When a Child Wants to Return: Child’s Wishes, Parental Suicide Risk and the Article 13(b) “Intolerable Situation” Defence in DM, Petition [2025] CSOH 109

When a Child Wants to Return: Child’s Wishes, Parental Suicide Risk and the Article 13(b) “Intolerable Situation” Defence in DM, Petition [2025] CSOH 109

1. Introduction

This Outer House decision of Lord Braid in Petition of DM for orders under the Child Abduction and Custody Act 1985 ([2025] CSOH 109) is a significant addition to Scottish and wider UK jurisprudence on the Hague Convention on the Civil Aspects of International Child Abduction.

The judgment tackles several difficult and relatively under‑explored questions:

  • How the Article 13(b) “grave risk” defence operates when the primary risks arise from:
    • the mental health and suicide risk of the “abducting” parent, and
    • the likely permanent separation of the children from that parent as primary carer.
  • Whether, and how, the wishes of an older child who wants to return can be taken into account in determining whether return would place that child in an “intolerable situation”.
  • The impact of Scotland’s incorporation of the UNCRC on Hague Convention practice.
  • How to handle serious credibility issues and contested affidavit evidence in fast‑track Hague proceedings.
  • When it is permissible to order the return of one sibling but not another.

The case therefore has both doctrinal and highly practical implications for practitioners dealing with international child abduction, particularly where there are serious mental health concerns, unstable living arrangements abroad, and older children with clear views.

2. Factual and Procedural Background

2.1 Family background

The petitioner father, the first respondent mother, and their two sons, H (14) and B (8), had for years been habitually resident in Florida. The parents and H are British citizens with US Green Cards; B is a US citizen. The family had previously enjoyed a high‑spending lifestyle in Florida, but one marked by frequent moves, significant litigation against the father and financial instability.

Until summer 2024 the boys attended a private school (Community School of Naples (“CSN”)), but were then moved to home‑schooling via the Digital School of Florida (“DSF”). H’s home-schooling effectively ceased after a few months. The family’s most recent home in Naples was lost in 2024 in circumstances the court ultimately regarded as a repossession linked to the father’s debts. Thereafter they lived an itinerant existence in hotels and short‑term lets.

2.2 The trip to the UK and the alleged wrongful retention

On 14 July 2025 the family travelled to the UK for a three‑week holiday to visit relatives in England and Scotland. The father understood this to be a temporary visit. On 26 July 2025, while at the mother’s family home in Scotland, she informed him that she proposed to remain in Scotland with both children and would not be returning to Florida. The father did not consent.

On 1 August 2025 the mother obtained an ex parte interim interdict in Peterhead Sheriff Court prohibiting the father from removing H and B from her care and control, or from anyone to whom she entrusted their care.

2.3 The Hague petition

The father petitioned the Court of Session for orders under the Child Abduction and Custody Act 1985 (which implements the Hague Convention) seeking the return of both boys to Florida. Wrongful retention under Article 3 was conceded in light of a report from a Florida lawyer, Laura Davis Smith.

The mother relied on the Article 13(b) “grave risk” defence, contending that return would expose the children to serious psychological harm or place them in an intolerable situation. H, separately represented as second respondent, supported the father’s petition and lodged answers expressing a strong wish to return to the US.

2.4 The interim interdict and H’s current placement

After the Scottish proceedings commenced, H was allowed, by agreement, to spend time with the father in England. He did not return to the mother afterwards. The father maintained that H refused to go back; the mother argued this was a breach of the interim interdict and showed the father’s disregard for court orders. Lord Braid ultimately characterised this as a breach of the “spirit” of the interdict, relevant to assessing whether protective measures abroad could be relied on.

3. Summary of the Judgment

3.1 Legal issues

The key issues were:

  1. Whether the mother had established the Article 13(b) defence in respect of:
    • B (age 8), and
    • H (age 14).
  2. If Article 13(b) was established for either child, whether the court should nonetheless exercise its residual discretion to order return.
  3. Whether, and how, H’s expressed wish to return to Florida was relevant to:
    • the Article 13(b) analysis (in particular the “intolerable situation” limb), and/or
    • the exercise of discretion.

