A recent UK Supreme Court decision has clarified the role of a child’s views in international child-abduction proceedings. The court was asked to decide what weight should be given to a child’s wishes when assessing whether returning them to another country would expose them to a grave risk of harm or place them in an intolerable situation.
The Supreme Court announced its decision on 8 July 2026, with its full written reasons to follow. It confirmed that a child’s views are relevant to the court’s assessment, but they will not necessarily determine the outcome.
The Hague Convention
The 1980 Hague Convention on the Civil Aspects of International Child Abduction applies where a child has been wrongfully removed from, or retained outside, the country in which they are habitually resident.
The starting point is that the child should be returned promptly. The purpose of a return application is not to decide which parent the child should live with permanently. That question should usually be determined by the courts in the child’s home country.
There are limited grounds on which a court may refuse to order a child’s return. Article 13(b) applies where there is a grave risk that returning the child would expose them to physical or psychological harm or otherwise place them in an intolerable situation.
What happened in this case?
The case concerned two British parents who had been living in the United States with their sons, aged 15 and 8.
The family travelled to Scotland in July 2025. The mother then decided not to return to the US, and the father applied to the Scottish courts for the children’s return. It was accepted that the children had been wrongfully retained in Scotland.
The mother opposed the application, relying principally on her longstanding mental-health difficulties. Expert evidence indicated that a return order would cause an immediate and serious deterioration in her condition.
The older child had chosen to live with his father and consistently expressed a clear wish to return to the US. This raised the question of whether his views and likely response to the situation could be considered when deciding whether returning him would place him in an intolerable situation.
What did the Supreme Court decide?
The Supreme Court confirmed that the assessment under Article 13(b) is not entirely objective. The court must consider the circumstances of the particular child, including their views where appropriate.
However, this does not mean that the child decides the case. Their views form part of the evidence, but the court must weigh them alongside the nature and seriousness of the risks identified.
Despite the older child’s firm wish to return, the Supreme Court concluded that there was a grave risk that returning him would expose him to psychological harm and place him in a situation he should not reasonably be expected to tolerate. His return was therefore refused.
What does the decision mean for families?
The decision recognises that children are individuals whose views and experiences may be important when the court assesses risk. A child’s wishes cannot simply be disregarded. Equally, those wishes will not override compelling evidence that returning them would create a grave risk of harm.
How can we help?
International child-abduction cases are complex and are normally dealt with urgently. Our family-law team can advise you if a child has been brought to or retained in Scotland without consent, or if an application has been made for a child’s return to another country.
We can explain how the Hague Convention applies, advise on the grounds for seeking or opposing a return, and help ensure that the child’s circumstances and views are properly placed before the court. If you need advice, please contact our family-law team as soon as possible.
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