Case Update: ABC, Petitioner [2026] CSOH 99

The decision of the Outer House in ABC, Petitioner [2026] CSOH 99 applies the recent UK Supreme Court case In the Petition of DM [2026] UKSC 32, offering insight into how Scottish courts will interpret that new jurisprudence on international child abduction.

As family law practitioners will know, the 1980 Hague Convention on the Civil Aspects of International Child Abduction operates on the general principle that long-term decisions about the welfare of a child should be made by the state in which that child is habitually resident. The starting position is that a child who is wrongfully removed or retained from that state should be returned as soon as possible. Article 13(b) of the Hague Convention provides an exception to this general principle where returning the child would place them at grave risk of harm or otherwise place them in an intolerable situation.

Background

The petitioner is an Irish national. The respondent is a British national. The parties have two children together, now aged 10 and 3. The parties were married in Scotland, where they lived with their older child until 2022 before relocating to Ireland, where their younger child was born. It was accepted by the court that both children are habitually resident in Ireland.

The parties separated in September 2025. The family continued to live in the same house and the parties had differing views on the quality of their interactions in that period.

In late June 2026, the respondent took the children to Scotland on holiday with the consent of the petitioner. The respondent failed to return with the children on the agreed date. The petitioner travelled to Scotland and was able to have limited contact with the children. The respondent refused to return the children to Ireland and so the petitioner raised the petition seeking their return.

It was conceded by the respondent that the children had been wrongfully retained in Scotland. The respondent defended the petition with reference to Article 13(b). She averred that the children had been exposed to domestic abuse perpetrated by the petitioner and that there was a grave risk that they would be exposed to harm or placed in an intolerable situation by their return to Ireland. The respondent submitted that her economic position meant that she and the children would have to return to live with the petitioner. Her position was that the housing arrangements for the children were insecure.

Discussion of law

The Court summarised the approach to Article 13(b) in In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, noting that it had been approved in In the Petition of DM. Article 13(b) sets a high threshold, with the onus being on the respondent to prove that the child will be at grave risk if returned. A grave risk could be a substantial risk of less serious harm or a lower risk of serious harm. A situation is intolerable if it would not be reasonable to expect a child to tolerate it. This can include exposure to the physical or psychological abuse of a parent.

In In the Petition of DM, the UK Supreme Court further clarified that Article 13(b) is forward-facing and considers the prospective position of the child should they be returned. It does not require the respondent to prove conclusively that the child would be placed in that position. Protective measures available in the child’s state of habitual residence will be highly relevant.

Crucially, In the Petition of DM clarifies that Article 13(b) is an objective test that asks what the individual child in these specific circumstances could reasonably be expected to tolerate. The views of the child on whether the situation would be intolerable will be relevant, but it is for the court to determine the weight to be attached to those views.

Decision

The Outer House recognised that from the competing evidence provided, there was a risk that the children could be exposed to parental conflict upon their return to Ireland, but did not find a clear or compelling case for the risk being grave. This was in part informed by the petitioner’s commitment to finding alternative accommodation. A child welfare reporter took the older child’s views. The older child was clear that they were happy in Scotland but would prefer to return to Ireland. They considered themselves to be safe in the care of either parent in Ireland. The court determined that significant weight should be attached to the child’s views as the child had considered the tensions between their parents and, weighing this up for themselves, had concluded that they would like to return to Ireland. The court ordered the return of the children to Ireland.

Significance

ABC, Petitioner reveals the impact of In the Petition of DM on Hague Convention petitions in Scottish courts. It illustrates that the courts will consider a child’s views in determining whether the child is at grave risk in the context of the wider background to the case and with regard to the child’s understanding of the situation.