DBH, Petitioner [2025] CSOH 67 (Court of Session, Outer House)

International child abduction — application under the Child Abduction and Custody Act 1985; habitual residence; objections to return; welfare considerations under the Hague Convention

Background

This Court of Session decision, issued by the Outer House, concerned an application for the return of a child under the Child Abduction and Custody Act 1985, which incorporates the Hague Convention on the Civil Aspects of International Child Abduction into Scots law.

The petitioner sought an order for the return of the child to the country of habitual residence, arguing that the child had been wrongfully retained in Scotland. The respondent opposed the application, advancing objections based on the child’s circumstances following relocation and the alleged impact of return.

Legal framework

The court considered the statutory framework of the 1985 Act and the Hague Convention. The central questions were whether the child was habitually resident in the requesting state immediately prior to the alleged wrongful retention, whether the retention was in breach of custody rights, and whether any of the limited Convention defences were established.

The court emphasised that Hague proceedings are not welfare determinations in the domestic sense. The focus is on prompt return, subject only to the narrow exceptions set out in the Convention, including objections by a mature child and the grave risk defence.

Key legal issues

• determination of the child’s habitual residence immediately prior to retention;
• whether the retention was wrongful for the purposes of the Hague Convention;
• assessment of the respondent’s reliance on Convention defences, including objections to return;
• the limited role of welfare considerations in Hague proceedings; and
• the court’s discretion where an exception is established.

Evidence and reasoning

The court examined evidence relating to the child’s life before and after the move, including schooling, family arrangements, and the degree of integration in the alleged state of habitual residence. The petitioner argued that the child’s centre of life remained firmly rooted in the requesting state and that any change was recent and unilateral.

The respondent contended that the child had become settled in Scotland and that a return would be disruptive. Objections said to be expressed by the child were also relied upon. The court scrutinised the nature, consistency and independence of those objections, bearing in mind the child’s age and maturity.

The court reiterated that habitual residence is a factual concept requiring an assessment of stability and integration, not parental intention alone. It further stressed that objections to return must be more than a preference; they must reflect a degree of maturity and be genuinely held.

Decision

The court concluded that the child was habitually resident in the requesting state immediately prior to the retention and that the retention was wrongful within the meaning of the Hague Convention. The respondent failed to establish any Convention defence sufficient to justify refusal of return.

An order for the return of the child was therefore granted. The court made clear that issues relating to long-term welfare, residence and contact were matters for determination by the courts of the state of habitual residence, not the Scottish courts in Hague proceedings.

Rooney Family Law commentary

This decision reinforces the strict and summary nature of Hague Convention proceedings in Scotland. Courts will not be drawn into a broad welfare analysis or allow Hague applications to become a proxy for residence disputes. The focus remains firmly on habitual residence and prompt return.

The case also illustrates the high evidential threshold required to resist return based on objections or settlement arguments. Parents opposing return must demonstrate more than disruption or preference; the Convention exceptions are deliberately narrow.

International child cases require swift, specialist advice. Delay can be fatal to an application or defence, and early strategic decisions often determine the outcome. At Rooney Family Law we regularly advise on international child abduction, relocation and cross-border jurisdiction issues, ensuring cases are handled with urgency and precision.

Key takeaway

DBH, Petitioner [2025] CSOH 67 confirms that Scottish courts will robustly apply the Hague Convention framework. Where a child is found to be habitually resident abroad and no Convention defence is made out, return will be ordered, with welfare issues left to the courts of the appropriate jurisdiction.

Citation: DBH, Petitioner [2025] CSOH 67 (Court of Session, Outer House)

Judgment:

ScotCourts full-text judgment (PDF)