Anonymized Summary of Opinion — Outer House, Court of Session

Court: Outer House, Court of Session. Decision date: 30 October 2025. Judge: Judge Braid. Representation: Attorney Laing for the Petitioner; Attorney Cartwright for the Respondent.

Factual and Procedural Background

The Petitioner brought a petition under the Child Abduction and Custody Act 1985 (incorporating the Hague Convention on the Civil Aspects of International Child Abduction) seeking the return of the parties' child (the Child), aged 3½, to The State (the country in which the Child was habitually resident). The parties were married in 2018, separated in April 2024 and are not yet divorced. The family lived in The City (the town in The State) from the Child's birth until April 2024. Since separation, the Child resided with the Respondent, the primary carer.

Both parties have significant health histories involving alcohol-related illness and other mental health issues; these matters are recorded in the evidence and were material to the proceedings.

The Respondent took the Child on a short holiday with her consent in late June 2025, during which she became unwell and was hospitalised. With the Respondent's consent but without the Petitioner's knowledge, the Respondent's father brought the Child to The City (in the jurisdiction of the Court) on 5 July 2025. The Child remained there.

There were parallel proceedings in The State (before the Swiss court). Prior orders had granted the Respondent de facto custody tied to residence in The City in The State, with the Petitioner supervised access; maintenance and protective orders had been made. After the Child arrived in The City, the Petitioner applied in The State for return and full custody; the Swiss court on an interim basis declined to order immediate return and later stayed further proceedings pending the outcome of the present petition. The Swiss court made provisional arrangements to be implemented if this court ordered a return.

Legal Issues Presented

1. Whether, under the Hague Convention as incorporated by the 1985 Act, the Child was wrongfully removed to or wrongfully retained in the forum State (the central threshold question under Article 3).
2. If the Child was wrongfully removed or retained, whether the Respondent has established the Article 13(b) defence — i.e., that 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.

Arguments of the Parties

Petitioner's Arguments

• Relying on expert evidence on The State's law (Attorney Berger), the Petitioner argued that the Respondent altered the Child's habitual residence without the Petitioner's consent and without a court order, in breach of The State's civil code, and therefore the Child had been wrongfully retained in the forum State.
• The Petitioner argued that the case should not be allowed to be converted from a temporary lawful removal (holiday) into an unlawful permanent relocation, which would undermine the Convention. He sought a finding of wrongful retention (pleaded) and return.
• On Article 13(b), the Petitioner submitted that the Respondent had not discharged the burden of proof on a balance of probabilities; medical and professional evidence did not establish a grave risk of physical or psychological harm to the Child on return, and effective protective measures were available from The State's courts and authorities.

Respondent's Arguments

• The Respondent conceded the Child's habitual residence and the Petitioner's custody rights but contended that the initial movement was connected to genuine medical emergency and was intended to be temporary; she argued that her current position reflected concerns about the Petitioner's abusive behaviour and her own health and support needs.
• On the Article 13(b) defence, the Respondent asserted that the Child would face grave risk if returned — on account of alleged past physical, psychological and financial abuse by the Petitioner and the Respondent's mental health vulnerabilities — and that the statutory and practical protections in The State might be insufficient in practice (partly because of potential financial dependence and limited family support in The State).
• The Respondent relied on corroborating affidavits from family members and medical evidence that returning to The State at that time would be detrimental to her recovery and therefore harmful to the Child.

Table of Precedents Cited

Court's Reasoning and Analysis

The court divided its analysis into two sequential tasks: (1) threshold determination of wrongful removal/retention under the Hague Convention; and (2) if the threshold was met, assessment of the Article 13(b) defence.

