Introduction
International child abduction presents a difficult conflict between the rights of parents, the interests of children and the need for courts in different countries to cooperate. This issue is currently before the UK Supreme Court in 'In the Petition of DM No 1 and No 2', with judgment scheduled for 9 September 2026. The central question is whether a child's views can be considered when deciding whether the “grave risk” defence under Article 13(b) of the 1980 Hague Convention applies.
Facts
The Hague Convention on the Civil Aspects of International Child Abduction aims to secure the prompt return of children who have been wrongfully removed or retained in another country. The underlying principle is that disputes about custody should generally be determined by the courts of the child's habitual residence, rather than allowing one parent to obtain an advantage by moving the child to another jurisdiction. Article 13(b), however, provides an exception where returning the child would expose them to a “grave risk” of physical or psychological harm or otherwise place them in an intolerable situation.
The case concerns a family who had lived in Florida. In 2025, the mother travelled to Scotland with the children and decided not to return to Florida. The father subsequently sought their return under the Hague Convention. One of the children, who was then 14, expressed a wish to return to Florida. The Outer House of the Court of Session took the child's views into account and ordered that child to return. However, the Inner House subsequently held that the child's views should not have been considered when assessing the Article 13(b) defence. The issue is now before the Supreme Court.
Analysis
There is a strong argument that children should have a voice in decisions that fundamentally affect their lives. Article 13(2) of the Hague Convention expressly recognises that a court may refuse to return a child where the child objects and has reached an age and degree of maturity at which it is appropriate to take account of their views. The Hague Conference has also recognised the importance of considering children's participation in Convention proceedings.
However, giving children's views greater influence could create difficulties. Children may be influenced by one parent, particularly where there is an ongoing dispute between parents. It could also undermine the Convention's objective of securing prompt returns if disputes increasingly become centred on the child's wishes rather than the circumstances of the alleged wrongful removal.
Conclusion
The Supreme Court's decision therefore has potentially significant implications for international family law. It must balance the Convention's emphasis on international cooperation and prompt return against the principle that children should be treated as individuals whose experiences and views may be relevant to decisions affecting them. The judgment will clarify whether, and to what extent, a child's voice can influence the Article 13(b) defence.
Ultimately, the issue is not simply whether children should have a say, but how much legal weight their views should carry. A careful balance is needed between protecting children from harm, respecting their developing autonomy and maintaining the effectiveness of international child-abduction law.