New Precedent on Protective Assessments in International Child Abduction Cases: Balancing Grave Risks and Protective Measures

Introduction

The judgment under review, delivered by Lady Carmichael at the Outer House of the Scottish Court of Session on 11 March 2025, addresses a contentious child custody dispute arising under the Child Abduction and Custody Act 1985. This case involves the petitioner (the father) seeking an order for the return of his nearly two-year-old son to France, juxtaposed with the respondent (the mother) arguing that returning the child would expose him to grave risks of physical and psychological harm. The background of the dispute centers on the period of habitual residency in France, where both parents resided with their child, and the mother’s subsequent decision to retain the child in Scotland under circumstances complicated by allegations of domestic abuse. With detailed evidence, including affidavits, audio recordings, and text messages, the judgment weighs the risks to the child alongside the adequacy of the protective measures available in France.

Summary of the Judgment

The Court found in favor of the mother by exercising its discretion not to return the child to France. Central to the decision was the finding that the child, Adam, faces a grave risk of physical or psychological harm if returned. The judgment emphasizes that the mother's evidence, notably her detailed accounts of sustained physical, verbal, and sexual abuse by the father, forms a strong prima facie case. The court applied a two-stage assessment framework: first, determining whether the alleged facts, even if disputed, establish a possibility of grave risk, and second, evaluating the available protective measures that might mitigate that risk. Given the cumulative impact of the abuse allegations and the limitations of protective measures available in France (especially in the immediate period upon her return), the court concluded that it is in the best interests of the child not to order his return.

Analysis

Precedents Cited

The Court made specific references to earlier decisions and legal authorities to fortify its reasoning:

• In re E (Children) [2012] 1 AC 144: This case was pivotal in establishing that Article 13(b) of the Hague Convention is to be applied with a broad, plain meaning. The judgment reaffirms that the risk under discussion is “grave” in nature and that evidentiary thresholds should be considered with due regard to the summary procedures typical in Hague Convention cases.
• AD v SD 2023 SLT 438: The Court referred to this decision to illustrate that the subjective fear of harm by a parent, even if based on their own anxieties, must be assessed in terms of the actual risk to the child upon return. Such references serve to demonstrate that prior case law supports the necessity of safeguarding the child from environments where abuse may continue or escalate.
• In re B (Children) [2022] 3 WLR 1315: The cumulative effect of multiple allegations and strands of evidence was stressed in this precedent, which the Court applied to underline that even when multiple instances of abuse appear separately, their combined impact must be considered when evaluating the overall risk to the child.

Legal Reasoning

Lady Carmichael’s judgment is methodical in its application of legal principles. The court first outlined the established burden on the respondent to demonstrate that returning the child would expose him to a grave risk. The two-stage test requires:

• Identification of whether the alleged circumstances, if proven, indicate a grave risk – emphasizing that "grave" describes the risk’s nature and not necessarily the harm itself.
• Consideration of the available protective measures that might mitigate that risk. Here, considerable attention is given to the limitations of French protective mechanisms, particularly during the vulnerable period immediately upon the mother's return.

The Court’s legal reasoning is also informed by an assessment of contemporaneous evidence – including audio recordings showing aggressive, abusive behavior by the father, and a series of graphic text messages. The narrative surrounding a history of violence, threats, and specific instances of physical abuse (e.g., dragging, threats to kill) overwhelmingly supported the mother's account.

Furthermore, the judgment takes into account the father’s inconsistent behavior and his failure to adhere to protective conditions under his bail and non-harassment orders. This lack of confidence in the father's likelihood to comply with future protective measures played a critical role in the Court’s conclusion that the risk to the child cannot be adequately mitigated.

Impact on Future Cases and Relevant Area of Law

This judgment is likely to have significant repercussions in international child abduction cases, particularly where domestic abuse allegations are involved. The Court’s rigorous analysis of what constitutes a “grave risk” and the insistence on a comprehensive evaluation of available protection measures set a robust precedent, emphasizing that:

• Courts must take into account not only the child’s immediate safety but also the psychological and physical effects of exposure to parental abuse.
• The availability of protective measures in the country of habitual residence cannot be taken for granted, especially when there is an inevitable gap in legal protections during transitions (e.g., upon the mother’s return to France).
• Legal challenges involving cross-border custody disputes should critically evaluate the cumulative impact of abuse allegations, rather than isolating individual incidents.

Consequently, future cases involving transnational custody disputes will likely reference this judgment when dealing with similar fact patterns related to domestic violence and the practical enforceability of protective measures abroad.

Complex Concepts Simplified

Several legal and psychological concepts within the judgment may appear complex. Here are simplified explanations:

• "Grave Risk": This term refers to a risk that is considered serious enough to justify extraordinary legal measures. It does not require that harm must be imminent or inevitable, but that the probability of serious physical or psychological injury is significant.
• Two-Stage Assessment: The first stage asks whether the underlying facts, even if disputed, suggest a serious risk. The second stage weighs what protective measures (if any) might effectively neutralize that risk.
• Protective Measures: These include legal orders or other resources aimed at preventing harm, such as non-harassment orders, bail conditions, or immediate interim orders granted by foreign jurisdictions. The judgment stresses that if these measures are insufficient or delayed, then reliance on them is not acceptable.
• Cumulative Effect of Abuse: Rather than looking at single incidents in isolation, the Court evaluates how multiple abusive episodes, when taken together, create an environment that is irremediably harmful.

Conclusion

In conclusion, Lady Carmichael’s judgment represents a significant development in international child abduction and custody law. The decision reflects a rigorous application of both domestic legal principles and international mandates under the Hague Convention. Through its thorough analysis of extensive evidence and the evaluation of protective measures available overseas, the Court underscores that the safety and well-being of the child are paramount. This case sets an important precedent by clarifying that:

• A strong, cumulative evidentiary record of domestic abuse can justify the refusal to order the return of a child, even under international legal obligations.
• Courts must critically assess not only the existence of abuse but also practical gaps in the support and protection available in the child’s destination country.
• Legal decision-makers should adopt a holistic approach, balancing the risks of physical and psychological harm against the feasibility and immediacy of protecting the vulnerable party.

This judgment not only reinforces the importance of safeguarding children in cross-border custody disputes but also provides clear guidance for future cases where allegations of domestic abuse may complicate the application of international child abduction laws.

Ultimately, the ruling sends a strong message that when the integrity of a child’s environment is at stake, judicial prudence must favor measures that prevent exposure to any form of abuse—even if such measures challenge conventional expectations under international agreements.