T v S [2025] EWHC 3581 (Fam)

[2025] EWHC 3581 (Fam)
IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
Case No FD24P00617
Before
MRS JUSTICE HARRISRoyal Courts of JusticeStrand London WC2A 2LLTuesday, 15 April 2025
Between
TClaimantSApplicantTSApplicantRespondentMS CAMPBELL-BRUNTON (as instructed by Covent Garden Family Law) appeared for Applicant fatherMR CROSTHWAITE (as instructed by Osbornes Law) appeared for Respondent motherJUDGMENT(Approved)Digital Transcription by Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JEWeb: www.epiqglobal.com/en-gb/Email: civil@epiqglobal.co.uk (Official Shorthand Writers to the Court)This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.Date 2025-04-15
[1]MRS JUSTICE HARRIS: This is the matter of T v S. This judgment is given ex tempore following a two-day hearing before me on this, the last sitting day of the term, so the parents may have my decision and the reasons for it without any further delay. This is father's application for summary return of his child, who is now approaching ten months, the return application being to New Zealand. The child has been residing in this jurisdiction with the mother since the end of July of last year. The application for summary return is opposed by the mother. Father has been represented at this hearing by Ms Campbell Brunton. Mother is represented by Mr Crosthwaite.[2]Turning to the background to this application, father is a national of an Asian country but has permanent residence in New Zealand, where he has lived for many years. Mother is a UK citizen. Prior to returning to the United Kingdom last summer, she had resided in New Zealand since January of 2017. The parents met and commenced their relationship in New Zealand in 2018. They have never married but they have lived together as a couple for some five years. Difficulties developed in the relationship and there have been a number of periods of separation and reconciliation. Whilst pregnant, mother spent a period of time in England due to the parties separating. However, she returned to New Zealand on 22 April 2024 with a view to trying to work on the relationship with father. The child was subsequently born on [DOB]. The parents finally separated on the day he was due to be discharged from hospital, with father refusing to vacate the family home so that mother and the child could return there. Mother stayed with her friend for a few weeks on discharge from hospital before flying back to the UK with the child on 28 July of last year. Mother's position is that father had consented to that return of herself and the child to the United Kingdom, that consent having first been given in January of 2024 but maintained consistently thereafter. Father says he first discovered that mother had returned with the child to England on 10 August of last year. Father issued his application for summary return initially in New Zealand on 17 September of last year; this application being subsequently issued in this court on 11 December. He had no contact with mother and the child throughout this period and made no attempt during that time to establish any contact with his son. Mother alleges that she was the victim of serious domestic abuse, physical, psychological and financial, and coercive and controlling behaviours throughout her relationship with father. Mother also has a significant history of mental health difficulties including a suicide attempt whilst in New Zealand in 2019. She has had various diagnoses over the years including of emotionally unstable personality disorder, depression and complex PTSD.[3]In terms of the positions of the parties, father pursues his application today for summary return. Mother seeks to defend the father's application by relying on the following defences, firstly under Article 13(a) of the Hague Convention, that the father consented to mother taking the child to England; secondly under Article 13(b), that the child would be at a grave risk of harm if returned to New Zealand or would otherwise be placed in an intolerable situation due to the following factors: firstly, a serious decline in the mother's mental health, compromising her ability to care for the child; secondly, exposure of the mother to domestic abuse from the father including coercive and controlling behaviour; that the mother has nowhere to live, no job and no support upon a return to New Zealand; and it is currently unclear what financial or other support would be available to her from the New Zealand authorities and whether mother's visa status would be affected by having left for a period of time.[4]Those being the positions of the parties, I turn to the law. It is pertinent of course to remind myself of the core principles which underpin Hague Convention applications. It is a cardinal principle of the Convention to secure the prompt return of children wrongfully removed or retained to their country of habitual residence, in recognition of the prima facie position that the courts of habitual residence are best placed to make substantive decisions regarding the child's welfare. The court should not forget that the issue is where the substantive welfare arguments should be heard. This court is not concerned with the substantive long term welfare decisions for the child. That was made clear by Mostyn J in B v B [2014] EWHC 1804 (Fam).