AD AGAINST SD [2023] ScotCS CSIH_17 (17 March 2023)

AD AGAINST SD [2023] ScotCS CSIH_17 (17 March 2023)

SD established a grave risk defence under Article 13(b) due to AD's persistent abusive behaviour, breaches of court orders, and lack of confidence in his compliance with protective measures. The proposed protective measures were insufficient to ameliorate the grave risk of physical and psychological harm to SD and the children. Return was refused as it would place the children in an intolerable situation.

Citation
[2023] ScotCS CSIH_17
Parties
Petitioner and Respondent: AD; Respondent and Reclaimer: SD
Jurisdiction
Scotland
Judgment Date
17 March 2023
Procedural Posture
Child Abduction Petition Under Hague Convention / Appeal (reclaiming Motion) From Lord Ordinary's Decision
Outcome
order for return of children to Illinois, USA refused
Legal Topics
Grave Risk Defence, Protective Measures, Domestic Abuse, Article 13(b) Hague Convention, Child Custody
Family Law International Child Abduction Grave Risk Defence Protective Measures Domestic Abuse Article 13(b) Hague Convention Child Custody

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Parties

AD

Petitioner and Respondent

SD

Respondent and Reclaimer

Procedural Posture

Child Abduction Petition Under Hague Convention / Appeal (reclaiming Motion) From Lord Ordinary's Decision

Legal Issues

  1. 1 Whether return of children to Illinois, USA would expose them to grave risk under Article 13(b) of the Hague Convention
  2. 2 Effectiveness of proposed protective measures to ameliorate risk
  3. 3 Procedural fairness of Lord Ordinary's approach

Ratio Decidendi

SD established a grave risk defence under Article 13(b) due to AD's persistent abusive behaviour, breaches of court orders, and lack of confidence in his compliance with protective measures. The proposed protective measures were insufficient to ameliorate the grave risk of physical and psychological harm to SD and the children. Return was refused as it would place the children in an intolerable situation.

Court Disposition

order for return of children to Illinois, USA refused

Orders

  • return of children to Illinois, USA refused
  • grave risk defence under Article 13(b) established