Danish Supreme Court Decides on the Grave-Risk Exception in a Child Abduction Case

The author of this post is Johan Tufte-Kristensen who is an Associate Professor of Private and Procedural Law at the University of Copenhagen.

In a decision of 8 May 2026, the Danish Supreme Court considered whether a child who had been wrongfully retained by his mother in Denmark should have been returned to the United States. The central issue was the scope of the grave-risk exception in Article 13(1)(b) of the 1980 Hague Child Abduction Convention.

The Supreme Court held that the mother had not proven that returning the child to the United States involved a grave risk of harm. The Supreme Court therefore upheld the high court’s decision ordering the return of the child.

The legal framework

The general aim with the Hague Child Abduction Convention is to ensure the prompt return of children who have been wrongfully removed to or retained in another contracting state, so as to restore the situation that existed before the abduction and allow questions of custody to be decided in the state of the child’s habitual residence.

The Convention has been implemented in Denmark through the Danish Child Abduction Act. Under Section 10 of the Act, a child who has been wrongfully removed to or retained in Denmark must, upon request, be returned if the child was habitually resident in another contracting state immediately before the removal or retention.

Section 11(2) of the Act, which implements Article 13(1)(b) of the Convention, provides an important exception, as return of the child may be refused if there is a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The proceedings

The child was born in Denmark in June 2019. The parents married in the United States in November 2019, and the mother and the child moved to the United States in 2021. The family lived together there until June 2025.

In early June 2025, the family visited Denmark. On 9 June 2025, the mother took the child to a women’s shelter and prevented further contact between the child and the father. The father subsequently returned to the United States alone. On 16 June 2025, he requested the return of the child to the United States under the Hague Child Abduction Convention.

The family court refused to return the child to the United States. The court emphasized the child’s close attachment to its mother and found that separating them would involve a grave risk to the child’s psychological health.

The High Court of Eastern Denmark reversed that decision in October 2025, as it found that the mother had not proven that returning the child to the United States would involve a grave risk of harm. The decision was enforced shortly afterwards, and the father returned to the United States with the child.

Although the child had already been returned, the Supreme Court held that the mother continued to have the necessary locus standi to challenge the return decision, as the decision involved a significant interference with her right to family life under Article 8 of the European Convention on Human Rights (“ECHR”). Furthermore, a decision in her favor could potentially affect subsequent proceedings concerning the child in the United States.

The Supreme Court’s decision

The Supreme Court stated that the clear starting point under the Danish Child Abduction Act and the Hague Child Abduction Convention is that a wrongfully removed or retained child must be returned to the state of habitual residence. The Supreme Court added that this starting point is itself based on the best interests of the child.

The exceptions must therefore be interpreted narrowly. When applying the grave-risk exception, the central issue is the situation in which the child would be placed upon return. The assessment must be based on objective circumstances, and the parent opposing the return bears the burden of proving that the exception applies.

The mother argued that the father had subjected both her and the child to psychological violence. She relied, in particular, on several statements prepared by the women’s shelter where she and the child had stayed in Denmark. She also argued that separating the child from her would involve a grave risk of psychological harm.

The Supreme Court found that the statements from the women’s shelter did not prove that the father had subjected the mother or the child to psychological violence. The Supreme Court relied particularly on the fact that the statements were mainly based on the mother’s account and had been prepared after she wrongfully retained the child in Denmark. The two interviews with the child conducted by the Danish family courts did not prove the allegation of psychological violence either.

The Supreme Court also found that the mother had not proven that the separation resulting from the child’s return would involve a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation. The conditions for refusing return were therefore not fulfilled.

Article 8 of the European Convention on Human Rights

The Supreme Court also referred to Article 8 of the ECHR and the European Court of Human Rights’ judgment in Case 27853/09 (X v Latvia) that require national courts to assess a substantiated objection concerning grave risk and provide specific reasons for their decision. However, the Supreme Court also stated that Article 8 does not require the courts in the requested state to conduct an extensive examination of the entire family situation. Return proceedings concern whether the child must be returned to the state of habitual residence and not which parent should ultimately have custody of the child.

Conclusion

The decision confirms the narrow scope of the grave-risk exception under the Hague Child Abduction Convention. A parent who opposes the return of the child must prove, on the basis of objective circumstances, that returning the child involves a grave risk of harm. The decision confirms that the grave-risk assessment is forward looking, as it depends on whether objective circumstances show that returning the child would expose the child to a grave risk of harm.