Six-Year-Old’s Objection Considered but Given Little Weight Where Influenced; Prompt Return Ordered Despite Consent-to-Travel History

1. Introduction

Petition of IK ([2025] CSOH 123, Lord Braid, Outer House) concerns an application for the summary return of a six-year-old child (“L”) from Scotland to Hungary under the Child Abduction and Custody Act 1985, incorporating the Hague Convention on the Civil Aspects of International Child Abduction.

The parties are married Hungarian nationals. L, a dual Hungarian/UK citizen, was born in Belfast (2019), later moved with the family to Hungary (2020), and was found to be habitually resident in Hungary. In August 2025, the respondent travelled with L to Scotland with the petitioner’s consent, on an understanding that the petitioner would later join them and that the family’s longer-term residence would be reviewed after 6–12 months. The respondent then decided to remain in Scotland with L, having formed a new relationship and ending the marriage.

The respondent accepted that the conditions of “wrongful retention” under Article 3 were met, but opposed return relying on three Article 13 defences: (i) acquiescence (Article 13(a)); (ii) grave risk (Article 13(b)); and (iii) the child’s objections (Article 13, “objection” limb).

2. Summary of the Judgment

The court found that L was wrongfully retained in Scotland no later than 20 September 2025 (the date by which the petitioner consulted a lawyer), applying the concept of “repudiatory retention”.
Acquiescence (Article 13(a)) was not established: the petitioner’s rapid steps to initiate return proceedings and his overall conduct did not amount to a clear, subjective acceptance of L remaining in Scotland.
Grave risk (Article 13(b)) was not established: assuming the respondent’s domestic abuse allegations to be true for the purposes of the staged approach, the court held that protective measures in Hungary (including restraining orders and suspension of custody/contact) were available and no evidence showed they would be ineffective.
Child’s objections: the court accepted that L objected and that her views should be taken into account at stage one, but at the discretionary stage gave the views “some, but little, weight” due to evident influence and limited understanding. Return was ordered as this was a “paradigm Convention case” for decision-making by the Hungarian courts.

3. Analysis

3.1 Precedents Cited

(a) Wrongful retention and timing

Lord Braid identified the date of wrongful retention as material to the Convention framework and held that retention occurred no later than the date the petitioner consulted a lawyer. He treated the respondent’s conduct as an “unlawful repudiatory retention” by reference to:

In Re C (Children) (Abduction: Rights of Custody) (International Centre for Family Law, Policy and Practice intervening) [2019] AC 1 (especially para [51]): relied upon for the proposition that retention may become wrongful when one parent unilaterally repudiates the agreed basis on which the child is abroad.

The case illustrates a practical approach where the court will identify, on the evidence, a defensible “no later than” date for retention, sufficient to trigger the Convention’s return mechanism without becoming trapped by disputes over the precise day of parental communications.

(b) Acquiescence (Article 13(a)) as subjective intention

The court treated acquiescence as governed by the orthodox, leading formulation in:

In Re H and other (Minors) [1988] AC 72: the judgment extracted the central principles—acquiescence is primarily a matter of the left-behind parent’s subjective intention, assessed as a fact; contemporaneous words/actions may carry significant weight; and an exception arises where words/actions are so clear and unequivocal that fairness requires holding the parent to acquiescence.
Soucie v Soucie 1995 SC 134: cited for the requirement that acquiescence cannot be found unless the parent has awareness, at least generally, of their rights.

These authorities drove the court’s focus away from the respondent’s perception and onto whether the petitioner’s conduct, viewed objectively against his swift legal steps, truly evidenced a settled intention to accept retention.

(c) Grave risk, domestic abuse allegations, and protective measures

The Article 13(b) analysis was explicitly grounded in:

In Re E (Children) (Abduction) 2011 1 AC 144: cited as the leading authority. The court applied its core propositions: the risk must be “grave”; the assessment is forward-looking; and “intolerable” denotes what the particular child should not be expected to tolerate.
AD v SD 2023 SLT 439: used to articulate the Scottish “nuanced, staged approach” where domestic abuse is alleged—assume allegations true at the first stage, evaluate grave risk, then examine protective measures, and only resolve disputed facts if necessary.
L v H 2021 SCLR 467: relied upon for the presumption (absent compelling evidence) that the requesting state’s courts can protect the child.
Petition of JL 2024 Fam LR 26: cited for the proposition that the “nuanced approach” is confined to domestic abuse allegations; other facts must be proved on the balance of probabilities.
R (Child Abduction Parent's Refusal to Accompany) [2024] EWCA Civ 1296: cited (via Petition of JL) in relation to proof and approach.