3.2 Outcome

  • As regards B (8): The Article 13(b) defence was upheld. Lord Braid held that a combination of factors – ongoing instability of accommodation and schooling in Florida, uncertain healthcare, separation from the mother (his primary carer), and the serious risk associated with the mother’s fragile mental health and prior suicide attempt – created a grave risk of psychological harm and an intolerable situation if B were returned. The petition was refused in respect of B.
  • As regards H (14): The Article 13(b) defence was not established. Crucially, H’s strong, rational, and independent wish to return to the US was taken into account in assessing what would be “intolerable” for this child. Lord Braid found that, given H’s maturity, understanding of the situation (including his mother’s health), and wish to complete his education in the US, the same combination of factors did not reach the “grave risk” or “intolerable situation” threshold for him. H’s return was ordered.

Lord Braid further held that even if the case for H had been just within Article 13(b), he would in any event have exercised his discretion to order return, having particular regard to H’s views.

4. Legal Framework and Precedents

4.1 Hague Convention and the 1985 Act

The Child Abduction and Custody Act 1985 incorporates the Hague Convention into Scots law. Two core provisions were central:

  • Article 3: wrongful removal/retention (here conceded).
  • Article 13(b): permitting refusal of return where 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.

Habitual residence and wrongful retention were not contested; the dispute focused on Article 13(b).

4.2 Article 13(b): Supreme Court and Scottish authorities

The leading UK authority remains In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144. Lord Braid drew the applicable propositions from Re E, including that:

  • The burden lies on the resisting parent to establish the defence.
  • “Grave” qualifies the risk rather than the harm, but there is an obvious relationship: a low risk of very serious harm can meet the threshold; a low risk of minor harm usually will not.
  • Article 13(b) embodies (at least) three distinct bases:
    • grave risk of physical harm,
    • grave risk of psychological harm, and
    • grave risk of being placed in an “intolerable situation”.
  • “Intolerable” refers to a situation which, in the circumstances of the particular child, the child should not be expected to tolerate; ordinary “rough and tumble” of life is excluded.
  • The court must look to the future situation if the child is returned forthwith.
  • The source of the risk is irrelevant (it can come from either parent, third parties or circumstances).
  • A parent’s subjective perception can be relevant where it generates mental health problems which themselves create the grave risk (reinforced in Re S (A Child) [2012] UKSC 10).

The Inner House’s decision in AD v SD 2023 SLT 439 is the leading Scottish authority on how these principles are to be applied, especially in cases involving alleged domestic abuse. Lady Wise articulated a “nuanced, staged approach”:

  1. Assume the allegations of domestic abuse are true for the purpose of Article 13(b).
  2. Ask whether, on that assumption, there would be a grave risk of the child being exposed to harm or an intolerable situation.
  3. If so, consider whether there are efficacious protective measures available in the requesting state.
  4. Where necessary, conduct a “slide rule” balancing of the severity/likelihood of the risk against the robustness of protective measures: severe risks require correspondingly strong protections.

Lord Braid expressly followed this framework, while noting that this “nuanced” assumption‑of‑truth approach applies only to domestic abuse allegations; all other factual issues must be proved on the balance of probabilities (Petition of JL 2024 Fam LR 26; contrasted with the English Court of Appeal’s stance in R (Child Abduction: Parent’s Refusal to Accompany) [2024] EWCA Civ 1296).

4.3 Protective measures and foreign courts

In line with L v H 2021 SCLR 467, there is a presumption that the courts of the requesting country can protect the child, absent compelling evidence to the contrary. However, that presumption is not irrebuttable, and must be weighed against evidence about the actual availability of remedies and the conduct of the petitioning parent.

4.4 Suicide risk cases

Lord Braid referred to Director-General, Department of Families v RSP (2003) 177 FLR 169, where a parental suicide in the event of return was recognised as capable of meeting Article 13(b), while emphasising that threats of suicide must be scrutinised “with great care”. The question is whether the threat is genuine and whether the consequences for the child, if realised, are grave.

4.5 Discretion after Article 13(b): Re M and Re D

Even if a defence under Article 13(b) is established, the court retains a discretion to order return. In In re M (Abduction: Rights of Custody) [2008] 1 AC 1288 and In re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619, Baroness Hale famously said it is “inconceivable” that a court would order return where it has concluded there is a grave risk of harm or an intolerable situation.

