The Supreme Court has dismissed an appeal brought by a father and his 14-year-old son seeking the boy’s return to the United States under the Hague Convention on the Civil Aspects of International Child Abduction, in a judgement that settles a previously unresolved question over whether a child’s own views can be taken into account when assessing the “grave risk” defence under article 13(b).
The case arose after the mother retained the couple’s two sons in Scotland following a family holiday in 2025, having previously lived with the family in Florida. The father sought their return under article 12 of the Convention. The mother did not dispute that retention was wrongful but resisted return under article 13(b), relying on the family’s unstable financial and housing circumstances in the USA, allegations of coercive and controlling behaviour by the father, and her own fragile mental health, including a documented history of depression and a serious attempt on her own life shortly after the proceedings began.
At first instance, Lord Braid found that the article 13(b) defence was established in relation to the younger son but not the elder, in part because he took the elder boy’s strong wish to return to Florida into account when assessing whether the situation he faced there would be intolerable for him. On reclaiming motion, an Extra Division of the Inner House disagreed, holding that the child’s subjective views had no place in that assessment and that, once excluded, the same grave risk applied equally to both boys. The Inner House therefore refused to order the elder son’s return.
The Supreme Court, in a judgement given by Lord Stephens and Lord Snowden, held that the Inner House had erred in excluding the child’s views entirely. Drawing on the House of Lords’ earlier guidance in In re D (A Child) (Abduction: Rights of Custody) and In re E (Children) (Abduction: Custody Appeal), and on article 12 of the UN Convention on the Rights of the Child, the court confirmed that a child capable of forming views should ordinarily be given the opportunity to be heard in Hague Convention proceedings, and that there is no principled basis for treating the “intolerable situation” limb of article 13(b) differently from the physical or psychological harm limb in this respect. Views expressed are not determinative and may be given limited or no weight, but excluding them as a matter of law was wrong.
Despite that finding in the father’s favour on the central legal question, the appeal nonetheless failed. The court concluded that the trial judge’s own findings, including a real risk of the mother taking her own life if separated from her sons and the accepted evidence that such an outcome would cause the children extreme psychological harm, could only sustain one conclusion: that returning the elder son would expose him to a grave risk he could not reasonably be expected to tolerate. Crucially, the boy’s evidence about his wish to return had addressed matters such as schooling and accommodation but had never contemplated his likely reaction to his mother’s death by suicide, meaning it could not offset that specific risk. The court also rejected the father’s separate argument that the judge’s alternative decision to exercise discretion in favour of return, even had the defence succeeded, should have stood, and declined to disturb the Inner House’s refusal to resolve disputed allegations that the boy’s stated views had been influenced by his father.
The court, sitting with three interveners including the International Academy of Family Lawyers, therefore affirmed the refusal to order the elder son’s return to the USA.