1. Wrongful removal/retention

• The court accepted the following matters as undisputed (or no longer disputed): the Child's habitual residence was in The State immediately before the movement; the Petitioner had rights of custody under The State's law; and those rights were being exercised at the material time (or would have been but for the movement).
• Expert evidence from Attorney Berger (an expert on The State's law) indicated that a change of a child's habitual residence outside The State requires either the agreement of both holders of parental authority or a court order, with no exception for emergency relocation.
• The Swiss court's orders (July and September 2025) recorded that no authority or consent had been given for a permanent change of residence and that the situation could be in breach of The State's civil code.
• Although the Petitioner pleaded wrongful retention (and the court recognised the legal distinction between removal and retention per In Re H and Kilgour), the court emphasised that, for Convention purposes, wrongful removal and wrongful retention are treated the same way and that, on the evidential matrix and given difficulties in identifying a single date, a generous approach to the Petitioner's pleading should be adopted.
• Accordingly, the court concluded that the Child had been wrongfully removed to or wrongfully retained in the forum State (the Child's stay in the forum State was now permanent without Petitioner's consent or a court order in The State), and that the Convention was therefore engaged.

2. Article 13(b) defence

• The court applied the legal framework from In Re E: Article 13(b) is of restricted application, the Respondent bears the burden on the balance of probabilities, the risk must be grave, the assessment is forward-looking, and protective measures available in the requesting State must be considered.
• The court noted guidance from AD v SD to take a staged and nuanced approach: assume the allegations to be true for the purposes of assessment, then balance the assessed risk against the efficacy of available protective measures.
• The Respondent had alleged a history of physical, psychological and financial abuse and relied on medical and family evidence regarding her mental health and vulnerability. The court accepted that there was a "kernel of truth" to some allegations (notably the abusive WhatsApp message and prior protective orders) and therefore could not confidently discount the possibility of an Article 13(b) risk.
• On assessing the likely future risk, the court considered three strands of concern: (a) the risk of physical harm (which the court found probably small given separation and lack of recent physical abuse); (b) risk of psychological harm and controlling behaviour (a real concern but potentially mitigable); and (c) risk posed by the Respondent's mental health deterioration affecting her ability to care for the Child.
• The court evaluated the medical evidence and found limitations: only limited contemporaneous medical evidence was produced by the Respondent, and one psychiatric letter (Doctor McCulloch) carried little weight because it was unclear whether the doctor had ever examined the Respondent. The court also noted evidence that mental health services and social supports are available in The State and that the Respondent had previously accessed them.
• The court placed significant weight on the continuing Swiss proceedings and the specific protective measures and procedural arrangements the Swiss court had set out (including social investigation by The State's child protection office, emergency/provisional measures, restraining orders, potential penalties for non-compliance, and existing child protection oversight). The court assumed, absent compelling evidence to the contrary, that The State's authorities could and would provide effective protection.
• Balancing risk against available measures, the court found that, while there were non-trivial risks (particularly of psychological and financial control), the risk did not reach the level of "grave" within Article 13(b) when account was taken of the protective framework available in The State and the practical safeguards the Swiss court had contemplated.
• Therefore the Article 13(b) defence was not made out on the balance of probabilities.

Holding and Implications

Holding: The court concluded that the Hague Convention applied and that the Child had been wrongfully removed to or retained in the forum State. The Article 13(b) defence was not established on the balance of probabilities. Accordingly, the court ordered return of the Child.

Core Ruling: The Child is to be returned to The State.

Implications:

• The direct practical consequence is that the Child must be returned to The State unless intervening arrangements are agreed; the court stated it would put the case out by order to discuss practical arrangements for return before making any formal order.
• The Swiss court retains jurisdiction over welfare and residence matters in The State and has already set out provisional measures to be implemented on return; this provides a regulatory and protective framework for the Child's welfare on return.
• The decision did not purport to set new legal precedent; it applied established authorities (including In Re E and AD v SD) to the facts and emphasised that this outcome followed from applying those principles to the evidence before the court.

Note: This summary is a faithful, anonymized synthesis of the opinion provided and contains only information contained in that opinion. No additional facts or inferences beyond the source text have been introduced.