Lord Braid endorsed this principle (and the Inner House’s approval in AD v SD), but – as will be seen – he acknowledged that where a case is truly borderline on “grave risk”, the discretion may in practice collapse into the assessment of whether the threshold is in fact met.

4.6 UNCRC incorporation and Hague proceedings

The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 now makes it unlawful for a court to act incompatibly with UNCRC requirements (s 6). Two provisions were central:

  • Article 3 UNCRC: “In all actions concerning children … the best interests of the child shall be a primary consideration.”
  • Article 12 UNCRC: the child’s right to be heard in judicial proceedings that concern them.

In FPS v SM 2025 SC 61, an Extra Division held that Hague Convention proceedings are “relevant proceedings” for the purposes of the UNCRC Act. Lord Braid followed this, citing Lady Wise’s view that Hague courts must consider children’s objections consistently with UNCRC.

However, drawing on Baroness Hale’s analysis in Re E ([12]–[18]), he emphasised that the Hague Convention itself is constructed on the basis of the child’s best interests: it proceeds on the assumption, rebuttable via defences such as Article 13(b), that prompt return to the state of habitual residence normally best serves children’s interests. Provided the Hague scheme is faithfully applied, with due attention to Article 12 UNCRC (right to be heard), the court will have treated the child’s best interests as a primary consideration; no separate full-scale welfare inquiry is required in Hague proceedings.

5. The Court’s Approach to the Evidence

5.1 Affidavit evidence, contradictions and credibility

Like most Hague cases, this one proceeded almost entirely on affidavit evidence, with limited scope for cross‑examination. Lord Braid rehearsed the guidance from D v D 2002 SC 33 and Re AF (A Minor) [1992] 1 FLR 548: where affidavits are in irreconcilable conflict and there is no extraneous support, the party bearing the onus may fail to prove their case, unless the other side’s evidence is inherently improbable.

Importantly, he refined this approach (at [10]): independent extraneous evidence is not the only basis on which a court can reject affidavit evidence. Evidence may be rejected if it is:

  • inherently improbable, or
  • demonstrably unreliable due to proven untruthfulness on other material points.

This allowed him to treat the father’s evidence with marked scepticism once serious inconsistencies emerged, particularly in relation to school fees, private schooling arrangements, income, and accommodation.

5.2 Education and the Canterbury School episode

The education history was crucial both factually and in assessing the father’s credibility.

  • The boys had attended CSN (a high‑end private school) until summer 2024.
  • They were barred from returning for 2024/25 due to unpaid fees of over USD 47,000. The father’s insinuation that the move to home‑schooling was a neutral joint decision was flatly contradicted by school documentation.
  • H’s home‑schooling through DSF ended abruptly around December 2024/January 2025. He was thereafter doing only a small amount of maths tutoring daily.

Critically, the father’s October 2025 affidavit asserted that:

  • both boys had secured places at another private school, Canterbury School,
  • he had signed contracts and paid “approximately” USD 10,000 towards fees.

The school’s own email stated that:

  • both boys had been removed from Canterbury’s registration and payment systems on 22 September 2025, and
  • only USD 510 had been received.

Confronted with this, the father filed a further affidavit, rowing back from his USD 10,000 claim and blaming “payment provider” difficulties, coupled with the emotional strain he said he was under when preparing the earlier affidavit. Lord Braid was unimpressed: there was no vouching of failed payments, and the school appeared to have no record of the larger sums allegedly paid.

This incident had two consequences:

  1. Substantively, it led the court to conclude that:
    • Canterbury schooling was not realistically available;
    • CSN remained unavailable due to arrears;
    • the boys would almost certainly attend an unknown public (state) school or be home‑schooled on return.
  2. Evidentially, it substantially undermined the father’s overall credibility:
    • His evidence was either a deliberate attempt to mislead or culpably careless.
    • Where his evidence conflicted with that of the mother (often supported by documents) or H, it should not be preferred.
    • “No weight falls to be attached” to his evidence on contentious issues ([29]).

5.3 Housing, financial instability and lifestyle

The mother’s evidence, supported by documents, painted a picture of repeated house moves in the US, several linked to repossessions or litigation settlements against the father. The most recent family home in Naples had been foreclosed and sold at auction for well below its value; it was later marketed at roughly ten times the auction price, suggesting a significant loss of equity.