[5]Turning to the questions to be addressed in application of the Hague Convention, the first question is: what is the habitual residence of the child? It is not disputed by mother; both parents accept that the child was habitually resident in New Zealand immediately prior to mother travelling with the child to England at the end of July in 2024. The second question is whether or not the child has been wrongfully removed from the state of habitual residence pursuant to Article 3. I remind myself that the removal or retention of a child is wrongful where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone under the law of habitual residence, be it the time of removal or retention, and those rights were actually exercised or would have been, but for the wrongful removal or retention. Again, it is accepted by the parties that, absent the issue of consent, the removal or retention was in breach of father's rights of custody in accordance with domestic law in New Zealand and thereby would constitute a wrongful removal. The Convention provides that if a child was wrongfully removed or retained from their state of habitual residence and that a period of less than one year has passed since the date of wrongful removal, then the court must order return forthwith; that is, unless one of the defences can be established. As I have noted, mother relies on Article 13(a) and Article 13(b) as defences to any wrongful removal.[6]Turning then to Article 13(a) and the issue of consent, the leading authority on the issue of consent is now that of Peter Jackson LJ in Re G [2021] EWCA Civ 139. In Re G, Peter Jackson LJ repeated the guidelines as had been set out by Ward LJ in Re P-J [2009] EWCA Civ 588. Turning to those guidelines, firstly it is set out that the removing parent must prove consent to the civil standard. The enquiry is fact-specific and the ultimate question for the court is whether the remaining parent had clearly and unequivocally consented to the removal. Secondly, the presence or absence of consent must be viewed in the context of the common-sense realities of family life and family breakdown and not in the context of the law of contract. The court will focus on the reality of the family situation and consider all the circumstances in making its assessment. The primary focus is likely to be on the words and actions of the remaining parent. The words and actions of the removing parent may also be a significant indicator of whether that parent genuinely believed that consent had been given and consequently an indicator of whether consent had in fact been given. Thirdly, consent must be clear and unequivocal, but it does not have to be given in writing or in any particular terms. It may be manifested by words and/or inferred from conduct. Fourthly, a person may consent but with the gravest reservations. That does not render the consent invalid if the evidence is otherwise sufficient to establish it. Fifthly, consent must be real in the sense that it relates to a removal in circumstances that are broadly within the contemplation of both parties. Sixth, consent that would not have been given but for some material deception or misrepresentation on the part of the removing parent will not be valid. Seventh, consent must be given before removal. Advance consent may be given to removal at some future-but-unspecified time or upon the happening of an event that can be objectively verified by both parties. To be valid, such consent must still be operative at the time of the removal. Eighth, consent can be withdrawn at any time before the actual removal. The question will be whether, in light of the words and/or conduct of the remaining parent, the previous consent remained operative or not. Ninth, the giving or withdrawing of consent by a remaining parent must have been made known by words and/or conduct to the removing parent. A consent or withdrawal of consent of which a removing parent is unaware cannot be effective.[7]Turning then to the law on Article 13(b) and whether or not that threshold under Article 13(b) is crossed, the lead authority is that of Re E [2011] UKSC 27, in which Lady Hale and Lord Wilson deliver the majority judgment. In terms of the Article 13(b) defence, it is held that there is no need for that article to be narrowly construed. By its very terms, it is of restrictive application. The words of Article 13 are plain and need no further elaboration or gloss. Second, the risk to the child must be grave. It is not enough, as it is in other contexts such as asylum, that the risk be real. It must have reached such a level of seriousness as to be characterised as grave. Although grave characterises the risk rather than the harm, there is in ordinary language a link between the two. First, a relatively low risk of death or really serious injury might properly be qualified as grave, whilst a higher level of risk might be required for other, less serious forms of harm. Third, the words "physical or psychological harm" are not qualified. However, they do gain colour from the alternative, "or otherwise placed in an intolerable situation". Again, as was said in the authority of Re D, "intolerable" is a strong word but when applied to a child, must be in a situation which this particular child in these particular circumstances should not be expected to tolerate. Those words were carefully considered and can be applied just as sensibly to "physical or psychological harm" as to any other situation. They continue:
"Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also we now understand can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. Fourth, Article 13(b) is looking to the future. The situation as it would be if the child were to be returned forthwith to her home country. … Importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home."
