DBH for orders under the Child Abduction and Custody Act 1985 (Court of Session)

Factual and Procedural Background

The Petitioner seeks an order for the return of two children, born in 2016 and 2018, to the United States of America ("the US") under the Child Abduction and Custody Act 1985. The parties were married in 2016 and divorced in 2023 in the US. The children were habitually resident in the US until 25 December 2023, when the Respondent wrongfully removed them to Scotland, where they have since resided. The Petitioner had custody rights at the time of removal, and the children have had no contact with the Petitioner since September 2023. The parties had entered into a Separation and Property Settlement Agreement in July 2023, and the Petitioner exercised contact with the children until mid-September 2023. The Petitioner has initiated proceedings seeking the children’s return to the US.

Legal Issues Presented

1. Whether the children object to being returned to the US and whether the court should have regard to their views under Article 13 of the 1980 Hague Convention on Child Abduction ("the Convention").
2. Whether, given the proceedings were commenced more than one year after the children’s removal, the children are settled in Scotland under Article 12 of the Convention.
3. Whether there is a grave risk that returning the children to the US would expose them to physical or psychological harm or place them in an intolerable situation under Article 13(b) of the Convention.
4. Whether, if any of the defences are established, the court should exercise its discretion to refuse to order the children's return to the US.

Arguments of the Parties

Respondent's Arguments

• The Respondent is the children’s mother and primary carer since birth, having sole care from 2020.
• The Respondent removed the children to Scotland on 25 December 2023, where they have become happily settled, integrated into school and community, and do not wish to return to the US.
• The Respondent contends that returning the children to the US would place them at grave risk, particularly due to the Petitioner’s association with a religious movement described as a cult and his alleged mental health issues and abusive behaviour.
• US court orders grant sole custody to the Petitioner and impose contempt sanctions and an arrest warrant against the Respondent, which would lead to her imprisonment and removal of the children from her care if she returned.
• The Respondent argues that the children’s objections to return are genuine and that they are settled in Scotland, relying on expert and witness affidavits.
• Protective measures in the US court system are limited in effectiveness, and the only fully protective outcome would be denial of return.

Petitioner's Arguments

• The Petitioner was the primary carer before separation and asserts that contact with the children was progressing well until the Respondent ceased communication and removed the children without consent.
• The Petitioner denies the allegations of mental health issues and abusive behaviour and states he no longer practices the religious movement involved.
• The Petitioner contends the children have no connection to Scotland and that their views have been negatively influenced by the Respondent.
• He has sought to enforce custody and contact orders through US courts and has engaged investigators to locate the children.
• The Petitioner is willing to take steps to purge the contempt order against the Respondent and ensure the children’s welfare upon return.
• Expert evidence indicates that US courts have extensive protective measures available to safeguard the children and Respondent if return is ordered.

Table of Precedents Cited

Court's Reasoning and Analysis

The court applied the legal framework established by the Hague Convention and relevant case law to the facts presented. It first considered the objection defence under Article 13, finding that both children, aged nearly 9 and 7, have the maturity to express their views and clearly object to return. The court acknowledged concerns about potential negative influence by the Respondent but accepted the recent Child Welfare Report’s conclusion that the children’s views are authentically their own.

Regarding the settlement defence under Article 12, the court found the children are settled in Scotland. They have lived there for over 18 months in stable accommodation, are integrated into the local community and education system, and have developed social relationships. Although the Petitioner raised issues of concealment and delay, the court found these did not significantly affect the settlement status.

On the grave risk defence under Article 13(b), the court was not persuaded that returning the children would expose them to grave physical or psychological harm. The allegations of the Petitioner’s past mental health issues and abusive behaviour were considered but not found sufficiently grave or ongoing. However, the court found a grave risk that returning the children to the US would place them in an intolerable situation due to the Respondent’s outstanding arrest warrant, contempt order, and the children’s removal from her care under US court orders. The court accepted expert evidence that protective measures in the US could mitigate risks of harm but could not prevent the arrest and removal situation, which the children should not be expected to tolerate.

In exercising its discretion, the court noted the primary aim of the Convention is prompt return, which is no longer achievable given the children’s length of residence in Scotland and their settled lives. The children’s clear objections, integration, and the risk of intolerable disruption weighed heavily. The court emphasized a child-centric approach focusing on welfare, not moral blame or deterrence. Considering all factors, the court exercised its discretion to refuse the return order.

Holding and Implications

The court’s final decision is to refuse to order the return of the children to the United States of America.

The direct effect is that the children will remain in Scotland with the Respondent. The court recognized the children’s settled status and their clear objections to return, as well as the grave risk of an intolerable situation if returned. No new precedent was set; the decision applies the established legal principles under the Hague Convention and relevant case law to the facts of this case. The ruling underscores the importance of a child-centred approach and the court’s discretion in balancing Convention objectives with the welfare and settled circumstances of the children.