The father tried to reframe this as transfers made with the mother’s agreement as part of litigation settlements and denied true “repossession”, but Lord Braid regarded that distinction as immaterial. What mattered was that:

  • homes were repeatedly lost as a direct result of the father’s financial dealings and litigation;
  • the family had in reality been “homeless” in the sense of having no owned or leased home, though not street homeless, for about a year.

The father produced a contract with “Equity Asset Capital” (dated 1 August 2025) allegedly paying him USD 20,000 per month, but:

  • his 1 August 2025 affidavit, sworn the same day, made no mention of this supposed employment;
  • the contract required his full‑time devotion to EAC, inconsistent with his other claimed CEO role;
  • there was no vouching of any salary actually paid.

The court concluded that:

  • the father’s present income and wealth were unknown and his claims unreliable;
  • he was frequently sued and burdened with debts he could not pay;
  • the pattern of financial instability and consequent moves was likely to continue on return to the US.

5.4 Future accommodation

The father had entered a 12‑month lease of a property in Estero, Florida, paying USD 11,250 (security deposit plus first and last months’ rent). He lodged:

  • the lease (naming himself and the boys as occupants), and
  • some payment receipt evidence.

His parents provided an affidavit confirming that they had transferred funds to support the rent and held a sum of around GBP 59,000 available if needed. A friend (JB) also offered to accommodate the father or the mother plus children rent‑free if required.

Lord Braid found that:

  • there would likely be some immediate accommodation available for the father and boys if returned;
  • given the pattern of past housing loss and the questionable finances, it was uncertain whether the lease would run its full term;
  • his claimed ability to purchase a property (USD 550,000–1.2m) was not credible.

5.5 Healthcare and insurance

The mother stated, and the father effectively accepted, that:

  • the family had been without health insurance for at least a year before the trip to the UK;
  • she had to pay out-of-pocket for medical appointments in 2024;
  • the boys had not had routine medical examinations for two years; and
  • H had been unable to maintain orthodontic treatment due to financial constraints.

The father produced card receipts purportedly showing the purchase of health insurance from 1 September 2025 and generic documents from an insurer, but there was a mismatch between his affidavit and the documentary dates and coverage periods. Lord Braid considered that:

  • it could not be said with any confidence that stable medical insurance would be available if the children were returned;
  • emergency medical care in Florida would be provided regardless of ability to pay, but non‑emergency needs (e.g. orthodontics) were more uncertain.

5.6 Domestic abuse allegations

The mother alleged a pattern of controlling, coercive and verbally abusive behaviour by the father, including one incident of physical aggression in a hotel where he dragged her by the feet across the floor after she intervened to protect B from being hit. The father denied these allegations.

Applying the AD v SD “nuanced” approach, the court assumed the allegations to be true for the purpose of the Article 13(b) assessment. However, Lord Braid found that:

  • the mother was not claiming to have fled an abusive relationship; she initially did not intend separation;
  • the domestic abuse, as alleged, did not by itself reach the threshold of a grave risk to the boys if they returned;
  • if the mother were to return, protective measures would be assumed available in Florida.

Thus, domestic abuse was not the decisive basis for the grave risk finding; the case turned on other factors.

5.7 The mother’s mental health and expert evidence

5.7.1 The September 2025 overdose

On 2 September 2025, about 11 days after swearing her first affidavit, the mother took a significant overdose of zolpidem and Xanax. She was found by B, unresponsive, and hospitalised. Contemporaneous psychiatric nursing notes recorded that:

  • she felt in a “no win” situation over the custody proceedings: if she kept the boys, they would be unhappy in Scotland; if they returned, she would barely see them;
  • B’s statement after contact (“I’ll be fine without you”) was the immediate trigger.

This was not a mere threat; it was a serious suicide attempt.

5.7.2 Diagnosis and prognosis

Professor Gary MacPherson, a consultant forensic clinical psychologist, provided an expert report. Drawing on clinical records and an interview with the mother, he concluded that:

  • she met the criteria for an Adjustment Disorder (DSM‑5) with low mood and anxiety: a time‑limited but significant reaction to major stressors;
  • she had a history of depressive episodes and a prior serious overdose in 2006 in the context of relationship difficulties;
  • her current difficulties were tied to stress in the relationship, financial insecurity, the Hague proceedings, and fear of separation from her children;
  • the September 2025 overdose was taken with suicidal intent and represented a high‑risk event;
  • her current self‑report suggested no active suicidal intent, but if she again felt completely out of control, repetition of self‑harm could not be excluded.

