The Supreme Court has unanimously held that a child’s views can be taken into account when assessing whether the Article 13(b) defence under the Hague Convention is made out in international child abduction proceedings.
In In the Petition of DM [2026] UKSC 32, the court found that Scotland’s Inner House had been wrong to exclude the 14-year-old’s views from its assessment when it reached the decision not to return the child to the US to be with his father.
However, the court dismissed the father’s appeal and upheld the decision not to return the child, finding that there was a grave risk that his return would expose him to psychological harm which he could not reasonably be expected to tolerate.
Carolina Marín Pedreño, partner and head of the Children Department at Dawson Cornwell, acting for interveners Reunite, said the judgment “is an important step towards putting the child back at the centre of the analysis”.
“For too long, there has been a danger that Hague Convention proceedings become disputes conducted principally through the evidence of parents about their child”, she explained.
“The significance of this judgment goes beyond the particular Article 13(b) issue before the Supreme Court. It sends a clear message that children involved in international child abduction proceedings are not simply the subject of litigation between adults. Their experiences, views and understanding of their own circumstances can be directly relevant to the questions the court has to decide.”
The father (F) and mother (M) are British citizens and Green Card holders who lived in Florida for some years. In July 2025 the family travelled from the USA to the UK on holiday. Whilst in Scotland, M told F that she intended to remain in Scotland with the 14-year-old child, H , and his 8-year-old brother, B. F did not consent.
F brought a petition under the Hague Convention to return the children to the USA from Scotland under article 12, which provides that where a child has been wrongfully removed or retained, the authority concerned shall order the return of the child.
The application was opposed by M under article 13(b), which provides that the judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.
M claimed her mental ill-health gave rise to such a risk, and there would be a real risk of her committing suicide if the children were returned to the USA without her, and if she did commit suicide this would cause the children extreme psychological harm which they could not reasonably be expected to tolerate.
In the Outer House the Lord Ordinary considered H’s views and concluded he would not be placed in an intolerable situation were he to be returned, nor would there be a grave risk of his suffering psychological harm.
Even if the article 13(b) defence had been established, the Lord Ordinary would have used his discretion to order H’s return. The Outer House ordered that H be returned to the USA.
M appealed to the Inner House, which was allowed. In an opinion delivered by Lady Carmichael, Lord Armstrong and Lord Ericht agreeing, it held that the Lord Ordinary erred in law in taking H’s views into account in assessing whether the situation to which he would be returning would be intolerable for him.
Once H’s views were left out of account, the combination of circumstances to which H would be exposed on return is one which he should not reasonably be expected to tolerate and there was a grave risk that H’s return to the USA would place him in an intolerable situation. The Extra Division considered whether it should nevertheless exercise its discretion to order H’s return to the USA despite the article 13(b) defence having been made out and declined to do so.
F and H appealed to the Supreme Court, which unanimously dismissed the appeal, although for reasons different to those given by the Inner House.
They found H’s views should be taken into account in assessing whether the article 13(b) defence is established, and the Lord Ordinary was not entitled to exercise his discretion to order H’s return even if the article 13(b) defence had been established.
Whilst H’s views ought to be taken into account, the Lord Ordinary was entitled to not resolve the question as to whether those views reflected F’s manipulation of H. The article 13(b) defence was therefore established and the order not to return H should be upheld.
Lord Stephens and Lord Snowden delivered the judgment, with which Lord Reed, Lady Simler and Lord Doherty agreed.
Marín Pedreño said children of “sufficient age and maturity” should be asked “much more consistently” what they have to say about the issues before the court.
She added: “That is particularly important when habitual residence is disputed. A child’s account of where they live, where they go to school, where their friends and relationships are, and where they regard as home may provide an important perspective when the court is determining their centre of interests.
“Listening to a child does not mean allowing the child to decide the outcome. Giving them a voice is not the same as giving them the choice. The task is to hear the child, understand what lies behind their views and assess those views carefully alongside all the other evidence.
“As part of the legal team acting for Reunite, I welcome the Supreme Court’s recognition that the child’s voice must not be artificially excluded from the Hague Convention analysis. A child should not become invisible simply because the litigation is between their parents. If the court is making decisions about a child’s life, the child’s own experience should, wherever appropriate, form part of the evidence before it.”
Katie O’Callaghan is a partner in the family team at Boodle Hatfield. She said of the decision: “The child’s stated wish to return did not address the separate risk arising from the impact that a return would have on the mother’s mental health. The Supreme Court determined that even if there was a small risk of the mother’s suicide, the gravity of the consequence of suicide is such that the defence to a return to the US was established.
“The judgment highlights the careful balancing exercise required in international child abduction cases, where the consequences are profound, often determining on which side of the world a child will live. Courts must weigh a child’s views against wider welfare and risk considerations. Where a distinct grave risk is identified, a child’s general desire to return will carry limited weight if that view does not engage with that risk. The default position in such circumstances is not to return.
“This is likely to be of significant relevance to future cases involving parental mental health.”