The precedents collectively supported a structure in which the respondent had to do more than assert abuse: she needed to engage with whether Hungary’s mechanisms would fail in practice. Her failure to lead evidence challenging effectiveness of protective measures was decisive.

(d) Fact-finding on affidavit contradictions

The judgment noted the conventional caution where affidavit evidence conflicts:

D v D 2002 SC 33, referring to Re AF (A Minor) [1992] 1 FLR 548: commonly expressed as a reluctance to draw firm conclusions where contradictions exist and there is no external support.

However, Lord Braid also referenced his own earlier approach:

DM, Petitioner, [2025] CSOH 109: where he indicated that one party’s account may be rejected if there is an “objectively justifiable basis” for preferring the other, even in affidavit-only contexts (noting the decision was under reclaiming but accepted by parties here).

In this case, despite contest over the respondent’s intentions and timeline, the court ultimately held evidence was insufficient to infer pre-planning to mislead. The discussion nevertheless signals judicial willingness—where properly justified—to evaluate credibility and probabilities even within affidavit-based procedure.

(e) Child’s objections: two-stage test and discretionary balancing

Lord Braid applied the established staged approach:

In Re M (Children) [2016] Fam 1: for the two-stage analysis (objection + maturity; then discretion).
In Re M (Children) (Abduction: Rights of Custody) [2008] 1 AC 1288: for the principle that taking account of a child’s views does not make them determinative; the court must weigh all material.
TS v S 2005 SC 76: for the requirement of a balancing exercise at the discretionary stage and the fact-sensitive nature of weight attached to a child’s views.

These authorities framed the court’s approach: acknowledge the objection, test maturity, then decide whether to order return in light of the Convention’s aims and welfare-related considerations relevant at the discretionary stage.

3.2 Legal Reasoning

(a) Convention framework: swift return, limited defences

The court began with Articles 1, 3, 12 and 13: the Convention aims at prompt return of children wrongfully removed/retained, to restore the status quo and ensure custody disputes are determined by the courts of habitual residence. Once wrongful retention was accepted, return followed unless an Article 13 defence was established.

(b) Fixing the wrongful retention date without over-litigating communications

The parties disputed the precise date on which the respondent informed the petitioner of her decision and when consent was withdrawn. Lord Braid held that little turned on that dispute given the respondent’s acceptance of wrongful retention. The court nevertheless fixed a latest date (“no later than 20 September 2025”) anchored in an objective event: the petitioner consulting a lawyer. This moved the case forward to the real Convention question—whether any defence applied—without allowing contested messaging chronology to dominate.

(c) Acquiescence: messages about jobs/UK driving licence were not “clear and unequivocal” surrender

The respondent argued that the petitioner’s later messages about seeking work in Scotland and applying for a UK driving licence indicated he intended to relocate and thus acquiesced. Lord Braid rejected this:

The petitioner’s prompt legal steps (lawyer’s letter; central authority application; petition lodged) were powerful evidence of a continuing intention to seek return.
The messages did not amount to a clear and unequivocal indication that he would not pursue summary return, particularly as proceedings were already underway.
No detrimental reliance or injustice to the respondent was shown; hope of a change of mind is not acquiescence.

The reasoning operationalises In Re H and other (Minors): a high threshold is required before a left-behind parent is treated as having surrendered Convention rights.

(d) Grave risk: staged approach plus presumption of foreign protection

Assuming the domestic abuse allegations to be true for staged-analysis purposes, the court asked whether return would expose L to grave risk of harm or intolerability and, if so, whether protection in Hungary would mitigate it. The court accepted evidence (a Hungarian lawyer’s report) describing restraining orders and their consequences (including suspension of custody/contact), alongside criminal sanctions and availability of legal aid/support.

Crucially, the respondent did not lead evidence that:

the Hungarian protective measures were unavailable in practice,
they were ineffective, or
the petitioner would not comply with them.

The court also noted contextual features weakening the risk case: the respondent’s original plan was not framed as flight from abuse, and the parties would not be living together on return.

The result reflects In Re E (Children) (Abduction), AD v SD, and L v H: Article 13(b) is not a best-interests merits inquiry; it is a narrow safety valve requiring a “grave” threshold and attention to protective capability in the requesting state.

