A father asked the Scottish courts to order the return of his 14-year-old son from Scotland to Florida under the Hague Convention. The Supreme Court held that the boy’s views could be taken into account when deciding whether return would expose him to a grave risk of harm or an intolerable situation, but that those views were not decisive. On the findings already made, return carried a grave risk of psychological harm which he could not reasonably be expected to tolerate, so the order refusing his return was upheld.
The family lived in Florida. During a holiday in Scotland in July 2025, M told F she intended to stay with their two sons. F did not agree and sought their return under article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980. The Convention has effect in the United Kingdom under the Child Abduction and Custody Act 1985.
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M accepted that the children had been wrongfully retained. She relied on article 13(b), which gives the court a discretion to refuse return where the person opposing it establishes a grave risk of physical or psychological harm, or of otherwise placing the child in an intolerable situation. M said she would stay in Scotland even if the children returned. Her case concerned the psychological harm the boys might suffer if her health deteriorated, alongside uncertainty over accommodation, schooling and healthcare in Florida.
The decisions below
H, who was separately represented, wanted to return to Florida with F. He understood that M might stay in Scotland and thought he could keep in touch with her. His younger brother, B, was eight.
The Lord Ordinary, the judge at first instance, accepted that M’s decision to remain in Scotland was genuine and objectively reasonable. The evidence established a real risk that she might attempt suicide if the boys returned. If she died, the consequences for both children would be extremely serious.
The judge refused to order B’s return. That decision was not under appeal in the Supreme Court.
For H, the judge distinguished between the risk of harm and the question whether a situation would be intolerable for this particular child. He considered H’s views relevant only to the second question. Giving weight to H’s wish to go back, he held that the article 13(b) defence had not been established and ordered his return. He added that he would have exercised his discretion to order return even if the defence had succeeded.
The Inner House, Scotland’s civil appeal court, held that H’s willingness to return could play no part in deciding whether there was a grave risk. Once his views were excluded, it could see no basis for distinguishing his position from B’s. It refused to order his return.
Whether the child’s views can be considered
The Supreme Court, in a unanimous judgment given by Lord Stephens and Lord Snowden, held that the Inner House was wrong on that point of principle. In Hague Convention proceedings a child can be heard, and the child’s views can be taken into account when assessing grave risk under article 13(b). That includes both physical or psychological harm and an intolerable situation. The Court rejected the Lord Ordinary’s distinction between those parts of the defence.
A child need not express a view, and age and maturity affect both whether the child should be heard and what weight to give the answer. Where the child has expressed a preference, the question is what it tells the court about the risk. A willingness to endure extreme psychological harm would carry little or no weight. So would a view shown to result from manipulation. A court can therefore hear a child, take the child seriously and still reach a decision the child opposes.
Why H’s views did not answer the risk
M argued that, even if H’s views were relevant, the Lord Ordinary’s conclusion was still wrong. The Supreme Court agreed. His findings were that M’s refusal to return was genuine, that there was a real risk she would attempt suicide, and that if that happened both children would suffer extreme psychological harm. Counsel for F had accepted that last point. In the Court’s view, a low risk of really serious psychological harm is a paradigm of a grave risk. That conclusion alone established article 13(b). Other findings compounded it: worry about M’s mental health, and uncertain accommodation, schooling, medical care and lifestyle.
H’s views had to be considered, but they could not bear the weight the Lord Ordinary gave them. First, he had not decided whether they were authentically H’s own. The Court held that he was entitled, on a summary assessment of competing evidence, not to resolve the manipulation allegation; other judges might have felt able to do so. Leaving it unresolved nevertheless limited the weight those views could carry. Secondly, H’s affidavit assumed that his mother would remain alive and that he could visit her. He did not address, and it would have been inappropriate to ask him to contemplate, his reaction if she actually died by suicide. His views about schooling and accommodation therefore did not negate or mitigate the identified risk.
The only reasonable conclusion from the Lord Ordinary’s findings was that return would expose H to psychological harm which he could not reasonably be expected to tolerate. The defence was clearly established.
Discretion and disposal
Even once article 13(b) is established, the court retains discretion to order return. The Lord Ordinary’s provisional description of the defence as “borderline” did not explain why H should be exposed to the risk the judge had identified. The Inner House had considered whether to exercise its discretion and declined to order return. The Supreme Court saw no reason to reach a different result.
The Court decided the application itself. The necessary findings were available, and proceedings intended to produce a prompt decision had already taken far longer than expected. The question was whether H should be returned under the Convention. His long-term welfare was outside the scope of the appeal.
Verdict: The Supreme Court unanimously dismissed the appeal and affirmed the Inner House’s order refusing to order H’s return to the United States, although for different reasons. H’s views were relevant to article 13(b), but the defence was established and there was no basis for exercising the discretion to return him. The Court decided the application itself and did not order a rehearing. No appeal concerning B was before the Court.
