Amy Rowe and Annabel Gorton of Hunters' Family Department were instructed by The International Centre for Family Law, Policy and Practice (ICFLPP), and instructed Charles Hale KC, Charlotte Baker, and Olivia Gaunt of 4PB, to intervene in the Supreme Court case In the Petition of DM No 1 and No 2 [2026] UKSC 32] on a pro bono basis.
The case concerned an application by a father, DM, under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, seeking the return of his two sons, H (aged 14) and B (aged 8), from Scotland to Florida, USA. Both children had been habitually resident in Florida before their mother, SM, retained them in Scotland during a family holiday in July 2025. It was undisputed that the retention was wrongful under Article 3 of the Hague Convention. The central issue was whether SM's Article 13(b) defence applied, namely that returning the children would expose them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation.
The litigation focused primarily on H. The Outer House found that the Article 13(b) defence was established for B, but not for H. In relation to H, the Outer House considered the child's strong wish to return to Florida and concluded that H's views could be taken into account when assessing whether the circumstances would be intolerable for him. A return order was therefore made in H's case.
On appeal, the Inner House overturned that decision, holding that a child's subjective wishes could not be considered when determining whether an Article 13(b) threshold was met. Once H's views were excluded, the court concluded that the same grave risks identified for B also applied to H, particularly the risk arising from SM's fragile mental health and the possibility of suicide. It therefore refused a return order.
DM and H then appealed to the Supreme Court and, among other points of appeal, sought a determination on whether H's views should be taken into account with regard to the Article 13 (b) defence.
The ICFLPP made submissions that children are rights-holders whose views, identity, maturity and lived experience must inform decisions about them, including grave risk under Article 13(b). Drawing on the UNCRC, Gillick v West Norfolk and Wisbech Area Health Authority, and European jurisprudence, the ICFLPP submitted that courts should routinely consider hearing children. Professor Marilyn Freeman's research and scholarship have consistently explored the negative impact on children of decisions made unilaterally by their parents, together with the rights of children to participate in processes that concern them, and to be viewed as holders of rights rather than merely objects of protection. It is that research which underpins the submissions and the approach that the ICFLPP invited the Supreme Court to take in the present case. The Supreme Court recorded in the judgment that it had been assisted by the written cases of the intervenors.
The Supreme Court unanimously held that the Inner House had erred in law. It reaffirmed that children should generally be given an opportunity to be heard in 1980 Hague Convention proceedings and that their views may be taken into account when assessing whether return would expose them to psychological harm or an intolerable situation. However, the Supreme Court stressed that hearing a child is not the same as giving effect to their wishes; the weight to be attached to those views remains a matter for the court.
Despite resolving the legal issue in H's favour, the Supreme Court nevertheless dismissed the appeal. On the factual findings made by the Outer House, there was a real risk that SM might commit suicide if the children returned without her, which would cause extreme psychological harm. H's wishes did not address or mitigate that central risk. Accordingly, the Article 13(b) defence was established and the appeal was dismissed with H permitted to remain in Scotland.
Professor Marilyn Freeman's most recent published research is found in a book co-edited by Professor Taylor entitled, Children's Right to Identity, Selfhood and International Family Law (hereafter "Children's Rights").