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Petition of IK Petitioner for orders under the Child Abduction and Custody Act 1985 (Court of Session)
Summary of Opinion: Judge Braid
Factual and Procedural Background
The parties, Petitioner and Respondent, are Hungarian, married and have a daughter, Child, born in The City in 2019 and habitually resident in The State. In 2020 the family moved to The State. In August 2025 Respondent and Child travelled to The State with Petitioner’s consent and an intention that Petitioner would join them. In September 2025 Respondent informed Petitioner the marriage was over and that she intended to remain in The State with Child. Petitioner applied under the Child Abduction and Custody Act 1985 (incorporating the Hague Convention) for Child's return to The State on the basis of wrongful retention. Respondent opposed the petition, raising defences under Article 13 of the Hague Convention (acquiescence, grave risk and Child's objection). Affidavits and a child welfare reporter's report were lodged. Judge Braid heard evidence and determined that wrongful retention occurred no later than 20 September 2025 and that the petition should be granted; practical arrangements and expenses were to be fixed by further order.
Legal Issues Presented
- Whether Child was wrongfully retained in The State such that the court should order return under the Hague Convention/1985 Act.
- Whether Respondent established Article 13(a) acquiescence by Petitioner.
- Whether Respondent established Article 13(b) grave risk or intolerable situation preventing return.
- Whether Child objects to return and, if so, whether Child is of sufficient age and maturity and whether the court should exercise its discretion to refuse return.
Arguments of the Parties
Petitioner’s Arguments
- Child was habitually resident in The State and was wrongfully retained in The State in breach of Petitioner’s custody rights.
- Petitioner withdrew consent on or before 20 September 2025 and promptly instructed counsel and initiated return processes; this shows no acquiescence.
- Facebook messages and some communications relied upon by Respondent did not clearly and unequivocally indicate Petitioner had abandoned his right to seek return.
- Allegations of domestic abuse were denied; protective measures available in The State (as described by a Hungarian lawyer's report) would mitigate risk, and Respondent had not shown those measures would be ineffective.
- Child's expressed preference to remain was shaped by influence and limited maturity; weight to be attached to those views should be small and the matter properly decided in the courts of habitual residence.
Respondent’s Arguments
- Respondent accepts initial consent to travel but contends Petitioner acquiesced to Child remaining in The State, pointing to contemporaneous communications and Petitioner’s conduct.
- Respondent alleges Petitioner was abusive; return would expose Child to grave physical or psychological harm or an intolerable situation.
- Child objects to return and has attained an age and maturity where her views should be taken into account; Child is settled and thriving in The State.
- Even if objections are considered, the court should exercise its discretion to refuse return on child-centric and welfare grounds.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| In Re C (Children) (Abduction: Rights of Custody) (International Centre for Family Law, Policy and Practice intervening) [2019] AC 1 | Authority cited on repudiatory unlawful retention (esp. para [51]). | Court relied on it in finding that the respondent unlawfully retained Child in The State no later than 20 September 2025. |
| In Re H and other (Minors) [1988] AC 72 | Leading authority on acquiescence under Article 13(a); sets out that acquiescence is subjective, burden on abducting parent, relevance of contemporaneous words/actions and exception where words/actions clearly and unequivocally indicate non-assertion of return rights. | Court applied the principles to assess Petitioner’s subjective intention and found no acquiescence. |
| Soucie v Soucie 1995 SC 134 | Party cannot be said to have acquiesced unless aware at least in general terms of his or her rights. | Used to support the legal test for acquiescence and timing of Petitioner’s awareness. |
| In Re E (Children) (Abduction) 2011 1 AC 144 | Leading case on Article 13(b) grave risk defence; establishes that risk must be grave and approach to future risk assessment. | Court adopted propositions derived from In Re E in evaluating Respondent’s grave risk plea. |
| DM, Petitioner [2025] CSOH 109 | Recent authority of the court on propositions relevant to grave risk and approach to evidence. | Court relied on propositions set out in that decision when articulating the applicable legal tests for grave risk. |
