The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) rests on a presumption that children wrongfully removed or retained away from the country of their habitual residence should be returned swiftly, leaving long-term welfare determinations to the courts of that state. Article 13(b) of the Convention creates an exception to that imperative to return, where it is established that return would result in placing a child at grave risk of harm or in an intolerable situation.
The decision of the UK Supreme Court in Petition of DM 1 and DM2, handed down on 8 July 2026, addresses, for the first time at the highest appellate level, a question that sits at the heart of modern children’s rights jurisprudence namely the interplay between the child’s right to express a view and the “grave risk” defence to return. The questions considered by the Supreme Court included whether the views of a mature child who actively wishes to return to the state of their habitual residence, are relevant to the assessment of grave risk of harm and intolerability and whether the court’s discretion to order return survives the establishment of the Article 13(b)” grave risk” defence. These questions carry implications that extend well beyond the immediate circumstances of the family involved.
Background
Both parents were British citizens holding United States green cards. They had lived with their sons H, then aged fourteen, and B, aged eight, in the US before travelling to Scotland in July 2025 for what was intended to be a short holiday. During that trip the mother informed the father that she intended to remain in Scotland with the children and she obtained an interim interdict in the local sheriff court preventing their removal from the jurisdiction of that court. The father raised a petition under the Child Abduction and Custody Act 1985 for the children’s summary return to US under the Hague Convention. It was not disputed that the boys were habitually resident in US and that their retention was wrongful. The mother’s defence rested on Article 13(b), that there was a grave risk of harm to the children were they to return to the US. The elder child, H, was separately represented and supported a return to the US.
The mother's Article 13(b) defence centred upon a number of factors, including her own adverse mental health. Expert evidence established that a return order would have an immediate and severe negative impact on her mental health, and that impact would have consequences for both boys which would be profound and enduring. The father's financial reliability and the certainty of schooling and healthcare provision on return were also contested. The Lord Ordinary later found that his evidence had been unreliable and that the boys would require to attend public school rather than the private institutions the father had represented.
H, by mid-August 2025, had come to live with his father. His wish to return to the US was unwavering throughout. He instructed solicitors and was separately represented at every stage of the proceedings. He was the second appellant in the proceedings before the Supreme Court.
The legal framework
Three questions of law arose. Firstly, whether the intolerability limb of Article 13(b) demands a wholly objective inquiry considering what circumstances a child should not reasonably be expected to tolerate or whether a particular child's subjective response to those circumstances is also relevant. Secondly, whether a genuine discretion to order return survives the establishment of an Article 13(b) defence. Thirdly, whether Article 12 of the UNCRC (requiring that capable children's views be given due weight) applies both to the threshold assessment of grave risk and to any subsequent exercise of discretion.
Decisions in the lower courts
Lord Braid (Lord Ordinary, Outer House, [2025] CSOH 109) refused return in respect of B, finding the Article 13(b) defence established on the totality of the risk to the mother's mental health and associated practical uncertainties. In respect of H, he reached the opposite conclusion. He reasoned that the concept of intolerability is not hermetically sealed from the individual child's perspective, and that for a fourteen-year-old with insight into his mother's fragility who had chosen to live with his father and expressed a rational wish to return, the calculus differed materially from that applicable to his younger brother. The Article 13(b) defence was not made out for H. Lord Braid indicated he would have in any event exercised his discretion to order return having regard to H's views.
The Inner House (Extra Division, [2026] CSIH 9) allowed the mother's reclaiming motion. It held that the Lord Ordinary had erred in law. The Inner House held that the intolerability assessment is wholly objective, and a child's subjective willingness to endure circumstances that would otherwise be intolerable is as legally irrelevant as a child's acceptance of physical danger would be to a finding of grave risk. Leaving out H's views from the analysis, the Extra Division found the Article 13(b) defence established in his case as in B's. On discretion, following the observations of Baroness Hale in In re D (Abduction: Rights of Custody) [2006] UKHL 51 and In re M (Abduction: Rights of Custody) [2007] UKHL 55, the court considered it "inconceivable" that return would be ordered once grave risk was established, effectively foreclosing meaningful discretion.
