treating evidence; access to treatment in Switzerland; her recent willingness to return; ongoing abstinence and stabilisation; para [41]).
• Emphasised the “soft landing” created by existing Swiss proceedings and the Swiss judge’s structured plan to govern T’s arrangements immediately upon return, including resumption of prior custody and contact regime and monitoring by the child protection office (para [42]).

Overall, the risks identified (physical, psychological, or situational) were either insufficiently grave or adequately mitigable by Swiss legal and welfare protections. The Article 13(b) defence failed (para [43]).

Impact and Significance

This decision has several forward-looking implications for Hague Convention practice in Scotland and beyond:

• Functional Pleading and Evidential Pragmatism:
  The Outer House confirms that misdescription as “removal” versus “retention” and uncertainty as to the precise date will not defeat a return where the unlawfulness is established and there is no prejudice. This discourages technical ambushes and aligns with the Convention’s prompt-return objective (paras [19]–[21]).
• Coordination with Ongoing Foreign Proceedings:
  The court underscores that contemporaneous foreign proceedings may deliver a “soft landing,” preserving child welfare via immediate, concrete protective measures and continuity of oversight (paras [14], [42]). Scottish courts can confidently order return when the requesting state’s courts are already actively managing the case.
• Reaffirmation of Protective-Measure Presumption:
  Consistent with L v H, absent compelling contrary evidence, the courts will assume that the requesting state can and will protect the child (paras [26], [40]–[43]). Respondents must therefore do more than show personal hardship; they must link conditions on return to a grave risk to the child that local safeguards cannot adequately mitigate.
• Swiss Law Interface:
  The decision gives clear operational content to Swiss Civil Code Article 301a in a Hague context: changing a child’s habitual residence abroad requires joint consent or a court order; absent that, permanence in the new state is unlawful—even where an initial trip began as a short holiday or emergency placement (paras [13], [18]).
• Evidence Standards in Summary Hague Proceedings:
  While courts avoid mini-trials, they will still undertake an evaluative assessment of allegations and the available objective material (professional reports, prior orders, expert evidence), as reflected by the treatment of the respondent’s medical letters and the childcare centre reports (paras [31], [33], [37], [39]–[41]).

Complex Concepts Simplified

• Habitual Residence:
  The country in which the child ordinarily lives. It anchors the primary jurisdiction for custody decisions and the baseline for a Hague return analysis. Here, T was habitually resident in Switzerland (para [10]).
• Wrongful Removal vs Wrongful Retention:
  Both are one-off events (not continuing). Removal occurs when a child is taken across a border without consent or authorisation; retention occurs when a child, lawfully abroad for a time (e.g., a holiday), is not returned at the agreed time or the custodian later forms an intention to remain abroad without consent or court order (paras [19]–[21]).
• Rights of Custody:
  Broadly include rights to determine the child’s residence. Under Swiss law (Art 301a), changes of a child’s habitual residence require joint parental consent or a court order (paras [13], [18]).
• Article 13(b) (Grave Risk Defence):
  A narrow exception to return. The respondent must prove that return exposes the child to a grave risk of physical or psychological harm or an intolerable situation. The court looks forward and considers whether protective measures in the requesting state can sufficiently reduce the risk (paras [24]–[26], [39]–[43]).
• Protective Measures and “Soft Landing”:
  Orders and services in the requesting state that can shield the child (and primary carer) on return, such as restraining orders, child protection oversight, supervised contact, and immediate judicial case management (paras [34]–[36], [42]).
• Superprovisional Measures (Swiss Law):
  Emergency orders available in Switzerland, often granted swiftly and ex parte, enforceable with criminal sanctions for breach (Art 292 Swiss Criminal Code) and police involvement for persistent non-compliance (para [34]).
• Curator (Swiss Child Protection Authority):
  An appointed official tasked with monitoring parental health and interactions for the child’s safety; part of the protective framework awaiting the child upon return (para [36]).

Conclusion

HL [2025] CSOH 100 is a significant Outer House judgment for practitioners of international child abduction law. It crystallises a functional approach to pleadings under the Hague Convention: even though wrongful removal and retention are conceptually distinct, courts should not withhold the return remedy on technicalities where the evidence establishes an unlawful cross-border displacement and the categorisation/date is immaterial to outcome or prejudice (paras [19]–[21]). It also provides a careful, Re E-compliant template for assessing the Article 13(b) defence: assume the truth of abuse allegations for analytic purposes, weigh the future risk to the child, and then test whether the requesting state’s protective measures will sufficiently neutralise that risk (paras [39]–[43]).

The judgment further confirms that the ongoing jurisdiction and active engagement of the foreign court do not negate a finding of wrongful removal/retention; rather, they typically enhance the feasibility and safety of return by ensuring a soft landing (paras [22], [42]). In this case, the well-developed Swiss protective apparatus, combined with pre-existing proceedings and child welfare mechanisms, meant the respondent could not show a grave risk to T on return. The court therefore concluded that T must be returned to Switzerland, with the logistics to be arranged (paras [43]–[44]).

Key takeaways:

• Do not expect technical pleading arguments about “removal vs retention” or precise dates to defeat return where the legal consequences are the same and there is no prejudice.
• Lead focused foreign law evidence on rights of custody and relocation rules; it can be decisive in establishing wrongdoing under Article 3.
• Article 13(b) remains exceptional; respondents must link concrete, forward-looking risks to the child to robust proof and also confront the reality of protective measures available on return.
• Where foreign proceedings are already active, Scottish courts can rely on a ready-made protective package to secure the child’s welfare upon return.

In short, Lord Braid’s judgment meaningfully advances a purposive, child-focused and practically oriented application of the Hague Convention in Scotland, ensuring that substance prevails over form and that international comity and child protection work hand in hand.