Anonymised Summary of Court Opinion

Factual and Procedural Background

This opinion was delivered by Judge Wise sitting with Judge Clark and Judge Carmichael in an extra-division appeal. The Petitioner (the father) sought the return of the child (aged about 3 years and 9 months) to the child's habitual residence in The State under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, as incorporated by the Child Abduction and Custody Act 1985. The Respondent (the mother) opposed return and reclaimed (appealed) the first-instance decision ordering return.

Key factual points (as stated in the opinion):

• The child was born and habitually resident in The State until a separation of the parents in April 2024. After separation, the child lived with the Respondent.
• The Petitioner had custody rights and exercised contact, including unsupervised contact from June 2025.
• The Respondent obtained written consent from the Petitioner for a short trip to another State (a long weekend in late June 2025). The child was not returned by the agreed date and remained abroad before being brought to The State by a grandparent on 5 July 2025 without the Petitioner's knowledge or consent.
• The Respondent suffered a serious mental health episode while abroad and was hospitalised for a period in The Hospital and thereafter returned to The State; she later attended a hearing in The City court in September 2025.
• The Petitioner raised return proceedings on 15 August 2025; the first-instance judge issued opinion on 30 October 2025 and an order on 11 November 2025 fixing a return date (which the appellate court adjusted).
• Both parties have histories of significant alcohol dependence; the expert evidence and the The City court's prior orders addressed aspects of that background (including random testing ordered by The City court).

Legal Issues Presented

1. Whether the child's presence in The State was "wrongful" within article 3 of the 1980 Hague Convention (i.e., whether the Convention was engaged because the Petitioner's rights of custody under the law of the State of habitual residence were breached by removal or retention).
2. Whether the Respondent established the article 13(b) defence — that there is a grave risk that returning the child to the State of habitual residence would expose the child to physical or psychological harm or place the child in an intolerable situation.

Arguments of the Parties

Appellant's (Respondent's) Arguments

• The Respondent argued that the Petitioner's rights of custody were limited under the State's civil code to decisions about change of the child's place of residence and that the short trip abroad did not amount to a prohibited change of residence. Thus article 3 was not engaged in the circumstances described.
• The Respondent contended that, even if article 3 applied, the Lord Ordinary erred in rejecting the article 13(b) defence. She relied on allegations of past physical and psychological abuse (including controlling and threatening communications), her own recent serious mental health difficulties and financial difficulties, and uncertainty about accommodation and funding for legal costs in The City. On this basis she argued there was a grave risk to the child on return, or at least the protective measures identified would be insufficient.
• The Respondent criticised the first-instance expert evidence (Swiss law expert) as incomplete or based on incomplete factual material and argued that the judge should have identified the precise date of any wrongful retention and should not have looked beyond the pleaded date range.

Appellee's (Petitioner's) Arguments

• The Petitioner maintained that the case was correctly pleaded as wrongful retention and that any ambiguity in pleading did not undermine the substance: consent to the short trip expired and the child was wrongfully retained from 30 June 2025 (and certainly by 5 July 2025 when the child arrived in The State).
• The Petitioner relied on expert evidence that under the State's civil code the father's consent was "absolutely required" for the child's temporary removal from The State and for continued retention outside The State, and thus that his custody rights under article 3 of the Convention were engaged.
• On article 13(b), the Petitioner submitted that the burden lay on the Respondent, that the protective measures and ongoing litigation in The City provided effective safeguards, and that the Lord Ordinary was entitled to conclude that the article 13(b) defence was not made out.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re H (Abduction: Custody Rights) [1991] 2 AC 476	The mutual exclusivity of wrongful removal and wrongful retention and general treatment of removal/retention under the Convention.	The court referred to the decision to explain that removal and retention are treated the same way and to structure the analysis as either wrongful removal or wrongful retention.
In Re E (Children) 2012 1 AC 144	The well-established test for article 13(b): assess the nature and severity of the risk on the assumption the respondent's averments are true.	The Lord Ordinary applied that test and the appellate court endorsed its use in evaluating the article 13(b) defence, with reference to subsequent local authority decisions.
AD v SD [2023] CSIH 17; 2023 SLT 439	Guidance on balancing assessed risk and the need/type of protective measures where domestic abuse is alleged in article 13(b) claims.	The court relied on the approach in that case in assessing how the judge balanced the alleged risks against available protective measures in The State.
In re C (Children) [2019] AC 1	Authority that a precise date of retention may sometimes be impossible to ascertain.	The court cited the decision to support the proposition that failure to identify an exact date of retention is not necessarily fatal where the relevant period is short and identifiable.
In re H (A Child) [2019] 3 WLR 1143	Analysis that wrongful retention may continue when a child is moved to a third contracting state; discussion of continuity of wrongfulness.	The court treated that authority as consistent with the view that initial wrongful retention abroad continued when the child arrived in The State and supported the conclusion that article 3 was engaged.
AR v RN [2015] UKSC 35	Principles on habitual residence and its potential change where a taking parent forms an intention to remain in a new State.	The court distinguished that type of case from the present facts and noted that no change of habitual residence was pleaded by the Respondent.
Kilgour 1987 SLT 568	Authority cited alongside Re H on the relationship between removal and retention.	Used to support the proposition that wrongful removal and wrongful retention are mutually exclusive analyses under the Convention.
D v D 2002 SC 33	Principle that a court should not make findings on contested factual matters where there is no extraneous evidence to resolve conflicts of account.	The Respondent relied on this case to argue the judge should not have found the existence of accommodation; the appellate court explained why D v D was distinguishable and upheld the first-instance finding on accommodation.

