Inner House allows appeal of order to return children to USA on basis of grave risk defence

About this case:

• Citation:
  [2023] CSIH 17
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Wise

Reclaimer SD was the original respondent in an action raised under the Hague Convention on Child Abduction by AD, who sought the return of his children to his home state of Illinois. She argued that the Lord Ordinary had failed to fully appreciate the risk to the children posed by her partner’s abusive behaviour towards her and the impact it had on their safety.

The appeal was heard by Lord Malcolm, Lady Wise, and Lord Tyre. Malcolm KC appeared for the petitioner and Scott KC for the respondent and reclaimer.

Intolerable situation

The parties married in 2014 and had two children, aged seven and four respectively. The petitioner, AD, was a US citizen habitually resident in Illinois, while SD lived in Scotland until she moved to the US to marry AD. The parties had agreed in writing that SD could take the girls to Scotland for a holiday from 8 June 2022 until 14 August 2022. Return flights were booked, but ultimately SD did not return to the US with the children.

Having learned that the children would not be returning, AD raised divorce proceedings in Lake County, IL, seeking the majority of parenting time to be allocated to him. It was agreed that there had been a wrongful retention under the Convention, and a court order was made for the children’s return. In the present petition, SD sought to establish that she had been subject to physical, psychological, and sexual abuse from her husband, including attempted strangulation and a threat involving a firearm.

It was found by the Lord Ordinary that the reclaimer’s evidence, which mainly consisted of text messages sent to her by AD, demonstrated an intent to humiliate, degrade, and frighten her. However, it was not established that, if these messages continued beyond SD’s return to the US, the children would be exposed to a grave risk. Sufficient remedies were available in the US to allow the court to assume the children would be protected there.

Counsel for the reclaimer submitted that there was a strong prima facie risk of abuse to SD, some of which had taken place in front of the children. Leaving aside any direct risk to the children, it is well settled that domestic abuse of a mother who is the primary carer can constitute a grave risk or intolerable situation for children, even if not directly experienced or witnessed by them. Further, the Lord Ordinary’s approach to the case had been inconsistent with domestic and international jurisprudence.

Absent necessary assessment

Delivering the opinion of the court, Lady Wise began by noting: “Having described SD’s allegations as amounting to a strong prima facie case, what is absent from the Lord Ordinary’s analysis is the necessary assessment of the severity of that risk. SD’s allegations required to be viewed against a backdrop of the objective assessment of her distress and the undisputed material in the voluminous text messages. All of that material required to be fed into the risk assessment at stage one of the exercise.”

She continued: “Had a conclusion on the severity of the risk been reached, that would have informed the assessment of the effectiveness of the proposed protective measures at the second stage. The issue in this case was whether and to what extent AD could be deterred from treatment of SD that would expose the children to harm or place them in an intolerable situation. Absent a clear assessment of the nature and gravity of the risk, the proposed protective measures were being assessed at face value, rather than being tested against a particular risk at a particular level.”

Noting that SD would not benefit from legal representation in the US courts, Lady Wise said: “The combination of the disadvantages SD would face without legal representation and AD’s continued behaviour between September 2022 and January 2023 in the face of court orders ought to have been considered in the context of the potentially devastating consequences for SD, and in turn the children, should the measures prove ineffective. In failing to conduct the risk assessment in that way, the Lord Ordinary erred. The matter is accordingly open for this court to consider of new.”

She concluded: “Having regard to the extensive material available, we are satisfied that SD has established a grave risk defence under Article 13(b) of the 1980 Hague Convention. Despite being so satisfied, we have a discretion to decide to return the children. However, it would be inconceivable that a return would be ordered given the material before us and we shall refuse so to order.”

The reclaiming motion was therefore allowed, with the children permitted to remain in Scotland with their mother.