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Petition of DM (Court of Session)
Factual and Procedural Background
This opinion, delivered by Judge Carmichael sitting with Judge Armstrong and Judge Ericht, concerns a reclaiming motion arising from an application under the Child Abduction and Custody Act 1985. The Petitioner sought the summary return of two sons to The State: the Second respondent (aged 14) and Child B (aged 8). The Lord Ordinary ordered the return of the Second respondent but refused to order the return of Child B. Both parents are British citizens and lawful permanent residents of The State; the family had been habitually resident in The State before travelling to The City for a planned holiday in July 2025. The First respondent retained the children in The City and raised proceedings in The Court, obtaining an interim interdict preventing the Petitioner from removing the children from her care and control. The retention was accepted as wrongful under Article 3 of the 1980 Hague Convention. The First respondent relied on Article 13(b) of the 1980 Hague Convention, asserting a grave risk that return would expose each child to physical or psychological harm or otherwise place him in an intolerable situation.
Legal Issues Presented
- Whether the Lord Ordinary erred in law in refusing to order the return of Child B under Article 13(b) and related grounds advanced on appeal by the Petitioner.
- Whether the Lord Ordinary erred in law by taking into account the Second respondent's views when assessing whether return would place him in an intolerable situation under Article 13(b).
- Whether the evidence regarding the First respondent's mental health, and the risk of suicide, established a grave risk under Article 13(b) to either child if returned.
- Whether the Lord Ordinary should have afforded Child B an opportunity to express his views specifically on the possibility that the Second respondent might be returned without him, and the weight to be afforded to each child's views.
Arguments of the Parties
Petitioner's Arguments
- Child B should have been given an opportunity to express his views on the possibility of the Second respondent being returned without him, and the Lord Ordinary gave insufficient weight to those views.
- The Lord Ordinary erred in concluding there was a grave risk that Child B would be placed in an intolerable situation; upset and potential harm did not meet the "grave risk" threshold.
- The Lord Ordinary failed to consider protective measures (including therapy) available in The City that could mitigate risk, and overstated the ongoing suicide risk after medical intervention.
- The Lord Ordinary should not have proceeded on an assumption that return to The State would be determinative of longer-term residence with the Petitioner.
First respondent's Arguments
- The views of the children are relevant in some respects but are not determinative of a grave-risk Article 13(b) defence; in a grave-risk case the child's views do not substitute for the objective assessment required.
- The Lord Ordinary properly considered the cumulative factors bearing on risk and was entitled to distinguish between the two children based on the evidence.
- The Lord Ordinary did not err in relation to influence, separation, or other evidential matters raised by the Petitioner.
Second respondent's Arguments
- The Second respondent opposed the First respondent's reclaiming motion and asked the court to respect his views; interference with the Lord Ordinary would require a finding the decision was plainly wrong.
- The Second respondent relied on authority that the older child's objections can carry significant weight in return proceedings.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| In re E (Children) [2011] UKSC 27, [2012] 1 AC 144 | The construction of Article 13(b): the risk must be "grave"; distinction between seriousness of harm and likelihood; definition of "intolerable" as what a particular child should not be expected to tolerate. | Described as the leading authority on Article 13(b); used to determine that "intolerable" is an objective test and that subjective willingness of the child is not relevant to establishing a grave risk. |
| In re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 | Authority on the meaning of "intolerable" and the requirement to hear the child (Article 12 compliance) in Hague Convention return proceedings. | Relied upon for the requirement that children be given the opportunity to be heard and for the objective assessment of intolerability. |
| In re M (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 | Principle that it is inconceivable to return a child where the court has concluded there is a grave risk under Article 13(b). | Applied to conclude the court would not exercise discretion to return the Second respondent where a grave risk of an intolerable situation was found. |
| AD v SD [2023] CSIH 17, 2023 Fam LR 52 | Authority that a party's subjective perception leading to a risk to her mental health can found an Article 13(b) defence. | Used to support the proposition that a parent's mental health risk can, in principle, ground Article 13(b). |
| In re D (paragraphs on hearing the child) | Requirement and presumption that the child will be heard in return proceedings; hearing is distinct from giving effect to the child's views. | Referred to in assessing procedural requirements to hear the children and compliance with Article 12 of the UNCRC. |