Court's Reasoning and Analysis

The court proceeded in two main stages corresponding to the two issues identified:

1. Whether article 3 of the 1980 Hague Convention was engaged (wrongful removal/retention)

• The court treated the core question as whether the child's presence in The State was wrongful within the meaning of article 3 (breach of custody rights under the law of the State of habitual residence and those rights being exercised at the time or would have been but for the removal/retention).
• The court accepted expert evidence (Swiss-law expert) that under the relevant provisions of the State's civil code the Petitioner's consent was required for either a temporary removal from The State or continued retention outside The State when parents exercise joint parental responsibility.
• The court found that, as soon as the Respondent failed to return the child by midnight on the agreed date (29 June 2025) and particularly when the child was brought to The State on 5 July 2025 without the Petitioner's consent, the child's presence outside The State was wrongful for the purposes of the Convention.
• The court considered and rejected the Respondent's submissions that the case should be confined to a narrow pleaded date and that the judge erred by considering a broader timeframe; the appellate court held that the judge's approach was supported by the expert evidence and the facts and that any imprecision on the exact date did not affect the outcome.
• The court emphasised that issues of habitual residence and any claim of its change were not advanced by the Respondent and were therefore not determinative; the material supported Switzerland as the State of habitual residence at the relevant time.

2. Article 13(b) defence — grave risk on return

• The court applied the established test (assuming the Respondent's averments to be true for assessment) and balanced the assessed risks against available protective measures in The State.
• The judge found there was a small risk of future physical abuse but a greater risk of psychological harm caused indirectly to the child through threatening communications and financial control directed at the Respondent. The court accepted that the risk could potentially affect the child's welfare via its impact on the Respondent.
• However, the court identified and gave weight to existing and readily available protective measures and ongoing proceedings in The City court, including a specific The City court order of 18 September 2025 setting out measures to address the child's welfare and to provide legal/financial protections and sanctions for breach.
• The appellate court reviewed criticisms of the first-instance findings (for example on accommodation and the Petitioner's partial non-payment of maintenance) and concluded that, although the Lord Ordinary had overstated the Petitioner's compliance with orders in one respect, he had properly taken into account the relevant materials overall.
• On accommodation and costs, the court concluded there was documentary support for the availability of accommodation options and for mechanisms (advance legal costs order and state-funded legal aid) by which the Respondent could seek assistance in The City proceedings, and these factors weighed against finding a grave risk that would bar return.
• Balancing the risks and the mitigations available in the State of habitual residence, the court concluded that the article 13(b) defence had not been established on the material before the judge.

Holding and Implications

RECLAIMING MOTION REFUSED.

Direct consequences and practical implications (as stated in the opinion):

• The court adhered to the Lord Ordinary's interlocutor (order) requiring the child's return to the State, but substituted 5 January 2026 as the date by which the child must be returned (the earlier date fixed by the Lord Ordinary had passed).
• The court reserved all questions of expenses for the meantime.

Broader implications: The opinion explains and applies established principles governing wrongful removal/retention under article 3 and the article 13(b) grave risk defence, and it emphasises the role of protective measures and ongoing proceedings in the state of habitual residence. The court did not purport to lay down a new legal precedent; its decision applied existing authorities to the facts of this case.

---

Panel: Judge Wise (delivering the opinion), Judge Clark, Judge Carmichael. Legal representatives recorded in the opinion were Attorney Laing for the Petitioner and Attorney Cartwright for the Respondent.