Background
A father sought the return of his two sons from Scotland to Florida under article 12 of the 1980 Hague Convention after their mother retained them in Scotland following a family holiday. The mother accepted that the retention was wrongful but relied on article 13(b), alleging a grave risk of psychological harm or an intolerable situation. Her case included the father’s financial instability, uncertain accommodation, schooling and health care, her refusal to return to the United States, and the risk that her mental health would deteriorate, including a risk of suicide.
The Lord Ordinary refused return of the younger child, B, but ordered the return of 14-year-old H. He took account of H’s strongly expressed wish to return to Florida and concluded that, unlike B, H would not face an intolerable situation. The Inner House reversed the order concerning H, holding that his views should not have been considered in assessing article 13(b), and refused his return. The father and H appealed.
The Court’s Holding
The Supreme Court dismissed the appeal and upheld the refusal to return H to the United States, though for different reasons from the Inner House. It held that a child’s views can be considered when assessing whether return would expose that child to physical or psychological harm or otherwise place the child in an intolerable situation under article 13(b). The Inner House therefore erred in treating H’s views as legally irrelevant.
However, on the Lord Ordinary’s factual findings, the article 13(b) defence was established. There was a real risk that the mother might commit suicide if the children returned without her, and that outcome would cause H extreme psychological harm. Given the seriousness of that harm, even a small risk could amount to a grave risk. H’s views did not address how he would cope if his mother died, and their weight was also limited because the Lord Ordinary had not resolved allegations that the father had influenced the children’s views. There was no basis to exercise the residual discretion to order H’s return despite the established grave risk.
Key Takeaways
- A child’s views may be taken into account in every aspect of an article 13(b) assessment, including physical and psychological harm.
- Listening to a child does not mean giving effect to the child’s wishes; the court decides what weight, if any, those views deserve.
- A real risk of a parent’s suicide, with consequent extreme psychological harm to the child, can establish the article 13(b) grave-risk defence even where the chance of suicide is small.
Why It Matters
The decision confirms that Hague Convention courts must not exclude a mature child’s views as a matter of law when assessing grave risk. But it also stresses that those views are not determinative and must be assessed for authenticity, relevance and evidential weight.
For practitioners, the case is a significant application of article 13(b) to parental mental-health risk. Where a genuine suicide risk is established and the likely consequence for a child would be extreme psychological harm, the court must treat the risk with the seriousness required by the Convention’s protective purpose.