In the Petition Of DM [2026] UKSC 32

The Supreme Court held that a child's own views may be taken into account when assessing whether return under the Hague Convention would create a grave risk of harm or an intolerable situation under article 13(b). However, on the Lord Ordinary's findings — including a real risk of the mother's suicide — the defence was established, and the appeal against the refusal to return 14-year-old H to the USA was dismissed.

Facts

F (the father), M (the mother) and their two sons, H (aged 14) and B (aged eight), lived in Florida. On 14 July 2025 the family travelled to the UK for a three-week holiday. On 26 July 2025, while in Scotland, M told F that she intended to remain there with the children. F did not consent and, on 1 August 2025, petitioned under article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (incorporated by the Child Abduction and Custody Act 1985) for the children’s return.

M did not dispute wrongful retention within article 3, but relied on the article 13(b) defence, contending that return would expose the children to a grave risk of psychological harm or otherwise place them in an intolerable situation. She relied cumulatively on: the lack of proper education (the family having moved from private schooling to homeschooling); house moves, homelessness and an unstable lifestyle stemming from F’s precarious finances; lack of secure future accommodation; absence of health insurance; allegations of coercive, controlling and verbally abusive behaviour by F; and, centrally, her own mental health.

M had a long history of depression, an overdose with suicidal intent in 2006, and bereavement by her brother’s suicide in 2022. On 2 September 2025 she took a substantial overdose and was discovered unconscious by B. She stated that she would remain in Scotland even if a return order were made. Professor Macpherson, consultant forensic clinical psychologist, diagnosed Adjustment Disorder that would persist while proceedings continued, and considered that repetition of her actions remained a risk if she continued to feel out of control. Dr Edward, chartered clinical psychologist, addressed the impact on the children, including that M’s suicide “would be traumatic for the children and bring unavoidable and significant negative mental health consequences.”

H was a party, legally aided and separately represented. He filed affidavits stating a strong wish to return to the USA, principally to complete his schooling there, and saying that even if M did not return he would keep in contact and visit her; he did not think he would blame himself if her mental health declined and she again overdosed.

The decisions below

The Lord Ordinary (Lord Braid, [2025] CSOH 109) found M’s refusal to return genuine rather than tactical, that there was a real risk of a further suicide attempt, and that M’s suicide would cause the children extreme psychological harm. He upheld the article 13(b) defence for B but not for H, taking H’s views into account in assessing whether the situation would be “intolerable” for him, and stating that in any event the defence, if made out, would have been “so borderline” that he would have exercised his discretion to return H.

An Extra Division ([2026] CSIH 9), in an Opinion by Lady Carmichael, held that the Lord Ordinary erred in law in taking H’s views into account, found the defence established once those views were excluded, declined to exercise discretion to order return, and recalled the Lord Ordinary’s interlocutor. F’s reclaiming motion regarding B was refused and was not appealed.

Issues

The court identified four issues: (1) whether the views of the child in respect of whom return is sought can be taken into account in assessing whether there is a grave risk that return would expose him to psychological harm or otherwise place him in an intolerable situation; (2) whether the Inner House ought not to have interfered with the Lord Ordinary’s exercise of discretion to return H notwithstanding the defence, and whether the Inner House itself erred in exercising discretion (including by failing to take H’s views into account and by treating Lady Hale’s observation in In re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51; [2007] 1 AC 619 as a rule of law); (3) whether, if H’s views were relevant, the Lord Ordinary was obliged to resolve whether those views reflected manipulation by F; and (4) whether, even taking H’s views into account, the Lord Ordinary’s analysis of the risk of harm was flawed such that the defence was established.

Arguments

F and H argued that H’s views were relevant to the article 13(b) assessment; that the Lord Ordinary was entitled to exercise his discretion to order return even if the defence was established; that the Inner House failed to take H’s views into account in exercising discretion; and (F) that the Inner House treated Lady Hale’s approach in In re D as a rule of law overriding the discretion. When asked about disposal, the only reason advanced for a rehearing was that the risk of M’s suicide might have reduced because no return order was made for B.

M argued that what is “intolerable” is an objective question and that the Lord Ordinary erred in taking H’s subjective wishes into account; that if the views were relevant, the Lord Ordinary should have resolved whether they were the product of F’s manipulation; and that, in any event, his analysis of the risk of harm was flawed, so the Inner House’s order should be upheld.

Written interventions were received from the International Academy of Family Lawyers, Reunite International Child Abduction Centre, and the International Centre for Family Law, Policy and Practice.

Judgment

Lord Stephens and Lord Snowden gave a single judgment, with which Lord Reed, Lady Simler and Lord Doherty agreed. The court had announced its unanimous decision on 8 July 2026 with reasons to follow.

Issue 1: the child’s views are relevant

Drawing on In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] 1 AC 144, In re D, and In re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55; [2008] AC 1288, the court reaffirmed that the burden lies on the opposing party on the balance of probabilities; that the risk must be “grave” rather than merely real; and that whether a situation is intolerable is an objective question judged by reference to the particular child and circumstances. The court also emphasised the relationship between the seriousness of harm and the level of risk needed to qualify as grave.

The court held that the child’s views can be taken into account across article 13(b), rejecting the Lord Ordinary’s suggested distinction between physical or psychological harm and being placed in an intolerable situation. It observed that no such distinction appears in In re D, in the EU instruments referred to, or in the HCCH 1980 Child Abduction Convention Guide to Good Practice Part VI. It noted that hearing the child is not to be confused with giving effect to the child’s views, and that:

“there would be no point hearing from a child if the court were then to hold as a matter of law (as the Inner House did) that the child’s views should be left out of account.”

