Outer House orders return of children to Ireland after rejecting ‘grave risk’ defence

About this case:

• Citation:
  [2026] CSOH 99
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Haldane

Lady Haldane held that the defence under Article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction had not been made out. The court also concluded that, even if the relevant threshold had been reached, sufficient protective measures were available in Ireland.

ABC, the children’s father, sought an order under the Child Abduction and Custody Act 1985 for the return of A, aged 10, and B, aged 3, to Ireland. Aitken, instructed by Brodies LLP, appeared for the petitioner. Cadden, instructed by SKO Family Law Specialists, appeared for the respondent mother, DEF.

The parties married in Edinburgh in 2018 and subsequently moved to Ireland, where the children were habitually resident before their removal. Their relationship broke down in around September 2025, although they continued living in the same home. In June 2026 the mother travelled with the children to Scotland for a holiday with the father’s agreement. They were expected to return on 16 July but remained in Scotland.

The mother said she had travelled to Scotland, and subsequently decided not to return, because of domestic and sexual abuse by the father and on advice that she should move to a place of safety. The father denied the allegations. The mother ultimately conceded that the children’s retention in Scotland was wrongful. The issue for the court was therefore whether the Article 13(b) exception to the ordinary obligation to return them had been established.

Grave risk test

Article 13(b) permits a court to decline to return a child where there is a grave risk that return would expose the child to physical or psychological harm or otherwise place them in an intolerable situation. Lady Haldane applied the principles set out in In re E (Children) and, more recently, by the Supreme Court in Petition of DM.

The risk must reach a sufficient level of seriousness to be described as “grave”, and the assessment is prospective: the court must consider the circumstances the child would face on return rather than simply determining what happened in the past. Where domestic abuse allegations are made, the staged approach generally requires the court first to consider whether, if the allegations are true, they would create the requisite grave risk. If they would, the court must consider whether effective protective measures are available in the requesting state.

The mother relied on allegations of domestic abuse, the financial consequences of returning to Ireland and concerns about accommodation. She maintained that the children’s return would expose them to psychological harm and place them in an intolerable situation. The father contended that the Article 13(b) threshold had not been met and emphasised that a return order would not require the parties to resume living together.

Child felt ‘100% safe’

A child welfare reporter was appointed to obtain A’s views. Because B was only three, no equivalent exercise was carried out with him. The reporter, a senior counsel, considered A’s autism spectrum disorder when assessing his maturity and capacity to express views. She described him as a “polite, charming and engaging child” who was motivated to participate. A spoke positively about both parents. He said that he had seen them argue and thought his father sometimes behaved worse during those arguments, although both had shouted.

However, he was clear that he had never felt unsafe with either parent. He described his father as “100% kind to me” and expressed the same view about his mother. Although he identified positive aspects of living in Scotland, A said he had more family and friends in Ireland and would prefer to return there. The reporter found no indication that his views had been improperly influenced and considered his wish to return genuinely his own.

Lady Haldane regarded those views as significant. A was found to have sufficient maturity, was motivated to engage and had not appeared subject to undue influence.

Abuse allegations did not establish grave risk

The court emphasised that it was not determining the truth of the parties’ competing accounts of their relationship. Lady Haldane noted that the allegations of sexual abuse, while “self-evidently serious”, were not said to have occurred in the children’s presence or to have been known to them.

Some alleged domestic abuse concerned controlling behaviour relating to finances and housing, while A had witnessed verbal arguments between his parents. However, there was no evidence that witnessing those arguments had caused, or would cause, a significant psychological effect upon him.

The prospective nature of the Article 13(b) test was also important. The father proposed that, if the mother and children returned to Ireland, he would leave the former matrimonial home. Lady Haldane accepted that a parent’s serious deterioration in mental health following return could potentially create a grave risk for a child. However, unlike cases such as DM, there was no medical evidence establishing such a risk in this case.

There was also insufficient evidence that future contact or handovers would expose the children to the degree of risk required by Article 13(b). The judge concluded that there was no “clear and compelling evidence” enabling the court to find such a risk from the children’s perspective.

Older child’s views carried weight

Lady Haldane described the wider evidence as mixed. The parties and their respective friends and relatives presented conflicting accounts of the father’s behaviour, and the court was not tasked with resolving those factual disputes in the Hague Convention proceedings.

Against that background, A’s own views carried considerable weight. He felt “100% safe” with both parents, understood that they argued and nevertheless wished to return to Ireland. Lady Haldane said his views were “clear, cogent, and carry considerable weight in the exercise of balancing the competing evidence”.

Taking the evidence as a whole, she could not conclude that either child faced a grave risk of psychological harm or an intolerable situation on return. Concerns about finances and accommodation were also insufficient. The evidence did not establish that the basic needs of the mother and children could not be met in Ireland, and such disadvantages would not ordinarily satisfy the high Article 13(b) threshold.

Protective measures available

Lady Haldane added that, even if a grave risk had been established, she would have held that sufficient protective measures were available in Ireland. The father had produced a report from Irish senior counsel describing civil protective measures available through the Irish courts, many of which resembled those available in Scotland.

The mother argued that there was a risk the father would disregard any orders made. However, there was no evidence that he had previously breached relevant court orders or demonstrated a history of ignoring protective measures.

The Article 13(b) defence therefore failed.

Lady Haldane indicated that she would grant an order for the return of A and B to Ireland, with the case to be put out by order before the final order was pronounced so that practical arrangements for their return could be addressed. Questions of expenses were reserved.