[8]Once the threshold under Article 13(b) is crossed, the Supreme Court made the following points in respect of protective measures. At Paragraph 36, they say:
"There is obviously a tension between the inability of the court to resolve factual disputes between the parties and the risks that the child will face if the allegations are in fact true. Mr Turner submits that there is a sensible and pragmatic solution. Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country."
[9]As raised by counsel on behalf of the applicant father, the Court of Appeal has very recently considered the issue of Article 13(b) and mental health in the decision of Re B [2024] EWCA Civ 1595. That case concerned a British mother with a history of mental health issues, including a suicide attempt in 2019, who gave birth in Australia, where she had lived for a number of years, and unlawfully removed the child to England shortly thereafter when the baby was still in arms.

(b) The Court of Appeal held that:

"The effect of this approach… is that the court must assess the nature of the risk, the likelihood of the risk materialising and the consequences of the risk materialising for the child. In a case such as the present, for the purposes of determining whether the circumstances set out in Article 13(b) have been established, this will involve consideration of the nature or extent of any potential deterioration or relapse in the mother's mental health and the nature or extent of any potential impact on [the child]."
[10]I will make further observations on the application of Re B to this particular case below in my judgment.[11]I turn then to the evidence. I have read and considered the full court bundle, which contains a number of recordings and WhatsApp messages between the parents. The court has been assisted by an expert report from Dr Gamble, a consultant forensic psychiatrist who was appointed within the proceedings to report on mother's mental health and the impact of a forced move back to New Zealand. These being summary proceedings, the court has heard only short oral evidence from the parents confined to the issue of consent to the child's removal. The court also heard oral evidence from Dr Gamble. I will very briefly summarise the short evidence I heard and my observations on the credibility and reliability of the witness evidence.[12]Turning first to father, father's position is that he never gave consent to mother removing the child to England. Insofar as there are passages within the recordings and WhatsApp messages that may suggest he was agreeing to mother returning to England and raising the child in this jurisdiction with the support of her family, he says that nothing was set in stone and there were only discussions about various options for the future. He told the court he made clear to mother within their discussions that she did not have his consent to move to England but in his oral evidence was unable to point to any specific passage in the messages or recordings that supported that. He denies any domestic abuse within the relationship, although he has made some concessions in his second written statement about things he has said to mother which in this court's judgment do provide support for the allegations of emotional abuse and controlling and coercive behaviours.[13]Turning to mother's evidence, mother's written evidence sets out her experiences of the relationship with father and supporting evidence from professionals to whom contemporaneous concerns of domestic abuse were raised. As regards father's consent, her position is that she was first given that consent in January of 2024. She then returned to England in March, following the parents' separation, but returned to New Zealand in April to try and achieve a reconciliation with father. She says she loved him and wanted to give them a chance to be a family. The parents attended therapy together. Mother tells the court that leading up to the birth of the child, there were ongoing lengthy discussions about their relationship and the future, during which father made clear he would not prevent her from returning to England with the child. She says he agreed she could raise the child here in England with the support of her family if that is what she needed. There were also some discussions about father travelling to England to join her. She says that at the beginning of June when the relationship issues were not resolving, father told her to book her flight back to England. She says she did not do so at that point because she wanted to give father the opportunity to be at the birth of his son and she was reassured that she would be able to leave when she needed to. She says that if she had known then that father would renege on his promises and issue legal proceedings under Hague, she would have left New Zealand before the child was born. Following the child's birth and on the day of discharge from hospital, she says that father again told her, their relationship having finally broken down, to go and stay with her friend and then go back to the UK. Mother accepts that she did not tell father she was leaving and provide him with any of the travel details. She only informed him once she was back in England. Her statement details that she was advised not to inform him of her travel details by the domestic abuse support service who were assisting her.