Outer House refuses order for return of two children to father in US involved with religious drug cult

About this case:

• Citation:
  [2025] CSOH 67
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Tait

Petitioner DBH sought the return of his children OFH and LCH, born in 2016 and 2018 respectively, on the basis that they had been unlawfully removed. The respondent accepted that she had wrongfully removed the children from the US, but advanced the defences of objection, settlement, and grave risk of harm.

The petition was heard by Lady Tait in the Outer House of the Court of Session, with Laing, advocate, appearing for the petitioner and McAlpine KC for the respondent.

Use of Ayahuasca

The parties married in 2016 and divorced in 2023 in the US. They met through a religious movement named Santo Daime, which the respondent termed as a religious drug cult involving the use of Ayahuasca and in which the petitioner’s mother had a senior role. The petitioner extricated herself from the cult in August 2020 and underwent therapy to recover. The children were habitually resident in the US immediately prior to being removed and brought to Scotland by the respondent.

In her affidavit, the respondent said she had been the children’s primary carer since their birth. She described the children as happily settled in Scotland, where they had expected to come as plans had been made for that to happen after the parties separated. The petitioner suffered from poor mental health exacerbated by illicit drug use and had often put the respondent into a state of fear or alarm.

Other witnesses for the respondent included teachers, family friends, and others who spoke to the settled state of the children and their desire to live in Scotland, which LCH’s teacher NW said was “absolutely settled”. On 16 October 2024, the petitioner applied to the Supreme Court for the State of New York for an order granting him custody of the children. The court granted the order in January 2025 in the absence of the respondent and without proper service upon her, as well as a warrant for her arrest.

A Child Welfare Reporter appointed by the court concluded that both children were able to provide reasons for why they wished to remain in Scotland, including friends, school, and social activities. Their views coincided with what the respondent had said about the children not generally speaking about the petitioner and appeared to be authentically their own.

It was submitted for the petitioner that the young ages of the children indicated they may not fully understand the implications of the case or give fully informed views. Further, there was material before the court which suggested that the respondent may have negatively influenced them and sought to thwart their relationship with the petitioner.

Disrupt settled lives

In her decision, Lady Tait said of the objection and settlement defences: “Ultimately, the court appointed Reporter reports that each child objects to being returned; each has attained an age and stage of maturity at which it is appropriate to take account of their views and those views appear to be authentically their own. That report is recent and is an assessment in light of the children’s current circumstances. This is not a case where the manner in which the objections are expressed or their nature are such as to render them of little weight in the overall balancing exercise.”

She explained further: “There are a number of affidavits from the respondent’s mother and friends which speak to the children and respondent embracing and being embraced into the local community and having become integrated. That no doubt stemmed from school friendships but it has grown to engaging with families and activities in the wider community. The children are known, welcomed and supported in the community. There is also independent material available in the form of the affidavits from the children’s class teachers.”

Considering the risk of returning the children to the US, Lady Tait said: “On the evidence before the court, I am satisfied that if the respondent returned with the children to the US, there is a grave risk that she would be arrested and imprisoned and the children would be removed from her care and placed into the care of the petitioner. That would be against a background of minimal contact between the children and the petitioner since 2020 and none since September 2023.”

She added: “To be removed from the respondent’s care, even for a short period, and in the context of having been removed from their settled lives in Scotland, would put the children into a situation which they should not be expected to tolerate.”

Lady Tait concluded: “The children clearly object to being returned to the US and being uprooted from their lives here. Further, in the event of their return the children would be removed, at least in the short-term, from the respondent’s care. A return to the US pending a long-term decision on their future would disrupt their settled lives for no obvious benefit.”

The court therefore refused to make the order sought by the petitioner.