Inner House refuses appeal against order for return of young child to Switzerland

About this case:

• Citation:
  [2025] CSIH 32
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Wise

LL, the respondent in the original petition raised by HL seeking the return of his son, T, to Switzerland, argued on appeal that the lord ordinary erred in finding that the Hague Convention was engaged in the circumstances relied on by the father. She further argued that, in any event, returning the child to Switzerland would expose him to harm.

The appeal was heard by Lady Wise, Lord Clark, and Lady Carmichael, with J Laing, advocate, appearing for the petitioner and respondent and Cartwright, advocate, for the respondent and reclaimer.

Withheld maintenance payments

T was born in Switzerland in March 2022 and lived with his mother after the parties’ separation in April 2024. Per the terms of a Swiss court order, HL exercised contact with him, initially supervised but later with six hours of unsupervised contact on alternate Thursdays. Both parties had backgrounds of significant alcohol dependence, and in the Swiss proceedings both were ordered to undergo random blood tests to rule out any alcohol consumption.

LL was given consent to take T to France for a long weekend in June 2025, however he was not returned to Switzerland and instead was brought to Scotland by his maternal grandfather after LL suffered a serious mental health episode. HL then raised proceedings for the return of T, in which the lord ordinary found that T had been brought to Scotland without HL’s knowledge or consent and that, based on the evidence of a Swiss lawyer, even in the case of emergency a change to the child’s residence would have required his agreement or a court order.

In respect of the grave risk defence, the lord ordinary considered that there were adequate measures in place in Switzerland to mitigate any potential risk. There was no suggestion that T would be returned to the petitioner’s care, the Swiss courts having already ordered that LL would have sole de facto custody. LL contended that, on the evidence of the case, she had not sought to change the child’s place of residence when he was initially removed to Scotland, and article 3 of the Convention had not been engaged.

Counsel for the reclaimer further submitted that the lord ordinary had erred in his treatment of part of the material presented in respect of grave risk. He had not been entitled to find that the mother had accommodation available to her in Switzerland, as LL could not afford to keep her rented accommodation, and failed to consider that HL had withheld part of two maintenance payments during a dispute in which he sought to lower the amount he paid in maintenance.

Clarity and certainty

Lady Wise, delivering the opinion of the court, said of the lord ordinary’s conclusions on retention: “The interpretation of the Swiss Civil Code was a matter for expert evidence. The conclusion of that expert evidence was that the father had relevant rights of custody under the 1980 Hague Convention and that those rights required his consent to be given to either a temporary removal of the child from Switzerland or a longer-term departure. In our view, from the moment LL failed to return T to Switzerland by midnight on 29 June 2025, the child was being wrongfully retained away from his country of habitual residence. That wrong was compounded by the child being brought to Scotland by LL’s father without HL’s knowledge or consent.”

She added: “The limits of HL’s consent to T’s removal from Switzerland were very clear and were restricted to a 3-day period. Regardless of LL’s intentions either while she was in France, in hospital in Switzerland or subsequently, T’s retention in Scotland engaged article 3 of the Convention.”

Turning to the grave risk defence, Lady Wise said: “In addition to detailed evidence about the available measures, including sanctions for breaching them, available in the state of habitual residence, the judge had the Sion court’s order of 18 September 2025 listing what measures would be in place following a return. These include, as the lord ordinary put it, a ‘ready-made package of provisions designed to meet T’s welfare needs’ that will take effect immediately. It is unusual for first instance judges in this jurisdiction to be provided with that level of clarity and certainty from the court of habitual residence.”

She concluded: “The lord ordinary does appear to have overlooked HL’s withholding part of the maintenance payments in August and September when stating that he had complied with all orders of the Sion court. The context was the judge’s consideration of the allegations of physical, mental and psychological abuse, albeit that financial control was also mentioned. He had recorded, and so must be assumed to have taken into account, LL’s concerns about alleged financial control and HL’s applications to reduce the level of maintenance. We do not consider that his reference to ‘all orders’ rather than the more accurate ‘almost all orders’ is in the circumstances an error of any significance.”

The reclaiming motion was therefore refused. In light of the original date for T’s return having passed, a new date was given of 5 January 2026 as date by which he had to be returned to Switzerland.