A mum who was abused by her American husband who found their legal dispute “sexually arousing” has won a battle to keep her US-born children in Scotland.
The mother, who has been identified by Scottish judges as SD, fled her home in Illinois because she feared for her and her children’s safety.
The Court of Session heard how the woman – whose present location hasn’t been disclosed – ignored US court orders to return the seven-year-old and four-year-old girl to the mid-western state.
In September 2022, an Illinois court found that she had abducted the girls.
Lawyers for SD, who holds UK, US and Irish passports, went to Scotland’s highest civil court in a bid to stop the children from being taken back to America.
They initially lost their legal battle as a judge in the Court of Session’s Outer House ruled against her.
This prompted SD’s legal team to go to the Inner House of the Court of Session. Appeal judges Lady Wise, Lord Malcolm and Lord Tyre heard evidence about how her husband, identified as AD, had sexually and physically abused his wife and had sent her scores of threatening texts.
The court heard how SD described a number of sexual assaults by AD including attempted rapes on her.
Consultant forensic psychologist, Professor Gary Macpherson, was shown 1,187 pages of text and picture messages sent to SD from AD.
He concluded that the messages established “common themes including belittling and emotional abuse, economic abuse and restriction of freedom of action”.
The texts also showed “suspicion paranoia, emotional disregulation” and “threats of violence including extreme sexual violence”.
It prompted the Inner House to rule that the woman had a defence under the 1980 Hague Convention on Child Abduction which would allow her to keep her children in Scotland.
In a judgement published on Friday, Lady Wise wrote that both SD and her children could be at risk if they returned to America.
She added: “Looking at the issue of grave risk of new, we consider that the combination of factors on which SD relied were sufficient to establish a grave risk that harm to her of the most severe kind (physical injury or worse) would occur in the event she and the children were returned to Illinois.
“That would place the children, who would be in her sole care, in an intolerable situation, as would repetition of the unrelenting harassment and intimidation already established.
“Once the threatening content of AD’s messages are considered in the context of the physical and sexual abuse allegations the level of risk is heightened.
“SD’s affidavit contains graphic accounts of brutal physical assaults inflicted on her in the presence of the children.
“These included hitting her on the face while she was sitting in the bathroom of the family home with the children and threatening and intimidating her physically and psychologically when she was trying to sleep on the floor of her daughter’s bedroom to maintain a distance from her husband.
“On December 11, 2022 AD sent a message to SD stating that she should be extradited back to the USA and have her passport and citizenship revoked and then she should be deported back to the UK.
“He has said that he finds the dispute with her sexually arousing, he has threatened to sue her family for their support of her in this dispute and he has threatened to cut off her financial support.
“These are just a few examples of the established text exchanges including topics covered by the more serious allegations.
“The order for return of the children to Illinois, USA has been refused.”
The judgment tells of how the couple were married in 2014 and had two children.
Their father is a US citizen.
SD told the court of how she was subjected to physical and sexual abuse from her husband. In June 2022, she came to Scotland with her children for a holiday and was due to return to the United States on August 14, 2022.
However, she did not return due to her fear that she and her children would be subjected to serious harm from her partner.
The court heard that lawyers for both SD and AD had agreed that the children were being wrongfully “retained” in Scotland under the Hague Convention on Child Abduction.
However, lawyers for SD argued that the Convention gave her a defence to keep her kids in the UK due to the fear that her children’s safety could be at risk.
The court also heard that AD had breached legal orders in the States which had been passed to stop his wife being harassed.
The court heard that Professor Macpherson met with SD and concluded that she suffers from “anxiety, stress, tension and excessive worry consistent with an adjustment disorder.”
The court also heard she has post traumatic symptoms which “appeared to be related to her being the victim of abuse by her husband.”
The court also heard that AD didn’t believe the messages sent to SD were abusive.
Lady Wise concluded that this meant the children’s safety could only be assured if they remained in Scotland.
She wrote: “So there is objective evidence of the high risk posed by AD coupled with a lack of insight on his part, demonstrated by his refusal to concede that the text messages constituted abuse.
“In all the circumstances and 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.
“In the particularly unusual circumstances of this case, we have concluded that to do so would give rise to an unacceptable risk.”