Crucially, he opined that a court‑ordered return of the boys to the US would have an immediate negative impact on her mental health. He considered she would, from a purely psychological standpoint, be capable of returning with them, but this left practical barriers (finance, support, housing) unaddressed.

5.7.3 The risk to the children

Dr Katherine Edward, a chartered clinical psychologist, provided an expert report on the likely impact on the children of:

  • witnessing domestic abuse;
  • severance from their primary carer;
  • exposure to lifestyle instability (housing, schooling, health);
  • a deterioration in the mother’s mental health or death by suicide.

The father challenged the admissibility of her evidence on the ground that it was largely “conjectural” and unsupported by citations. Lord Braid held that:

  • this went to the weight, not the admissibility, of her evidence;
  • psychology is a recognised discipline; she was suitably qualified and impartial;
  • while some of her observations overlapped with judicial knowledge (e.g. domestic abuse can harm children, poor schooling affects attainment), other aspects – especially around long‑term attachment and trauma – were of genuine assistance.

5.8 The interim interdict and implications for protective measures

The father’s insistence that he had not violated the interim interdict, because at the relevant time he was the person with care and control of H, was rejected at a practical level. Lord Braid held that the father had breached the spirit of the order, whose evident intent was to keep the boys with the mother pending determination. This conduct:

  • cast doubt on his willingness to comply with court orders at home or abroad; and
  • undermined reliance on protective measures in Florida that would require his cooperation.

5.9 The children’s views

Both children’s views were ascertained, in line with UNCRC Article 12 and established Hague practice.

  • H (14): clearly and consistently wished to return to Florida. He emphasised:
    • a desire to complete his education in the US;
    • a sense of Florida being “home”;
    • an understanding of the ongoing litigation and the family’s situation.
    His maturity and capacity were not in doubt.
  • B (8): in a detailed Child Welfare Report by senior counsel acting as reporter, B was found capable of expressing views, which were firmly in favour of returning to the US. However:
    • the reporter considered B had been unduly exposed to adult information about the case, likely emanating from the father (and H);
    • there had been an attempt at influencing him;
    • nonetheless, his core wishes appeared rooted in personal factors – returning to friends, toys and the environment he knew.

The court therefore treated H’s views as weighty and B’s as relevant but less determinative, given his age and the potential influence exerted.

6. Core Legal Reasoning and Novel Points

6.1 The global assessment under Article 13(b)

Lord Braid conducted a careful, cumulative assessment. Standing back from the mass of evidence, he considered first the objective conditions facing the boys on return:

  • They would probably have short‑term accommodation under the Estero lease, but the father’s history made longer‑term stability doubtful.
  • They would attend unknown public schools, not the private schools they had been led to expect.
  • Non‑emergency healthcare would be uncertain, though they would have access to emergency care.
  • They would not be living in penury: the father plainly had some access to funds, including familial support, albeit of uncertain durability.

In isolation, these factors did not quite reach “grave risk” – they reflected a sub‑optimal but not necessarily intolerable existence. The case turned on adding four further elements:

  1. Separation from the mother, their primary carer.
  2. The mother’s mental health and suicide risk if separated from the children by an order of return.
  3. The children’s own views (particularly H’s strong wish to return).
  4. The potential separation of siblings if only one was ordered to return.

6.2 Separation from the primary carer and practical inability to litigate abroad

The court found as fact that:

  • the mother had been the main day‑to‑day carer, especially for B;
  • she was now both unwilling and – realistically – unable to return to the US, given:
    • her fragile mental health,
    • lack of medical insurance,
    • absence of support network, and
    • complete financial dependence on an unreliable father.

Although US law did not legally bar her from litigating in Florida, the evidence (including the Florida lawyer’s report) suggested:

  • no automatic right to legal aid or appointed counsel;
  • only “limited” free legal resources and no evidence they would be available to her;
  • uncertainty about remote participation from Scotland.

