When a court asks whether returning a wrongfully retained child would be intolerable, can it listen to what the child himself says? On 9 September 2026 the Supreme Court said yes — then refused to order his return. In In the Petition of DM [2026] UKSC 32, an appeal from the Inner House of the Court of Session, the Court dismissed the appeal brought by the father and the child, affirming the order below.
What the case was about
In July 2025 a family living in Florida came to the UK for a three-week holiday with H, then 14, and his eight-year-old brother B. In Scotland the mother said she intended to stay, and the father petitioned for their return under article 12 of the Hague Convention (para 16). She did not dispute that the retention was wrongful, relying on article 13(b) (para 19).
The Lord Ordinary, Lord Braid, found a real risk the mother would take her own life, and that if it happened both boys would suffer extreme psychological harm (para 122). He held the defence established for B, and there was no appeal to the Supreme Court on that (para 7). For H he factored in the boy’s strong wish to return to Florida and held the defence not established (para 2). An Extra Division of the Inner House held that taking H’s views into account was an error of law, and refused to order his return (para 3).
What the Supreme Court decided
Lord Stephens and Lord Snowden gave the judgment, with which Lord Reed, Lady Simler and Lord Doherty agreed. The unanimous decision had been announced on 8 July 2026, with reasons to follow (para 14). A child’s views can be taken into account in assessing whether there is a grave risk that return would harm the child or place them in an intolerable situation (para 108). H had been heard and was represented; the Inner House erred in excluding what he said (para 109).
But hearing is not heeding. Giving a child the opportunity to be heard is not the same as giving effect to the child’s views, which may be accorded little or no weight (para 93). A child should not be heard where that is not in their best interests, though latitude should favour hearing them: “The voice of the child should not be stifled by an overly paternalistic approach” (para 94).
To the extent manipulation has made a child’s views inauthentic, very little or no weight attaches to them, and a court should decide on a summary basis how far they are the child’s own (para 117) — though the Lord Ordinary was entitled not to resolve that dispute (paras 119, 120). The father’s discretion ground also failed: the Lord Ordinary applied a concept of relative intolerability and turned Lady Hale’s approach in In re D on its head, so the Inner House could set his discretion aside (paras 113, 115).
On his own findings, the Lord Ordinary should have held the defence made out: this was “a paradigm case of a low risk of really serious psychological harm qualifying as grave” (para 122). H’s views could not bear the weight placed on them: their authenticity was unresolved, and he had never been asked — it would have been wholly inappropriate to ask — how he would react if his mother did take her own life (para 124). The Court determined the application itself rather than remitting: the Hague jurisdiction is summary, not “wait and see”, and the Convention ceases to apply to H at 16, under a year away (para 128). The appeal was dismissed and the Inner House’s order affirmed (para 131).
Why it matters
- The child is heard across article 13(b). There is in effect a presumption the child is given the opportunity to be heard, and it is not confined to one limb of the defence (paras 94, 95).
- Listening is not agreeing. Weight is a separate question, and here the views did not engage the decisive risk (paras 93, 124).
- A low risk of really serious harm can still be “grave”. The more serious the character of the risk, the lower the level of risk that may still be grave (paras 77, 122).
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Read the full judgment: In the Petition of DM [2026] UKSC 32 (The National Archives).