Petition of DM (Court of Session) [2026] CSIH 9 (10 February 2026)

Petition of DM (Court of Session) [2026] CSIH 9 (10 February 2026)

The Lord Ordinary erred in law by taking H's subjective views into account in assessing whether his return would place him in an intolerable situation under Article 13(b) of the 1980 Hague Convention. The correct approach is an objective assessment of intolerability. Once H's views are excluded, there is no proper basis to distinguish between H and B; the combination of factors, particularly the grave risk arising from SM's mental health and potential suicide, applies equally to both children. Therefore, there is a grave risk that return would place both children in an intolerable situation, and the petition for their return must be refused.

Citation
[2026] CSIH 9
Parties
Petitioner/first Reclaimer: DM; First Respondent/second Reclaimer: SM; Second Respondent: H
Jurisdiction
Scotland
Judgment Date
10 February 2026
Procedural Posture
Child Abduction Petition (reclaiming Motion/appeal) / Appeal (inner House, Court of Session)
Outcome
Appeal by DM refused; appeal by SM allowed; petition for return of both children refused.
Legal Topics
Child Abduction, Hague Convention 1980, Habitual Residence, Grave Risk Exception, Child's Views, Mental Health and Child Welfare
Family Law International Law Child Abduction Hague Convention 1980 Habitual Residence Grave Risk Exception Child's Views Mental Health and Child Welfare

Case Brief

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Parties

DM

Petitioner/first Reclaimer

SM

First Respondent/second Reclaimer

H

Second Respondent

Procedural Posture

Child Abduction Petition (reclaiming Motion/appeal) / Appeal (inner House, Court of Session)

Legal Issues

  1. 1 Whether the Lord Ordinary erred in refusing to order the return of B and in ordering the return of H to Florida under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention; Whether Article 13(b) grave risk exception was established for either or both children; Whether the views of the children, particularly H, were relevant to the grave risk assessment; Whether the Lord Ordinary erred in distinguishing between the two children in the application of Article 13(b)

Ratio Decidendi

The Lord Ordinary erred in law by taking H's subjective views into account in assessing whether his return would place him in an intolerable situation under Article 13(b) of the 1980 Hague Convention. The correct approach is an objective assessment of intolerability. Once H's views are excluded, there is no proper basis to distinguish between H and B; the combination of factors, particularly the grave risk arising from SM's mental health and potential suicide, applies equally to both children. Therefore, there is a grave risk that return would place both children in an intolerable situation, and the petition for their return must be refused.

Court Disposition

Appeal by DM refused; appeal by SM allowed; petition for return of both children refused.

Orders

  • Recall the interlocutor of the Lord Ordinary of 21 November 2025.
  • Sustain the first respondent's pleas-in-law in respect of both children.