| FPS v SM [2024] CSIH 20, 2025 SC 61 | Contextual reference to UNCRC (Incorporation) (Scotland) Act 2024 and relations with existing obligations. | The court expressed doubt that the 2024 Act applied to proceedings under the 1985 Act but confirmed compliance with Article 12 of the UNCRC remains required. |
| G v G (Minors: Custody Appeal) [1985] 1 WLR 647 | Standard that appellate interference requires that the lower court's decision be plainly wrong. | Cited by the Second respondent in support of resisting interference with the Lord Ordinary's decision. |
| TS v S [2024] CSIH 24, 2025 SC 76 | Example where objections of relatively young children to return have prevailed. | Relied on by the Second respondent to show that children's objections can be decisive in appropriate cases. |
| Singh v Singh 1998 SC 68 | Authority on the relevance of a child's views in cases based on the child's objections. | The court distinguished Singh as a child-objections case and held it did not assist where the issue is grave risk under Article 13(b). |
Court's Reasoning and Analysis
The court reviewed the Lord Ordinary's factual findings and approach to the evidence and accepted most findings on education, accommodation, finances, influence, domestic abuse and the First respondent's mental health as open to the Lord Ordinary on the material before him. The Lord Ordinary had received reports from a chartered clinical psychologist and a consultant forensic clinical psychologist; he accepted that the First respondent suffered from adjustment disorder and that, on the material, the possibility of a further suicide attempt could not be ruled out. The Lord Ordinary had viewed the factors cumulatively and found Article 13(b) made out in relation to Child B.
On appeal the court considered four interrelated analytic points: (1) the proper role of a child's expressed views in assessing whether return would "otherwise place the child in an intolerable situation" under Article 13(b); (2) whether the Lord Ordinary erred in his weighting of Child B's views and in not allowing Child B to comment on the prospect of separation; (3) whether the availability of treatment and protective measures in The City undermined the conclusion of grave risk; and (4) whether the Lord Ordinary erred in distinguishing between the two children.
The court analysed the law in light of In re E and In re D and concluded that the assessment of whether a situation is "intolerable" is an objective enquiry. The court held that the child's subjective willingness to tolerate a situation cannot be factored into the assessment of whether the situation is objectively intolerable under Article 13(b). Accordingly, the Lord Ordinary erred in taking the Second respondent's wishes into account when assessing whether return would place him in an intolerable situation. Removing the Second respondent's views from that assessment, the court found no proper basis to distinguish between the Second respondent and Child B on the cumulative factors identified by the Lord Ordinary.
The court attached particular weight to the risk of very serious harm to the Second respondent should the First respondent complete suicide and found that, in combination with the other factors (uncertain accommodation, education and health insurance, separation from the First respondent, the Petitioner's uncertain means), there was a grave risk that return would place the Second respondent in an intolerable situation. The court rejected the Petitioner's contention that the availability of cognitive behavioural therapy and other services in The City operated as a protective measure sufficient to vitiate the Lord Ordinary's conclusions about grave risk.
The court also addressed procedural issues about hearing children: it reiterated that children must be given the opportunity to be heard in return proceedings and noted concerns that there had been limited independent assessment of the Second respondent's maturity and possible influence upon him, but this did not alter the legal error identified in the Lord Ordinary's assessment.
Holding and Implications
DISPOSAL: The court refused the Petitioner’s reclaiming motion and allowed the First respondent’s reclaiming motion. The Lord Ordinary’s interlocutor of 21 November 2025 was recalled: the First respondent's pleas-in-law were sustained in respect of both children, the pleas-in-law for the Petitioner and the Second respondent were repelled, and the prayer of the petition was refused in respect of both children.
Implications: The court clarified that, for Article 13(b) of the 1980 Hague Convention, the question whether return would "otherwise place the child in an intolerable situation" is an objective one and the child's subjective willingness to tolerate the situation should not be taken into account in determining whether a grave risk exists. Applying that legal principle to the facts, the court held there was a grave risk that return of the Second respondent would place him in an intolerable situation and would not exercise discretion to order return. The direct effect is that neither child is ordered returned to The State in these proceedings.
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