[14]I turn to my brief observations on the evidence of each parent. In my judgment father was an unimpressive and unreliable witness, and I say so for the following reasons. His evidence clearly shifted and evolved when he was confronted with the recordings and WhatsApp messages. His initial evidence within these proceedings and those initiated in New Zealand was to firmly and unequivocally deny that he had ever given any consent for mother, either face to face or in messages, to move to England with the child. That evidence then shifted in his written evidence to this court to an acceptance that he may have indicated he was open to the idea of mother returning to England but he was only trying to calm her down and reassure her so she did not feel trapped. But of course that creates an inherent tension in father's evidence. He accepts saying these things, albeit, he says, in order to placate her and reassure her, but in saying those things and in doing so, he was providing his agreement to her returning to England. Furthermore, when challenged about these matters in his oral evidence to the court, he had no credible response. When individual passages of the recorded conversations and WhatsApp messages were put to him, he simply responded with a grunt. He told the court he was lying or making concessions to mother in order to keep her calm. He described it in terms of a tactic or strategy he had to employ in dealing with her. He also said that he knew, certainly in June, it was unrealistic in any event for her to be able to fly at 36 weeks. He also suggested that these were general, open discussions about the future in which nothing concrete had been decided. The court does not accept those explanations. In my judgment, on a plain interpretation of father's words, they were clear and immediate, including clear directions such as "Book your flight" or "Go back to the UK". It includes words to the effect that "I have agreed for you to return to England and raise [the child] there". As regards the suggestion he was simply placating mother, the conversations in June, having considered the full recordings, were often unpleasant and provoking to mother. There is in my judgment no suggestion that father is engaging in a conversation whereby he is simply trying to placate her.[15]In contrast, I am satisfied that the mother's evidence was credible and was reliable. The impact of these proceedings upon her was palpable in court yesterday. She began physically shaking as father commenced his evidence and was clearly shaking throughout giving her own evidence. The court observes in terms of the reliability and credibility of her evidence that there is contemporaneous evidence that collaborates her account of the relationship and the allegations of domestic abuse. Similarly, her position on consent is supported by the contemporaneous recordings of conversations and messages passing between the parents and between mother and others. In my judgment the recordings provide important evidence of what was being discussed between the parents. It is also in my judgment clear from the recordings that father was aware that he was being recorded and that this was not some manipulative plan by mother to covertly gather evidence in preparation for some possible hypothetical court proceedings in the future. Furthermore, in my judgment mother is clearly an intelligent woman, and it is clear from the evidence that she was aware of the Hague Convention and the difficulties it could cause if she remained in New Zealand separated from father and as a single parent. She openly raised the Hague Convention with father and he accepts that she did so, albeit he says he does not know what it was all about. I am satisfied that mother would not have returned to New Zealand in April or remained in New Zealand in June when she could still fly home unless she genuinely believed that she had the necessary reassurance and consent from father that she would be free to leave and return to England with the child if she needed to and he would not stop her. Where therefore the evidence of the parents has differed before this court, particularly on the issue of consent, for all of those reasons I prefer and accept the evidence of mother.[16]I turn then to Dr Gamble. Dr Gamble gave expert evidence on mother's mental health. From the records it is clear that she has and has had emotional and behavioural difficulties since childhood. He noted that various diagnoses have been suggested over the years. The mother’s mental health problems, he notes, have largely affected her in the context of her intimate relationships and she has otherwise functioned at a high level. She has post-graduate qualifications and has worked in skilled professional roles. She has no history of criminality and only a limited history of alcohol or substance misuse. He opines that she has shown considerable resilience and resourcefulness, including moving to New Zealand to complete her post-graduate qualifications. Dr Gamble does not consider that a diagnosis of emotionally unstable personality disorder is justified given the limited effect on mother's functioning. He notes a diagnosis of complex post-traumatic stress disorder has also been suggested. He agrees she has