Arguments in the Supreme Court
The appellant father argued that the Inner House had misconstrued the House of Lords authorities on which it relied. The Baroness Hale formulation (that "intolerable" means a situation "which this particular child in these particular circumstances should not be expected to tolerate") was inherently particularised and demanded reference to the individual child's own experience. The "inconceivable" formula was obiter in both In Re D and In Re M and could not have ossified into a rule of law that extinguishes a genuine discretion. Additional authorities were cited to support the proposition that a mature child's views may, in the exercise of discretion, be determinative.
H himself, through separate representation, advanced that hearing a child and then treating his views as substantively irrelevant to the very question of intolerability was indistinguishable in substance from not hearing him at all, an outcome directly contrary to the obligations imposed by Article 12 UNCRC and, in Scotland, by the 2024 Act.
For the respondent mother it was submitted that the Inner House was correct. Permitting a child's expressed preference to determine the factual threshold of intolerability would allow a child to elect to suffer harm (an outcome antithetical to the Convention's protective rationale and to the primacy of best interests under Article 3 UNCRC). It was argued that there is a distinction between the two stages: at the threshold stage, a child's views are relevant as factual material but irrelevant to the legal assessment of grave risk. Only at the discretion stage do they properly assume significance. The mother’s case rested on the existence of a grave risk of harm, even if H’s views were to be considered by the court. In the alternative it was argued that even of the court concluded that the child’s views ought to have a bearing on tolerability of itself and that the Inner House had erred in concluding that they did not, the court should nonetheless refuse the return of the child given the evidence of intolerability and that the risk of harm arising outweighed the child’s desire to return.
The Supreme Court granted permission to intervene to three organisations spanning the practical and academic dimensions of international child abduction law: Reunite International Child Abduction Centre, the International Academy of Family Lawyers, and the International Centre for Family Law, Policy and Practice. Their participation underlines the wider significance of this decision for Hague Convention practice across contracting states and for the development of child participation rights in cross-border proceedings.
The interveners submissions varied, each providing authorities which they consider would be helpful to the court’s assessment of the legal issues at hand.
The Supreme Court's Decision
Giving effect to the principle that Hague Convention proceedings are to be dealt with expeditiously, the Supreme Court pronounced its decision orally on 8 July 2026, with a written judgment to follow.
The court held that the Extra Division had fallen into error. The Inner House was wrong to hold that the Lord Ordinary erred in law by taking H's views into account when assessing whether his return would expose him to an intolerable situation. A child's views are legally relevant to that assessment.
However, the Supreme Court also found that the Lord Ordinary should not have ordered H's return. On the evidence, the only reasonable conclusion available was that there was a grave risk that return would expose H to psychological harm, and that his return would place him in a situation he should not reasonably be expected to tolerate. The Article 13(b) defence was accordingly made out and the appeal was dismissed.
Significance
The decision settles, at the highest level, that the intolerability inquiry under Article 13(b) is not conducted in isolation from the child's own perspective. A child's views form part of the relevant factual matrix against which the question of grave risk of harm and intolerability are to be assessed. The Inner House's categorical exclusion of such views was an error of law. The Supreme Court reached the same ultimate outcome as the Inner House (that the child should not be returned to the country of his habitual residence) but on materially different legal reasoning which confirms, rather than extinguishes, the child's substantive voice in the analysis.
Whilst H's views were held to be relevant to the assessment, they were not held to be determinative. The court's conclusion that the only reasonable outcome on the evidence was grave risk and intolerability (even taking H's wishes fully into account) suggests that the threshold was met by weight of objective circumstance rather than transformed by his subjective preference. The full reasoning, when published, will be essential reading for those advising in cross-border child abduction proceedings across all Hague contracting states.
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