| AD v SD 2023 SLT 439 | Inner House guidance on a nuanced, staged approach where domestic abuse allegations are made; assume allegations true for the purposes of analysis and then assess protective measures. | Court followed the staged, nuanced approach in assessing domestic abuse allegations and consideration of protective measures. |
| L v H 2021 SCLR 467 | Assumption that courts of the requesting State can provide effective protection for the child absent compelling evidence to the contrary. | Court applied this assumption when evaluating protective measures available in The State. |
| Petition of JL 2024 Fam LR 26 | Other facts (non-domestic-abuse) must be proved on balance of probabilities. | Referenced to distinguish the nuanced approach applicable to domestic abuse from the standard on other factual matters. |
| R (Child Abduction Parent's Refusal to Accompany) [2024] EWCA Civ 1296 | Support for evidential approach where non-domestic facts require balance of probabilities. | Used as comparative authority on evidential standards (cited by counsel and noted by court). |
| D v D 2002 SC 33 | Rule that contradictions in affidavits without other supporting evidence prevent drawing conclusions; reference to Re AF. | Court noted the principle but applied its own approach (as in DM) that one party’s account may be rejected if there is an objectively justifiable basis. |
| Re AF (A Minor) [1992] 1 FLR 548 | Referenced in relation to the rule on contradictions in affidavit evidence. | Cited as background authority when discussing evidential limits from conflicting affidavits. |
| In Re M (Children) [2016] Fam 1 | Staged approach where child objects to return; first ask if child objects and is of sufficient age/maturity, then exercise discretion. | Court applied the staged approach when considering Child's objection and maturity. |
| In Re M (Children) (Abduction: Rights of Custody) [2008] 1 AC 1288 | Child's views are not determinative; weight depends on age, maturity and context (Baroness Hale para [46]). | Court used this to frame how much weight to attach to Child's expressed views. |
| TS v S 2005 SC 76 | Factors relevant to the discretionary stage when weighing child's views and welfare considerations. | Court cited TS v S when discussing the balancing exercise at the discretion stage. |
Court's Reasoning and Analysis
1. Wrongful retention: The court found it common ground that Child was habitually resident in The State and that Respondent retained Child in The State in breach of Petitioner’s custody rights. Applying In Re C, the court found unlawful repudiatory retention no later than 20 September 2025.
2. Article 13(a) — acquiescence: The court applied the In Re H principles (subjective test, burden on abducting parent, weight to contemporaneous words/actions and the "clear and unequivocal" exception) and Soucie. The court found Petitioner’s prompt engagement of legal proceedings and steps to secure return showed he did not acquiesce. Messages relied upon by Respondent did not amount to clear and unequivocal conduct abandoning return rights. Respondent failed to discharge the burden on acquiescence.
3. Article 13(b) — grave risk/intolerable situation: The court applied In Re E and the staged, nuanced approach in AD v SD. It assumed, absent compelling evidence to the contrary, that The State's courts and protective measures (as described in the Hungarian lawyer's report) could protect Child. Respondent did not lead evidence that those measures would be ineffective or that Petitioner would not comply with them. The parties would not be living together on return. On that basis, the court concluded Respondent did not establish a grave risk or intolerable situation preventing return.
4. Child's objection: Applying the staged test from In Re M and the authorities on weight to a child's views, the court accepted Child expressed a firm wish to remain in The State. A child welfare reporter found Child’s maturity typical for a six-year-old but noted confusion, likely influence and some inaccuracies in Child's account. The court concluded Child had been influenced and, while her views were taken into account, only limited weight was to be attached. Balancing broader welfare considerations (including family ties in The State of habitual residence, the ability to facilitate a relatively smooth reintegration and that the Hungarian courts are best placed to determine longer-term welfare), the court exercised its discretion in favour of return.
Holding and Implications
RETURN ORDER MADE
Holding: The court granted the petition and ordered that Child be returned to The State (Hungary). The court put the case out by order to make practical arrangements for the return and to deal with expenses at a subsequent hearing.
Implications: The direct effect is that Child is to be returned to the courts of habitual residence for determination of longer-term welfare issues. The decision applies established Convention principles and does not purport to set a new legal precedent; welfare questions about longer-term residence are to be resolved by the courts of habitual residence.
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