several features of complex PTSD, although again the objective effects on her functioning are largely limited to her relationship with father. He has also considered a diagnosis of recurrent depressive disorder. Where an individual has repeated episodes of depression without any history of significantly elevated mood that would suggest a bipolar effective disorder, recurrent depressive disorder is a reasonable diagnosis. Her mood disturbance in his view is related to stress caused by conflict in her relationship with father, and in the past it has been related to stress in other intimate relationships. He notes that all mother's emotional behavioural problems appear to have arisen from crises in interpersonal relationships. Many of the symptoms she describes, he notes, are a possible reaction to what she was experiencing in her relationship with father rather than being evidence of mental illness, and it is therefore important not to over diagnose. He agreed that she needs to undergo psychological treatment, including trauma-focused psychotherapy such as EMDR, treatments which can take several weeks or months. She has been prescribed antidepressant medication including lithium. Again, he notes antidepressants have not tended to be effective and are unlikely to be effective when there are ongoing social or psychological stresses.[17]In terms of the impact on mother of a return to New Zealand, Dr Gamble concludes that there is likely to be a psychiatric impact on mother if she returns to New Zealand with the child. First, she may experience the decision for the child to return as being invalidating, and that could be a trigger for her experiencing high levels of emotional arousal and may lead to an emotional crisis. Secondly, on arrival in New Zealand, mother is likely to feel relatively alone and unsupported. Mother’s living arrangements and employment opportunities are unclear. Lack of stable accommodation and paid employment are likely to be further stresses for her, leading to an exacerbation of her anxiety and depressive symptoms. The prospect of further conflict with father, including in the context of further family law proceedings in New Zealand, is also likely to be a further stressor. Therefore, he concludes in his report that following return to New Zealand, mother’s mental health is likely to be adversely affected with symptoms of depression, anxiety and a risk of self-harm or attempted suicide.[18]In terms of the impact on the child, Dr Gamble notes that there is no evidence that mother’s mental health difficulties have ever had a significant effect on her ability to look after the child. There is, he notes, potential for her mental health difficulties to affect her ability to look after the child if she begins to experience higher levels of stress and anxiety than at present. He notes again there was a risk of her taking a further overdose, although that must be balanced against the fact she has not done so since 2019. Dr Gamble opines that psychological and psychiatric treatments could be delivered in New Zealand, but security, accommodation and income would be essential for the mother as soon as possible after she arrives. Social support would also be important, which would be assisted by employment.[19]Under cross-examination and in his oral evidence, Dr Gamble confirmed the following key matters: firstly, that whilst mother has had clear mental health difficulties, the impacts on her functioning have been more limited and she has demonstrated resilience and resourcefulness. It is likely a forced return to New Zealand will lead to a deterioration in mother's mental health. There is a risk that the deterioration in her symptoms could include self-harm or a further suicide attempt, but whilst that would clearly be very serious harm both for her and the child, he did not consider the risk to be significant given the other protective factors: as noted, mother's resilience and resourcefulness in the past but also, importantly, the presence now of the child. He went on that there is no evidence that mother's mental health has impacted thus far on her ability to provide good enough care for the child, although again he accepted that serious depression and a return to suicidal thoughts would have a serious impact on the child's welfare. He also accepted that in terms of the evidence before him, she has not as yet ever been placed in a situation of caring alone for the child in New Zealand. Thus far, and including the recent decline in her mental health as a result of these proceedings, she has been caring for the child in this jurisdiction surrounded by the love and support of her family, who have been assisting her as her mental health has declined in response to the stress of these proceedings.[20]Turning then to my observations on the evidence of Dr Gamble, he was not in my judgment dogmatic and did appropriately and openly respond to the questions asked of him. However, in my judgment he did not provide a clear and robust assessment of future risk of harm for the child. As submitted on behalf of mother, he seemed at points in his oral evidence, when considering the future likelihood of self-harm or suicide or the impact of that on care afforded to the child, to dismiss those matters as only speculative or hypothetical and therefore not relevant if that likelihood was not significant or inevitable. In my judgment, in a future and forward-looking assessment, that is not the correct approach to a robust assessment of risk. What is required is a balancing of the risks and protective factors in the real circumstances that mother would face if caring alone for the child in New Zealand. The idea that that was simply engaging in speculation or hypothesis was not helpful for the court in terms of his evidence.