Garry Sturrock

The 1980 Hague Convention on the Civil Aspects of International Child Abduction presumes that children wrongfully removed or retained from their habitual residence should be returned swiftly. Article 13(b) carves a narrow exception. Return may be refused where a grave risk exists that it would expose the child to physical or psychological harm or place the child in an intolerable situation.

In a judgment of immediate significance, the UK Supreme Court in the cases In the Petition of DM No1 and In the Petition of DM No 2 has settled whether that intolerability assessment is wholly objective and what role a child’s own expressed views may play within it.

Two British parents, both US green card holders, had been habitually resident in the US with their sons H (fifteen) and B (eight). In July 2025 the family travelled to Scotland on holiday. The mother determined she would not return, obtained an interim interdict at the local Sheriff Court, and the father petitioned the Court of Session for summary return under the Child Abduction and Custody Act 1985. Wrongful retention was not in dispute.

The mother’s Article 13(b) defence rested primarily on her mental health. She had longstanding poor mental health, and expert evidence confirmed a return order would immediately and severely worsen her condition. H had moved to live with his father by August 2025, was separately represented throughout, and maintained an unwavering wish to return to the United States.

The legal questions

Three questions arose: whether the intolerability limb of Article 13(b) is wholly objective or whether a particular child’s subjective response to their circumstances is also relevant, whether a genuine discretion to order return survives establishment of the defence, and whether Article 12 UNCRC (requiring due weight be given to a capable child’s views) applies to both the threshold assessment of grave risk and any subsequent exercise of discretion.

Decisions of the lower courts

Lord Braid (Outer House, [2025] CSOH 109) refused return for B but ordered H’s return. He reasoned that intolerability is not hermetically sealed from the individual child’s perspective. For a (then) 14-year-old who understood his mother’s fragility, had chosen to live with his father, and expressed a rational wish to return, the calculus differed materially from that applicable to B. The Article 13(b) defence was not made out for H and, had it been, Lord Braid would have exercised his discretion in favour of return.

The Inner House (Extra Division, [2026] CSIH 9) allowed the mother’s reclaiming motion. Its reasoning was that the intolerability assessment is wholly objective. A child’s willingness to endure otherwise intolerable circumstances is as legally irrelevant as a child’s acceptance of physical danger. Setting aside H’s views from the analysis, the same defence was established for him as for B. On discretion, drawing on In re D [2006] UKHL 51 and In re M [2007] UKHL 55, the court held it “inconceivable” that return could be ordered once grave risk was established, effectively foreclosing any residual discretion.

Arguments in the Supreme Court

The appeal related only to the order of H’s return to the US. 

For the father it was submitted that Baroness Hale’s formulation (that “intolerable” means a situation “which this particular child in these particular circumstances should not be expected to tolerate”) is inherently particularised and cannot be applied without reference to the individual child’s experience. The “inconceivable” formula cannot have ossified into a rule extinguishing genuine discretion. For H it was argued that hearing a child whilst treating his views as substantively irrelevant to the intolerability question is indistinguishable from not hearing him at all. It was submitted for the mother that the Inner House was correct. Permitting a child’s preference to determine the threshold of intolerability would allow a child to elect to suffer harm, an outcome antithetical to the Convention’s protective purpose and to the primacy of best interests under Article 3 UNCRC. In the alternative it was argued that, even if H’s views were relevant, the gravity of the risk outweighed his expressed wish to return.

Decision and significance

Proceeding expeditiously in accordance with the Convention’s own imperative, the Supreme Court pronounced its decision orally on 8 July 2026, with written reasons to follow. The court held that the Extra Division of the Court of Session had erred in law and that a child’s views are legally relevant to the intolerability assessment under Article 13(b). The lord ordinary had not been not wrong in law to have regard to them.

However, the court also found that the lord ordinary should not have ordered H’s return. In refusing the appeal and upholding the mother’s alternative case, it held that on the evidence, the only reasonable conclusion was there was a grave risk that return would expose H to psychological harm and place him in a situation he should not reasonably be expected to tolerate. The Article 13(b) defence was made out and the appeal was dismissed.

The decision’s importance lies in its reasoning rather than its outcome. The categorical exclusion of a child’s subjective response from the intolerability inquiry was an error of law. A child’s views, including views that favour return, form part of the factual matrix against which grave risk and intolerability must be assessed. That those views were not determinative on the particular facts does not diminish their standing. The written judgment, when published, will be essential reading for practitioners across all Hague contracting states.

Garry Sturrock is a partner at Brodies LLP