The Inner House refused the return of either child to Florida, recalling an order that the elder boy be returned, and expressed concern that the first-instance judge had no independent assistance in assessing a 14-year-old’s maturity and the influences upon him.
Background
The father applied under the Child Abduction and Custody Act 1985 for the return of his two sons, H aged 14 and B aged 8, to Florida. Both parents are British citizens holding a green card, and the family had been living in Florida until they all travelled to the United Kingdom in July 2025. There was no dispute that the boys were habitually resident in Florida.
The Lord Ordinary ordered that H should be returned to Florida but refused to order the return of B. Both parents reclaimed: the father argued both boys should have been returned, the mother that neither should. H was separately represented, as he had been at first instance, and supported the Lord Ordinary’s decision.
The decision
The court refused the father’s reclaiming motion and allowed the mother’s. It recalled the Lord Ordinary’s interlocutor of 21 November 2025, sustained the mother’s pleas-in-law in respect of both children, repelled those for the father and for H, and refused the prayer of the petition in respect of both children. Neither child was ordered to be returned.
Among the matters weighing with the court was that separating the children from their mother would be upsetting for, and potentially harmful to, them.
The court’s observation on independent assessment
The court recorded a matter of concern regarding H’s position. H had received legal advice at an early stage and was designed in the schedule for service as care of his solicitors, and his legal advisers would have assessed professionally and conscientiously his capacity to provide instructions. The court intended no criticism of them.
However, assessing capacity to instruct is a different exercise from reporting on a child’s maturity and on the incidence of any improper influence upon him. It was a matter of concern that the Lord Ordinary had no independent assistance on those matters, particularly where the child had come during the proceedings to face the reality of a serious mental health crisis in his mother’s life, was expressing views about its effect on him, and had come to be in his father’s care.
Why this decision matters
A child being separately represented does not supply the court with an independent view of that child’s maturity or of any influence upon them. Solicitors assess capacity to instruct; that is a narrower question. Where a child’s views are central and the family circumstances are volatile, separate independent reporting should be considered.
The potential harm of separating siblings from a parent can outweigh the Convention’s strong policy of prompt return, on the facts of a particular case.
A split outcome at first instance, returning one child and not the other, is vulnerable on appeal where the practical consequence is the separation of siblings.
Legal review: Brian Rooney, Managing Partner and Law Society of Scotland Accredited Specialist in Family Law.