[21]Within the context of that legal framework and the evidence that has been before the court, I therefore turn to the court's analysis and decision. I begin with the Article 13(a) consent defence. Again, I remind myself that that is a matter of fact to be determined by the court, with mother having the burden to prove consent on the balance of probabilities. I remind myself of the essential elements from the decision of Peter Jackson LJ. Consent must be in clear and unequivocal terms. It must be considered in the realities of family life and relationship breakdown. Consent must be operative at the time of removal. It can be given in advance or be conditional on the happening of a future event. Consent can be withdrawn at any point before actual removal, but that must be communicated clearly to the removing parent. Consent does not need to be specific as to date, time or manner of removal.[22]I turn then to the court's decision. I am satisfied on the balance of probabilities that father had given consent for mother to return to England with the child, and that consent remained operative at the point of removal on 28 July 2024. I repeat my observations on the credibility of the evidence each of the parents gave on this issue and this court's preference for the evidence of mother where it conflicts with that of father. I am satisfied on the evidence that during the course of the pregnancy and following birth, on a number of different occasions father gave specific consent to mother returning to England if she wanted to, to raise the child with the support of her family. There are a number of examples within the evidence, and I record the following key examples, which are extracted from the position statement filed by counsel on behalf of mother, but in my judgment these examples encapsulate specific incidences of where father gave that consent. Firstly, on 31 January 2024 in a text message to father, mother said: "So we now need to discuss how we will agree to childcare arrangements. I would like sole custody with some regular visitation if that is something you are interested in at all. I will be fine if you prefer not to be involved. I do however want to know that you will agree to our current arrangements, which would allow me to move temporarily to the UK so our child so they can form strong bonds with my family. This would not need to be permanent but a few years whilst they are young, and as a single mom I won't be able to visit regularly enough to do this. I would help to ensure you can move or visit, if you prefer. I may then come back so they can have a settled life once school-aged.[23]Father's reply, which of course is material, is:
"You may do whatever you want, and to be honest I'd rather not talk to you. I am sure we can sort out the legalities later on but you are always free to do what you want. I am not going to be in your way whatsoever."
[24]In March 2024 mother texted father reminding him that if she was not good enough, he had promised that he would let her be with her family. There are then a number of examples to be drawn from the recordings on 1, 9 and 10 June. Mother says, "That makes me want to go back to the UK". Father says, "If that's the case, I cannot stop you from doing anything at all. I have never stopped you from doing things that you actually want". Another example: mother says, "I don't want to be the reason I'm in this country is because of you. If you say shitty things to me and then refuse to tell me you want to be in the kid's life, I don't want to be here". Again, father's response, "And I'm not going to stop you. I have never. I have never, I'm not a -- what do you call it? I'm not going to stop you from doing whatever. It's because I don't have any security". Another example: father says to mother, "Okay, so do you want to go back home then?". Mother says, "Yes, if you don't want to be in a relationship with me". Another example: mother says to father, "So if I move back to the UK, are you going to come and be in your child's life?". Father says, "Well, if you want me to do that I'd love to do that, even though I don't think that's the best idea, but it's whatever that you want". A further example: mother says, "I do want to move back to the UK. I would love for you to move back and be in the child's life. I don't want to take him away from you, but I don't want to be trapped here". Father's response:
"Okay, let's book your flight"