Lord Braid therefore accepted that a return order would be, in practice, largely determinative of the children’s long‑term residence with the father. This magnified the significance of the separation from their mother. For B, especially, that ongoing separation from his primary carer was likely to be psychologically harmful.

6.3 Parental suicide risk and psychological harm to the children

On suicide risk, the court took a measured but realistic approach:

  • The September 2025 overdose was a serious attempt, not a tactical ploy.
  • There was a prior overdose in 2006 and a history of depression and anxiety.
  • Professor MacPherson’s evidence indicated a genuine risk of deterioration and possible repetition, albeit not a certainty.

Lord Braid emphasised that even a relatively low probability of a catastrophic harm – a completed suicide of the children’s mother – could qualify as a “grave risk” under Article 13(b), in line with the “slide rule” approach in AD v SD:

Even a small risk of such extreme harm may constitute a grave risk. ([80])

He further noted that the harm was not confined to the consequences if suicide occurred; the boys’ ongoing anxiety about their mother’s mental state, knowing her past attempts and fragile condition, would itself carry a “very real risk of psychological harm” ([81]).

6.4 The novel question: can a child’s wish to return affect the 13(b) analysis?

The most innovative aspect of the judgment lies in Lord Braid’s treatment of H’s wishes. Traditionally, the child’s views are relevant in two Hague contexts:

  1. As a distinct Article 13 defence where a child of sufficient maturity objects to return.
  2. At the discretionary stage, after a defence is established.

There is no direct authority on whether and how a child’s wish to return can bear upon the threshold question of “grave risk” and “intolerable situation”. Lord Braid addressed this head‑on:

  • He accepted that, for physical or psychological harm in the narrow sense, the test is largely objective; H’s desire to return does not alter whether he would actually be exposed to such harm.
  • However, the “intolerable situation” limb is inherently relational and child‑specific:
    • what is intolerable depends in part on what this child can reasonably be expected to tolerate, having regard to their age, maturity and informed understanding.

He concluded that, at least in relation to “intolerable situation”, a mature child’s wishes may legitimately be factored into the Article 13(b) assessment:

It is at least arguable that what is intolerable must, to an extent, depend upon what the particular child is able, and willing, to tolerate; or, at any rate, that there is room for the child's views to be taken into account in assessing … whether the situation to which he would be returning would be intolerable for him. ([85])

Applying this to H:

  • H is 14 and demonstrably mature; he understands:
    • his mother’s fragile mental health,
    • the realities of life in Florida (frequent moves, uncertain schooling), and
    • his father’s limitations.
  • He has a strong, rationally articulated desire to:
    • complete his education in the US, and
    • return to what he experiences as “home”.
  • He knows he may be separated from his sibling and mother but remains firm in his view.

Given that understanding, the court held that:

  • H’s return, although far from ideal, would not be intolerable for him;
  • there was no grave risk of psychological harm to him on the evidence.

In effect, Lord Braid resolved a previously open question in Hague jurisprudence: a mature child’s wish to return may, in an appropriate case, soften what would otherwise be an intolerable situation, thereby defeating an Article 13(b) defence.

6.5 Sibling separation and individualised assessment

Contrary to an intuitive preference to keep siblings together, Lord Braid analysed B and H’s situations individually, as Article 13(b) requires. Significant features included:

  • Different ages and developmental stages (14 vs 8).
  • Different capacities to process and cope with parental mental health risks.
  • H’s stronger pull to the US education system; B’s stronger dependency on his mother’s day‑to‑day care.

He recognised that separation would be “obviously” undesirable for both, but not dispositive:

  • There is a six‑year age gap; in any event, H might have moved away for college or work in a few years.
  • Regular video contact and physical visits could mitigate the disruption.

Accordingly:

  • For B, the grave risk and intolerable situation test was met.
  • For H, it was not.

At the discretion stage for B, the court weighed whether the harm from separating him from H would outweigh the grave risk of psychological harm and intolerable conditions if he were returned. Lord Braid concluded it would not; the grave risk to B remained the dominant consideration, and B should stay in Scotland.

6.6 Protective measures and the petitioner’s track record

Although general principle favours reliance on protective measures in the requesting state, Lord Braid was influenced by:

  • the father’s conduct in relation to the interim interdict;
  • his lack of candour over finances and schooling;
  • the absence of concrete enforceable undertakings or detailed care plans from Florida.

