Summary of Opinion (Anonymized)

Factual and Procedural Background

This opinion, delivered by Judge Braid of the Outer House, Court of Session, concerns a petition under the Child Abduction and Custody Act 1985 (the 1985 Act) implementing the Hague Convention on the Civil Aspects of International Child Abduction. The parties are the Petitioner, the Respondent (the Petitioner’s spouse), and the child H (referred to in the opinion as the second respondent). The family had been habitually resident in The State. In mid-July 2025 the family travelled to The Country for what was agreed to be a temporary, three‑week holiday. On 26 July 2025 the Respondent informed the Petitioner that she proposed to remain in The Region with the children and would not return to The State. The Petitioner did not consent. On 1 August 2025 the Respondent obtained an ex parte interim interdict from a Local Court prohibiting the Petitioner from removing the children from her care and control.

The Petitioner thereafter instituted proceedings under the 1985 Act seeking the return of the children to The State on the basis of wrongful retention. The Respondent opposed the petition and relied upon Article 13(b) of the Hague Convention (a "grave risk" defence). H supports return and has lodged answers expressing his wish to return to The State. A report from a suitably qualified lawyer in The State was lodged and the court accepted that the Article 3 elements of wrongful retention were established.

Legal Issues Presented

1. Whether the Respondent has established, on the balance of probabilities (or by the nuanced approach where domestic abuse allegations are made), the Article 13(b) defence that there is a grave risk that return would expose either child to physical or psychological harm or otherwise place the child in an intolerable situation.
2. Whether H’s expressed wish to return is relevant to (a) the assessment of the Article 13(b) defence and (b) the exercise of any residual judicial discretion to order return even if the defence is established.
3. If the Article 13(b) defence is established for one child and not the other, how the court should proceed (i.e. return one child and refuse return of the other), and whether separation of the siblings affects the exercise of discretion.

Arguments of the Parties

Respondent's Arguments

• The Respondent urged that the Article 13(b) grave risk defence was established by the cumulative effect of: unstable housing/lifestyle; absence of reliable school places; uncertain or absent health insurance; separation from the Respondent (the children's primary carer); the Respondent's fragile mental health including a recent suicide attempt; and the Petitioner's alleged unreliability and potential non‑compliance with protective measures.
• She relied upon expert evidence and clinical records (including a psychiatric nurse's note and a forensic psychologist's report) to show that return would have an immediate and serious negative impact on her mental health, and that a further deterioration (including suicide) could not be ruled out.
• The Respondent submitted that H’s views were not determinative of the Article 13(b) assessment and should not displace the protective purpose of Article 13(b). She contended that, if the defence were made out, the petition should be refused as Convention‑compliant.
• The Respondent argued that protective measures in The State could not be relied upon with confidence because of the Petitioner's demonstrated disregard for court orders (pointing to conduct in relation to the interim interdict).

Petitioner's Arguments

• The Petitioner sought an order for return and emphasised the Hague Convention’s objective of prompt return to the State of habitual residence so that welfare issues can be determined there.
• He submitted the domestic abuse allegations were denied and that, even taking them at their highest, they did not reach the threshold of Article 13(b). Protective measures available in The State, he argued, would be adequate.
• The Petitioner maintained that the children would have accommodation (a lease had been entered into) and access to schooling (public schooling if private fees could not be sustained) and that emergency medical care would be available even if private insurance was not in place.
• With respect to H, the Petitioner argued H’s expressed wish to return should be given effect and was a relevant factor in the court’s exercise of discretion.

H (the child)

• H expressed a firm, rational and independent wish to return to The State and to be educated in the system with which he is familiar. Counsel for H submitted that his views, as a 14‑year‑old of sufficient maturity, were highly relevant and carried significant weight, potentially justifying return even in close cases.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded from the established Hague/1985 Act framework and relevant case law (notably In Re E) and applied the Article 13(b) analysis to each child individually. Key features of the reasoning were:

• The Article 3 elements of wrongful retention were established by the report from a lawyer in The State, so the central inquiry focused on the Respondent’s Article 13(b) defence.
• On allegations of domestic abuse the court adopted the "nuanced, staged" approach required by AD v SD: assume the Respondent’s abuse allegations true for the initial assessment, then ask whether they would create a grave risk and whether protective measures could mitigate that risk.
• The court emphasised the high threshold for Article 13(b): the risk must be grave (more than a mere real risk) and may refer to serious physical harm, serious psychological harm, or an intolerable situation.
• The court scrutinised the affidavit evidence closely. It identified multiple material inconsistencies or insufficiently vouched assertions in the Petitioner’s evidence (notably about private school payments, claimed deposits, employment and income), finding that some of the Petitioner’s statements were untrue or unreliable. The court applied the principles from D v D and Re AF about handling conflicting written evidence and when it is permissible to prefer one party’s affidavit over another.
• The court analysed discrete factual categories relevant to risk: education, housing/moves, future accommodation, health care/insurance, influence/manipulation of the children, domestic abuse, the Respondent’s mental health (including a suicide attempt), the Respondent’s unwillingness to return, and who had been the primary carer.
• On domestic abuse, assumed true, the court concluded the risk was substantially diminished by the Respondent’s declared unwillingness to return and by the availability of protective measures in The State; on that basis domestic abuse allegations alone did not meet the Article 13(b) threshold here.
• The court gave careful weight to the Respondent’s severe mental health history and the documented suicide attempt of 2 September 2025. It accepted the forensic psychologist’s diagnosis (Adjustment Disorder) and concluded that, although the Respondent said she no longer had suicidal intent, the combination of her history and the recent overdose meant a further attempt could not be ruled out. Even a small risk of very severe harm to children (for example the effects of their mother’s suicide) could amount to a grave risk under the "slide rule" balancing approach.
• The court accepted that return to The State would likely involve immediate accommodation in the lease entered into by the Petitioner (albeit of uncertain durability), probable attendance at public school rather than the private schools previously attended, and uncertain continuation of health insurance. Taken alone these matters did not necessarily amount to a grave risk, but they were relevant when combined with separation from the Respondent (their primary carer) and the risk of deterioration in the Respondent’s mental health.
• On the children’s views: the court recognised the UNCRC obligation (domestically incorporated) to give the child an opportunity to be heard. It considered whether a child's expressed wish to return could affect the Article 13(b) assessment. The court concluded that, in principle, a child’s views are not directly relevant to whether a grave risk exists in respect of physical or psychological harm, but that the child’s views may be relevant when assessing whether a specific situation would be "intolerable" for that particular child. Accordingly, the court treated the views of 14‑year‑old H as an important factor when assessing the intolerability question for him.
• The court performed the required individualised assessment for each child:
• For B (age 8): when all factors were combined — separation from the primary carer, uncertain accommodation and schooling, uncertain health insurance, the Respondent’s fragile mental health including the real risk of further serious deterioration or suicide, and the Petitioner's credibility and past conduct — the court concluded there was a grave risk that B would be placed in an intolerable situation on return. The Article 13(b) defence was made out for B.
• For H (age 14): the court gave substantial weight to H’s matured, informed and consistent wish to return. The court concluded that, taking into account H’s maturity and personal assessment of what he could tolerate, the combined circumstances did not establish the Article 13(b) defence in respect of H. On the borderline nature of the assessment the court also noted that even if the defence were close, a discretionary return of H could be justified given his views.
• On the issue of separation of siblings, the court considered whether separation would produce harm to B sufficient to override the Article 13(b) finding. It concluded the harm from separation did not outweigh the grave risk identified for B.

Holding and Implications

Holding:

• The court refused the petition in respect of the younger child B: the Respondent's Article 13(b) defence was established and the petition was refused for B.
• The court sustained the petition in respect of the older child H: the Article 13(b) defence was not established for H and the court ordered (procedural steps to be arranged) that H be returned to The State with the Petitioner.

Implications:

• Direct effect: The petition is refused for B (no return ordered). The petition is allowed for H and practical arrangements for his return are to be addressed by order. The parties were to return at a subsequent hearing to settle practical arrangements and expenses.
• The decision emphasises that Article 13(b) requires an individualised assessment for each child and that the views of an older, mature child may be an important factor when assessing whether the circumstances to which that particular child would be returned are "intolerable" for that child. The court applied the established "nuanced" approach to domestic abuse allegations and highlighted the significance of (i) credibility and vouching of affidavit evidence, (ii) cumulative assessment of risk factors, and (iii) the serious weight to be given to a parent's documented history of self‑harm when considering psychological harm to children.
• No new legal precedent was created; the decision applies established principles (from In Re E and subsequent authorities) to the presented facts. The court did not indicate it was announcing a novel legal rule beyond the careful factual application already described.

Notes on Evidence and Findings (Concise)

• The court found material contradictions and inadequate vouching in the Petitioner’s evidence about school payments, deposits and income, reducing the weight to be attached to his affidavits where in conflict with other evidence.
• The Respondent’s suicide attempt (2 September 2025) and expert evidence (forensic psychologist diagnosing Adjustment Disorder) were accepted and formed an important part of the risk assessment.
• The court accepted that the Respondent had been the primary carer and that she genuinely stated she would not return to The State, which materially affected the assessment of risk.

Information Not Contained in the Opinion

This summary does not include detailed procedural timetables or the precise terms of the Local Court interim interdict beyond those described in the opinion. It also omits granular documentary annexes and full evidential exhibits which were referenced but not reproduced in the opinion text.

Prepared from the provided opinion text. All proper names, institutions and locations have been anonymized and replaced with consistent placeholders as required.