The court added that it is inappropriate to hear from a child, generally or on a specific matter, where doing so is not in the child’s best interests, but that “[t]he voice of the child should not be stifled by an overly paternalistic approach.” The approach was said to be consistent with article 12 UNCRC and with Strasbourg jurisprudence, including MP v Greece (Application No 2068/24). No party submitted that Hague proceedings are a “relevant function” under section 6 of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024, and the court left that point open. The Inner House therefore erred, though H’s views were not determinative.

Issue 2: discretion

The Lord Ordinary’s two reasons for exercising discretion to return H were both wrong. First, the terminology of a “borderline” defence was inappropriate: “The decision as to whether a grave risk identified in article 13(b) has been established is a binary decision. Either it has or it has not.” Secondly, while H’s views could and should be taken into account in the discretionary exercise, on the hypothesis of a grave risk of extreme psychological harm the Lord Ordinary should have given “the most anxious consideration” as to why he should nevertheless expose H to that risk; instead he applied a concept of relative intolerability and “turned Lady Hale’s views on their head”. The Inner House was accordingly entitled to set aside and re-exercise the discretion, and, on a fair reading of Lady Carmichael’s Opinion, had not treated In re D at para 55 as a rule of law. F’s ground was dismissed.

Issue 3: manipulation

The court held that where a child’s views have been manipulated so that they are not authentically their own, very little or no weight should attach to them, and determining authenticity is central. However, the question was whether the Lord Ordinary’s decision not to resolve the disputed manipulation allegation on the summary evidence was wrong. It was not: it was a decision he was entitled to reach. M’s ground was dismissed, but that decision had consequences for the weight attributable to H’s views.

Issue 4: the defence was established

On the Lord Ordinary’s own findings — M’s genuine refusal to return, a real risk of suicide, and extreme psychological harm to the children if it eventuated (a consequence accepted by F’s counsel) — this was “a paradigm case of a low risk of really serious psychological harm qualifying as grave”. Additional cumulative factors compounded the risk. H’s views could not bear the weight placed on them: their authenticity was unresolved, and, critically, H’s affidavit assumed his mother would remain alive and never addressed his reaction if she actually committed suicide, which it would have been “completely inappropriate” to ask him to contemplate. There was therefore nothing to weigh against the central risk. The only reasonable conclusion was that the defence was established.

Disposal

The court determined the application itself rather than remitting, noting that Hague jurisdiction is summary and not a “wait and see” jurisdiction, that it had full findings of fact, that no evidence supported the suggested reduction in suicide risk, and that the Convention would cease to apply to H within a year on his turning 16. The appeal was dismissed for reasons different from those of the Inner House, whose order refusing return was affirmed.

Implications

The decision settles, at the highest level in a Scottish appeal, that a child’s views are admissible and relevant across the whole of article 13(b), not merely to a separate “child’s objections” exception, and not confined to the “intolerable situation” limb. It rejects any distinction between the harm limb and the intolerability limb for this purpose. Equally, the court stressed the objective character of the intolerability test: the child’s willingness to tolerate harm does not convert an objectively intolerable situation into a tolerable one, as the illustration of a child claiming to be strong enough to tolerate extreme harm makes clear.

Practically, practitioners should note: the binary nature of the grave risk finding, with “borderline” language discouraged; the requirement of anxious consideration before exercising discretion to return where a grave risk has been found, consistent with Lady Hale’s approach in In re D and In re M; that allegations of a parent’s refusal to return or of suicide risk are not to be taken “as if true” under the staged In re E approach but scrutinised with great care, following In re R (Children) [2024] EWCA Civ 1296; [2025] Fam 67; and that once a real risk of parental suicide is established, the gravity of the consequences means even a small risk may satisfy article 13(b).

The judgment also underlines the importance of the evidential scope of a child’s stated views: views that do not engage with the specific risk identified cannot mitigate it, and courts should not put inappropriate questions to children. Where manipulation is alleged, courts should try to determine authenticity, but a summary decision not to resolve the issue may be legitimate — with the consequence that reduced weight attaches to the views.

Limits should be noted. Whether Hague proceedings engage section 6 of the 2024 Act was left undecided, no party having argued the point. The outcome turned on the Lord Ordinary’s specific findings, including that M’s refusal to return was genuine, and the court expressly disclaimed deciding any long-term welfare question about H.

Verdict: The Supreme Court unanimously dismissed the appeals of F and H, but for reasons different from those given by the Inner House. It held that the Inner House erred in law in holding that the Lord Ordinary should not have taken H’s views into account in assessing grave risk under article 13(b); H’s views were relevant, though not determinative. F’s ground of appeal on the exercise of discretion was dismissed, as was M’s ground concerning the Lord Ordinary’s failure to resolve the manipulation allegation. M’s ground that the Lord Ordinary’s risk analysis was flawed was allowed: on his own findings, the only reasonable conclusion was that there was a grave risk that H’s return would expose him to psychological harm which he could not reasonably be expected to tolerate, so the article 13(b) defence was established and there was nothing to suggest the discretion should be exercised to order return. The court determined the application itself rather than remitting, and affirmed the Inner House’s order refusing to order H’s return to the USA.

Source: In the Petition Of DM [2026] UKSC 32