He did not find “compelling evidence” that Florida courts would be unable or unwilling to protect the boys in general, but he found that, in the particular circumstances:

  • potential protective measures could not negate:
    • the practical inevitability of long‑term separation from the mother, and
    • the associated mental health risks and uncertainties.
  • Thus, protective measures did not displace the Article 13(b) defence for B.

6.7 Discretion after Article 13(b) – “borderline” cases

Having upheld the grave risk defence for B, Lord Braid exercised his discretion in favour of refusal of return; this is in line with the general principle in Re M and Re D.

For H, he concluded that Article 13(b) was not established. However, he added an important obiter comment:

For completeness, the decision about whether there would be a grave risk in respect of H is so borderline that I consider that he should be returned on a discretionary basis, having regard to his views, in any event. Putting that another way, the circumstances to which he is returning, although far from ideal, are not so drastic, or intolerable that it is inconceivable that he be returned. ([89])

This does two things:

  • It emphasises that the case is close to the line; but, on the court’s evaluation, just falls short of “grave risk”.
  • It tacitly acknowledges that, even where a case flirts with the threshold, the discretion (informed by a mature child’s wishes) can play a role in justifying return without contradicting the “inconceivable” dictum – because, correctly analysed, the threshold is not in fact crossed.

Lord Braid also rejected H’s arguments (advanced in his own plea‑in‑law) that the court is bound to accede to a child’s wishes once found to be rational and independent. The child’s views, however weighty, remain one factor within the overall Hague analysis.

7. Impact and Practical Implications

7.1 Doctrinal significance in Hague jurisprudence

The decision is significant for several reasons:

  1. Child’s wish to return as part of Article 13(b) analysis.
    • This is one of the clearest judicial statements that a mature child’s wish to return may affect the “intolerable situation” limb.
    • It opens a doctrinal pathway for courts to differentiate between siblings – one protected by Article 13(b), another not – based partly on their differing wishes and capacities.
  2. Parental suicide risk and cumulative factors.
    • The judgment aligns with overseas authorities in accepting that even a relatively low probability of a catastrophic event (suicide) can meet the “grave risk” standard, especially when combined with other stressors.
    • It emphasises that it is not only the event itself but the children’s ongoing anxiety about that risk which can be psychologically harmful.
  3. Separation from primary carer where that carer cannot realistically return.
    • The case develops UK jurisprudence recognising that if the left‑behind parent is unwilling or unable to return, and return would effectively determine long‑term residence, this can weigh heavily in Article 13(b) analysis.
  4. Evidence and credibility in affidavit‑only proceedings.
    • The judgment clarifies that a court may reject a party’s affidavit evidence in Hague proceedings on grounds of inherent improbability or demonstrated untruthfulness, even without extensive oral evidence.
    • This is particularly important in an area where time pressures often preclude full cross‑examination.
  5. UNCRC incorporation and Hague practice.
    • The judgment confirms that faithfully applying the Hague scheme, including listening to children (Art 12) and properly applying defences, satisfies the duty to treat best interests as “a primary consideration” (Art 3 UNCRC).
    • Courts are not required to graft a free‑standing welfare test onto Hague proceedings.

7.2 Practical guidance for practitioners

The decision generates several concrete lessons:

  • Be candid on finances and schooling. Any attempt to “dress up” unstable financial circumstances or to overstate school arrangements risks a global loss of credibility which can be fatal in Hague litigation.
  • Substantiate claims about protective measures and foreign proceedings.
    • If relying on foreign court protections, provide detailed, specific evidence on:
      • available orders;
      • timescales; and
      • real-world access to legal representation for the resisting parent.
  • Handle suicide risk with care.
    • Courts will scrutinise suicidal threats, but genuine attempts with clinical corroboration are powerful evidence for a grave risk defence.
    • Expert mental health evidence can be decisive; it should be specific about causation and prognosis.
  • Involving children and their views.
    • Older children should usually be separately represented and their views recorded clearly.
    • Where a child wants to return, that wish may still be highly relevant to the Hague analysis, not just at the discretion stage.
  • Respect interim orders.
    • Non‑compliance with domestic interim orders (even if arguably defensible on a literal reading) will weigh heavily against the parent in any assessment of their reliability and in arguments that foreign courts’ orders will be respected.

