Supreme Court gives guidance on relevance of child views in abduction cases, refuses father’s bid for child return order

About this case:

• Citation:
  [2026] UKSC 32
• Judgment:
  External link
• Court:
  UK Supreme Court
• Judge:
  Lord Stephens and Lord Snowden

Seeking the return to his custody of children wrongfully retained in Scotland by their mother, a father brought proceedings under the 1980 Hague Convention on the Civil Aspects of Child Abduction. A legal issue concerning the application of the convention to one child’s case came before the UK Supreme Court.

The appeal was heard by Lord Reed, Lady Simler, Lord Snowden, Lord Stephens and Lord Doherty, with Janys Scott KC and Alex Critchley appearing for the first appellant (the father), Rachel Shewan KC and Morag McEwan for the second appellant (the child) and Marie Clark KC, Julian Aitken and Molly Little for the respondent (the mother).

Grave risk of an intolerable situation for child

In July 2025, the parties travelled to Scotland for a holiday with their children, H (aged 14) and B (aged 8). During the holiday, the mother told the father that she did not intend to return to their home in Florida; she would instead remain in Scotland, obtaining an interim interdict preventing the father from removing their children from her control. Evidence heard by the lord ordinary suggested growing chaos in the family’s home life prior to the holiday; the father’s seemingly profligate attitude to his finances had resulted in numerous repossessions, as well as the loss of the children’s school places and health insurance. The mother further alleged domestic abuse.

The father raised proceedings seeking the children’s return under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. In response, the mother relied on article 13(b) of the convention, which enables state authorities to refuse to return a child in cases where there is a “grave risk” of “physical or psychological harm” or of an otherwise “intolerable situation”, to oppose the father’s application. The convention is given force in the United Kingdom by virtue of the Child Abduction and Custody Act 1985.

Prior to the first hearing, the mother attempted suicide by overdose and received treatment in hospital. Although she denied having further suicidal thoughts, psychologists predicted that the children’s return to the USA would “have an immediate negative impact on her mental health” – and that, in the event of her suicide, “unavoidable” and “traumatic” consequences on the children would ensue. Nevertheless, H maintained a strong wish to return to the USA: although he would “feel sad” if his return precipitated a decline in his mother’s mental health, he would not feel responsible if she again attempted suicide since he had not “asked her to stay in Scotland or to do that”.

At first instance, the lord ordinary took H’s views into account in allowing the father’s application in respect of H, despite being unable to reach a conclusion on the extent to which H’s views had been manipulated by his father. Overturning that decision, however, the Inner House rejected such considerations as altogether irrelevant: the child’s own views on whether he would be placed in an intolerable situation could not, according to the Extra Division, be taken into account. At both instances, the father’s application in relation to B was refused, against which decisions no appeal was maintained. The matter in relation to H proceeded to come before the UK Supreme Court; an ex tempore decision given days after the July hearing was followed by a written judgment issued in September 2026.

Child’s views relevant but not determinative

In an opinion with which their colleagues agreed, Lord Stephens and Lord Snowden began by examining the relevance in principle of the child’s views: “The issue was considered by [the] House of Lords in In re D (2006) … We make several observations … First, there is no obligation on the child to express his or her views. Rather, in effect there is a presumption that the child will be given an opportunity to be heard. Secondly, there would be no point hearing from a child if the court were then to hold as a matter of law (as the Inner House did) that the child’s views should be left out of account. Thirdly, and in a similar vein, giving a child an opportunity to be heard is not to be confused with giving effect to the child’s views. Although the child’s views ought to be taken into account by the court, it may determine that they are of limited relevance or should be accorded little or no weight.”

Concluding that in Hague Convention cases the views of the child are relevant, they expanded: “The child should not be given the opportunity if it is inappropriate to do so having regard to the child’s age or degree of maturity … In our view it is inappropriate to hear from the child either generally or on a specific matter if doing so is not in the child’s best interests. Whether it is appropriate or inappropriate for the child to express a view on an issue is a matter for the judge to decide: though we would suggest that latitude should be exercised in favour of hearing from the child … We consider that the Inner House fell into error in holding that the Lord Ordinary erred in law in taking the views of H into account when deciding whether the situation to which he would be returning, if his return to the USA were to be ordered, would be intolerable for him. Rather, H’s views ought to have been taken into account. Of course, H’s views are not determinative, and it is for the court to determine what, if any, weight to attach to them.”

After resolving two secondary issues, Lord Stephens and Lord Snowden concluded by examining whether the lord ordinary had erred his analysis of the risk of harm to H: “The Lord Ordinary’s findings on the evidence were that … there was a real risk of [the mother] committing suicide [and] if that risk eventuated it would be traumatic for both children and would cause them extreme psychological harm … In our view it cannot be contended that such a risk to a child does not warrant the description of ‘grave’. The only reasonable conclusion to draw from the Lord Ordinary’s findings on the evidence was that there was a grave risk that H’s return to the USA would expose him to psychological harm which he could not reasonably be expected to tolerate. Such a conclusion alone suffices to establish the article 13(b) defence.”

They added: “[T]he Lord Ordinary was correct to take H’s views into account in his article 13(b) determination. However, the evidence of those views did not bear the weight that the Lord Ordinary placed upon it for two reasons. First, the weight to be attached to H’s views depended on the extent to which they were authentically his own views, as to which the Lord Ordinary had come to no conclusion. Secondly, the evidence did not address the critical risk that had been identified. That is because in the central passage of his affidavit … H did not even contemplate, still less address, his likely reaction to [his mother] actually committing suicide … [His] stated views did not negate or mitigate the real risk of extreme psychological harm that had been identified which he could not reasonably be expected to tolerate.”

The father’s appeal was accordingly dismissed.