HL v LL [2025] CSIH 32 (Inner House, Court of Session)

Hague Convention: return of a child to Switzerland upheld on appeal; grave-risk defence failed where protective measures were in place.

Background

This appeal concerned a father’s application under the 1980 Hague Convention, as given effect in Scotland by the Child Abduction and Custody Act 1985, for the return of his young son to Switzerland. The parents, who remained married but had separated, were already engaged in proceedings about the child in the Swiss courts. The father consented to a short holiday to France; the child was not returned to Switzerland at the end of it and was instead brought to Scotland by the maternal grandfather, without the father’s knowledge, after the mother suffered a serious health episode. The mother argued that no wrongful retention had occurred and, in the alternative, that returning the child would expose him to a grave risk of harm under article 13(b) of the Convention.

The decision

The Inner House refused the appeal and upheld the order for the child’s return. It held that, from the moment the child was not returned to Switzerland, he was being wrongfully retained away from the country of his habitual residence, the father having rights of custody under Swiss law that required his consent to any change in the child’s residence. The grave-risk defence failed, in large part because the Swiss court had already put in place a detailed package of protective measures.

Why this decision matters

A return order settles only which country should decide a child’s future, not the merits of the underlying dispute, and the courts of a child’s home country are generally best placed to make welfare decisions. For any parent contemplating a move abroad with a child, or facing the removal of a child from Scotland, the decision shows how quickly and strictly the Convention operates, and how difficult the grave-risk exception is to establish where the home country’s courts have addressed protection.

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.