8. Complex Concepts Simplified

8.1 Habitual residence and wrongful retention

“Habitual residence” refers to the country where the child has their settled, usual home. It focuses on the child’s integration into a social and family environment. Here, all parties accepted that Florida was the boys’ habitual residence before the summer trip.

“Wrongful retention” occurs where a child stays in a country beyond the agreed period, in breach of the foreign rights of custody. The mother’s decision not to return to Florida at the end of the holiday, without the father’s agreement, created a wrongful retention.

8.2 Article 13(b): “grave risk” vs general welfare

Article 13(b) does not invite the court to decide what is “best” for the child overall or to compare living standards in two countries. That is a job for the courts of the habitual residence.

Instead, the resisting parent must show a serious risk of:

  • physical harm,
  • psychological harm, or
  • being placed in a situation which this child should not be expected to tolerate.

Factors like poorer schooling or reduced living standards will not normally suffice unless they contribute to a substantially harmful or intolerable situation.

8.3 “Intolerable situation”

Not everything that is “bad” or “upsetting” is intolerable. Children inevitably face discomforts and difficulties. “Intolerable” in this context means circumstances that, for the particular child, go beyond what can reasonably be expected:

  • serious chronic instability;
  • profound separation from key attachment figures;
  • conditions that threaten their mental or physical integrity.

In this case, for B, the mix of separation from his mother, mental health risks and repeating extreme housing/educational insecurity crossed that line; for H, given his maturity and wishes, it did not.

8.4 Adjustment Disorder

Adjustment Disorder is a recognised mental health condition where a person experiences significant emotional or behavioural symptoms in response to identifiable stressors (such as relationship breakdown or litigation). It is time‑limited but can include:

  • depression;
  • anxiety;
  • sleep problems;
  • impaired functioning.

In the mother’s case, the stressors included the breakdown of her relationship, chaotic finances, the sudden stay in Scotland, and the Hague proceedings themselves.

8.5 Discretion after a Hague defence is made out

Even if a Hague defence (like Article 13(b)) is established, the court is not automatically required to refuse return. It must weigh:

  • the gravity of the risk found;
  • the Convention’s objective of prompt return;
  • the child’s wishes;
  • the possibility of protective measures;
  • other human rights or policy considerations.

However, if the risk is clearly “grave” and not realistically mitigable, in practice courts almost always refuse return, consistent with Baroness Hale’s “inconceivable” formulation. This case shows how, in close or borderline situations, discretion and the child’s wishes can still play a role.

9. Conclusion: Key Takeaways

Lord Braid’s decision represents a nuanced, fact‑sensitive application of Article 13(b) in a complex modern context of financial instability, mental health, and children with divergent wishes. Key messages include:

  • A mature child’s wish to return can legitimately be considered in assessing whether that child would face an “intolerable situation” under Article 13(b), not just at the discretionary stage.
  • Parental suicide risk, where supported by clinical evidence and prior attempts, can satisfy the grave risk threshold, especially when combined with other stressors. Courts will treat genuine risk as a serious factor.
  • Where a primary carer cannot realistically return to the state of habitual residence, a Hague return order may be practically determinative of the children’s long‑term residence; this can weigh heavily in favour of an Article 13(b) defence.
  • Courts will not hesitate to disbelieve untested affidavit evidence where a party is shown to have been untruthful on key points. Credibility on finances, schooling and compliance with orders is central.
  • The incorporation of the UNCRC into Scots law does not transform Hague proceedings into general welfare disputes; instead, it reinforces:
    • the need to hear children’s views, and
    • the proper, structured application of Hague defences as the vehicle for protecting best interests in this jurisdiction.
  • Finally, the case illustrates that siblings may lawfully be treated differently in Hague proceedings where their individual circumstances and wishes materially diverge: B lawfully remains in Scotland; H lawfully returns to Florida.

As Hague Convention cases become more entwined with complex psychological evidence, UNCRC rights, and modern family dynamics, DM, Petition provides a carefully reasoned template for balancing the Convention’s demand for prompt return against genuine, grave risks to children in particularised circumstances. It will likely be treated as a leading Outer House authority on the interaction between children’s wishes, parental mental health and the Article 13(b) “intolerable situation” defence.

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