(e) Child’s objections: “taken into account” at 6, but given little weight where influence and misunderstanding are evident

The court accepted that L objected and declined to disregard her views purely because she was six. Nonetheless, at the discretionary stage the court gave her views “some, but little, weight” due to:

L’s exposure to adult litigation concepts and apparent coaching/influence (e.g., use of “complied”; knowledge about alleged police action; high anxiety about the reporter meeting).
Statements plainly incorrect or implausible (e.g., no grandparents in Hungary; decision by a “Scottish judge speaking Hungarian”).
The reality that a child of six can express preferences but cannot reliably assess longer-term welfare trade-offs (education comparisons; stability; relationships with both sides of family).

Lord Braid then emphasised the Convention’s core logic: this was a “paradigm Convention case” where serious welfare questions about relocation should be determined by the courts of habitual residence (Hungary), particularly given that return could occur relatively soon after wrongful retention.

3.3 Impact

(a) Practical Scottish guidance on young children’s objections

The decision reinforces that Scottish courts may:

consider the views of a very young child (here, six) at stage one, consistent with the child-centric approach; but
reduce weight substantially at the discretionary stage where influence, anxiety, or narrative contamination is apparent, or where reasons cannot withstand scrutiny.

The judgment is likely to be relied upon in future Scottish Hague cases where respondents argue that a primary-school-aged child’s strong preference should defeat return. It confirms that strength of expression is not synonymous with autonomy or reliability.

(b) Reinforcement of the high bar for acquiescence

By rejecting acquiescence despite ambiguous post-retention communications, the decision underscores that:

prompt pursuit of return remedies will usually defeat an acquiescence claim, and
mixed or exploratory messages (jobs, licences, travel) will not readily be treated as the “clear and unequivocal” abandonment required by In Re H and other (Minors).

(c) Article 13(b) and the evidential burden regarding protective measures

The case illustrates that respondents who allege domestic abuse must, at minimum, engage with protective measures in the requesting state. Where a petitioner produces credible material on foreign protections, a respondent’s failure to challenge their availability/effectiveness may be fatal, given the presumption in L v H.

(d) Case-management implications: avoiding satellite disputes about messaging chronology

Lord Braid’s approach to the uncertain communication timeline demonstrates an impact on litigation strategy: courts may identify an evidence-based “no later than” date for wrongful retention to keep focus on the Convention defences rather than allowing procedural skirmishes over message ordering, metadata gaps, or partial records to overwhelm the inquiry.

4. Complex Concepts Simplified

Habitual residence: the country where the child’s life is actually based (home, school, social and family ties). Here, it was Hungary.
Wrongful retention: keeping a child in a country beyond what was agreed or beyond lawful entitlement, in breach of the other parent’s custody rights under the child’s habitual residence law.
Acquiescence: not mere delay or mixed signals; it is the left-behind parent’s real acceptance that the child will stay (a subjective decision), sometimes inferred only when conduct is clear and unequivocal.
Article 13(b) “grave risk”: not “best interests” in general; it is a narrow exception requiring a serious level of risk of harm or intolerability on return, assessed alongside what protections the home country can provide.
Child’s objections defence: a two-stage test—(1) does the child object and is the child mature enough for views to be considered? (2) even then, should the court still order return after balancing all relevant factors?
“Paradigm Convention case”: a case that fits the core purpose of the Hague Convention—prompt return so that the home country’s courts decide long-term welfare and relocation issues.

5. Conclusion

Petition of IK confirms a robust, Convention-aligned approach in Scotland: where wrongful retention is established, return will ordinarily follow unless a tightly confined Article 13 defence is proved. The judgment provides pointed guidance on three recurring issues.

Acquiescence remains difficult to establish; swift legal action and a consistent return stance will usually defeat it even if some communications appear ambivalent.
Grave risk requires more than allegations: where protective measures in the requesting state are evidenced, respondents should expect to address their effectiveness with proof, not assertion.
Child objections may be heard even from a six-year-old, but the court will scrutinise influence, understanding, and realism; strong preferences can still yield to the Convention’s imperative that the habitual-residence court decides relocation and welfare disputes.

The decision’s broader significance lies in its clear prioritisation of the Hague Convention’s prompt-return mechanism while maintaining a structured, child-aware analysis—particularly when young children’s views are invoked to resist return.