In the Petition of DM

When determining an article 13(b) defence under the Hague Convention on the Civil Aspects of International Child Abduction 1980, a court may consider the child’s views on physical harm, psychological harm and intolerability. The court must decide objectively what the particular child should reasonably be expected to tolerate. The child’s views are relevant but never determinative, and their weight depends on maturity, authenticity and whether they address the identified risk.

A real risk of parental suicide requires careful scrutiny. Given the likely severity of the resulting psychological harm, even a small risk may be grave. Once the defence is established, a discretion to return remains, but the binary grave-risk finding cannot be diluted as merely borderline.

The father petitioned under article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 for the return of his adolescent son, H, from Scotland to the United States. The mother opposed return under article 13(b), relying principally on her mental health, a real risk of suicide and the consequent psychological harm to H.

The Lord Ordinary, in In the Petition of DM [2025] CSOH 109, took account of H’s strong wish to return and ordered his return. The Inner House, [2026] CSIH 9; 2026 SLT 213, held that H’s views were legally irrelevant to whether his situation would be intolerable. It found the article 13(b) defence established and refused a return order.

The principal questions were whether H’s views could inform the grave-risk assessment; how authenticity and possible parental manipulation affected their weight; whether the Lord Ordinary’s findings compelled the conclusion that the defence was established; and whether H should nevertheless be returned in the exercise of discretion.

Lord Stephens and Lord Snowden delivered the unanimous judgment, with which Lord Reed, Lady Simler and Lord Doherty agreed.

1. Appeal dismissed. The Inner House erred by excluding H’s views, but its order refusing his return was affirmed for different reasons. On the Lord Ordinary’s findings, the article 13(b) defence was clearly established.

2. A child’s views may be considered throughout the article 13(b) assessment, including in relation to physical harm, psychological harm and intolerability. There is no principled distinction between those parts of the provision. The child should generally have an opportunity to be heard unless that would be inappropriate having regard to age, maturity or best interests. Hearing the child does not mean giving effect to the child’s wishes. The court decides objectively what this particular child, in these particular circumstances, should reasonably be expected to tolerate: In re D [2006] UKHL 51 and In re E [2011] UKSC 27 applied.

3. The weight given to the child’s views depends on their maturity, authenticity and relevance to the identified risk. If manipulation has deprived the views of authenticity, little or no weight should be attached to that extent. Although the Lord Ordinary was entitled not to resolve the disputed allegation of manipulation, that uncertainty reduced the weight which H’s views could bear. More fundamentally, H’s evidence did not address how he would be affected if his mother actually committed suicide.

4. The staged approach for disputed allegations generally asks whether the allegations, if true, disclose grave risk and, if so, whether effective protective measures are available. It must not be transposed mechanically to an assertion that a parent will not return or may commit suicide. Those assertions require a reasoned assessment and particularly careful scrutiny. If a real risk of parental suicide is established, the likely extreme psychological harm to the child means that even a small risk may qualify as grave.

5. The Lord Ordinary found that the mother’s refusal to return was genuine, that there was a real risk of suicide, and that suicide would cause both children extreme psychological harm. Those findings permitted only one reasonable conclusion: returning H would expose him to grave psychological harm which he could not reasonably be expected to tolerate. The additional risks arising from worry about his mother, uncertain schooling, accommodation, medical care and a peripatetic lifestyle reinforced that conclusion.

6. A court retains discretion to order return after article 13(b) is established. The grave-risk decision is nevertheless binary and cannot be discounted as borderline. H’s views were relevant to discretion, but returning him into an established risk of extreme and intolerable psychological harm would have required the most anxious justification. None existed. The Court therefore determined the application itself and affirmed the refusal of a return order.

1. United Kingdom Supreme Court: The Court unanimously dismissed the appeal in In the Petition of DM [2026] UKSC 32 . It held that the Inner House had wrongly excluded H’s views but affirmed its refusal of a return order for different reasons.
2. Inner House of the Court of Session: An Extra Division allowed the mother’s reclaiming motion in [2026] CSIH 9; 2026 SLT 213, recalled the Lord Ordinary’s interlocutor and refused to order H’s return. It held that H’s views should have been excluded from the intolerability assessment and that the article 13(b) defence was established.
3. Outer House of the Court of Session: The Lord Ordinary in [2025] CSOH 109 took H’s views into account, held that the article 13(b) defence was not established in relation to him and ordered his return to the United States.