DBH, Petitioner [2025] CSOH 67 (Outer House, Court of Session)
Hague Convention return to the United States refused: the children’s objections, their settlement in Scotland, and the grave risk of an intolerable situation were all established.
Background
The petitioner father sought the return to the United States of the parties’ two children, aged 9 and 7, under the 1980 Hague Convention as given effect by the Child Abduction and Custody Act 1985. The children had been born and raised in the United States and were removed to Scotland by their mother on 25th December 2023. It was not disputed that the removal was wrongful within the meaning of the Convention. The mother resisted return on three grounds: that the children objected to being returned and were of an age and maturity at which their views should be taken into account; that, the proceedings having been raised more than a year after the removal, the children were now settled in Scotland; and that return would expose the children to a grave risk of harm or otherwise place them in an intolerable situation. After the removal, the father had obtained orders from the New York courts granting him custody, finding the mother in contempt, sentencing her in her absence to 21 days’ imprisonment, and issuing a warrant for her arrest.
The decision
Lady Tait held that all three defences were established. A court-appointed child welfare reporter found that each child clearly and authentically objected to returning, with reasons focused on their lives, school and friendships in Scotland, and that each had the age and maturity for their views to be taken into account. On settlement, the children had by then lived in Scotland for over 18 months, had completed a school year at their local primary and were integrated into their community. On grave risk, the court was not persuaded that returning the children would expose them to grave physical or psychological harm, and accepted that the New York courts could provide protective measures for risks of that kind; but the extant arrest warrant and committal order were not within the parties’ power to undo, and there was accordingly a grave risk that on return the mother, the children’s primary carer, would be arrested and imprisoned and the children removed into the care of a father they had not seen since September 2023. That would place them in a situation they should not be expected to tolerate. Exercising the discretion which arises once defences are established, the court refused to order the children’s return.
Why this decision matters
Return is the strong default in Hague cases, but this decision shows the defences doing real work. Where proceedings are raised more than a year after a removal, a child’s settlement in Scotland can defeat return, which underlines how important speed is for a left-behind parent: here the father had delayed by prioritising custody proceedings in the United States over a Hague application. It also shows that orders obtained in the home country against the taking parent can rebound, since the arrest warrant and prison sentence were central to the finding that return would create an intolerable situation for the children.
If you are dealing with an international child abduction, see our child abduction lawyers page for how these cases work and how quickly you need to act.