. They then discuss finances. Mother says, "You offered to pay for me to fly back to the UK. Would you still? I really need to go in the next day". Father's response: "Yeah, book it". He goes on, "I mean, that's always your choice. I'm not going to hold you. I'm not going to do whatever it is". Further on, he says, "I don't want to. I'm not playing the silly little game at all. So you may go. You may do whatever you want. The $1500 for an air ticket, that is not a thing at all. But I want you to think about the position that you're leaving me once again in". Further on, he says, "However, from my end, I'm absolutely okay with you going back home. I'm absolutely okay with you leaving me. However, right, please do not ask me for any help, okay, because you are separating yourself from me". Further on, he says, "I'm going to be in the child's life regardless of what you know, but when you go back home to the UK, it's your call and I won't be stopping you, and I can't". Further on, he says, "I prepared for myself. I prepared for myself already a long, long time ago, that I'm going to be here and you're going to be in the UK. You've made it clear to me and I haven't and I haven't". And materially, he says, "I have agreed to you going back home and raising the child there". Further on, he says, "Do go home then. I think that's one of the best things. I'm not going to hold you back. Go home, going back to the place where it all began". Further on: "So I'm not even going to hold you from leaving if that happens again". Further on: "So I'm not going to stop you…". Further on: "You do what you want because I want you to look after yourself. Go and get your maternity leave, have the child over there, name the child, do whatever you want". And finally: "Really, it's our choice and I want you to make up your own decision now for yourself. Okay, for yourself, …, that's all. I'm going to have to make decisions for myself as well. If you don't stay in the country, if you don't, if you don't accept my partnership, I won't hold it against you, because I haven't been good for you". Father has also confirmed in text messages that he was consenting to mother living in the United Kingdom with the child. He says to mother, "Do what it takes to make you comfortable. If that means going home for now, so be it. We can deal with things later"; and again, father to mother, "And please remember, I won't hold it against you if you go to the UK. If you really think that will help you and the baby, you have my blessings. We will work things out later".[25]On 28 June 2024, following the child's birth and on the day of discharge from hospital and following a disagreement between the parents, father refused to have mother and the child return to the family home. Mother's clear evidence was that father told her to go to her friend’s and then go back to the UK, affirming his agreement to her going home. The text messages which mother sent to her friend, her sister and her mother on 28 June are all consistent with mother's account, saying to her friend and family, "He wants me to move back in with you and then go back to the UK", "He said I should take [the child] back to the UK", "No, he said he thinks I should go back to the UK". Father also accepted in a text message exchange with mother on 29 June that he had said this, albeit, he says, this was one of a number of options that he put to her that she could take up. In my judgment father must accept that over the course of a number of months, in various forums and means, he said those things to mother, and of course in assessing whether or not father gave consent, I remind myself of what Peter Jackson LJ says in Re G about the need to apply common sense and the realities of discussions which take place within a family context and within the context of family breakdown.[26]On behalf of father, it is argued that any consent given before the child was born should be disregarded or at least treated with caution, and there is no High Court authority on a situation where consent has been given before birth. In my judgment that submission cannot be right. The answer lies in what is said by Peter Jackson LJ in Re G and earlier by Lord Justice Ward in Re P-J. In terms of timing, it is required that consent is given before removal, but it is specifically noted that advance consent may be given to removal at some future but unspecified time or upon the happening of an event that can be objectively verified by both parties, and crucially in terms of timing, such consent must still be operative at the time of the removal. There is nothing at all within Court of Appeal authority to suggest that in terms of timing, consent must be given only after the birth of the child. In my judgment the crucial point is that the consent must still be operative at the point of removal. Furthermore, it is clear that consent can be given contingent on some future event which in my judgment must obviously include upon the birth of the child itself. Again, common sense is urged in the Court of Appeal authorities. Parents may obviously discuss arrangements that will take effect once a child has been born, including potentially a return of the mother to her home country, where she may well have significantly more support in caring for the child, and both parents must be able to reasonably rely on those discussions and any agreements reached. Otherwise, intolerable uncertainty would be caused for parents but particularly for a mother preparing for the birth of a child. It is of course still possible and open to a parent to change their mind once the baby is born and they are fully able to do so. But the protection for that parent rests in the fact, as I have said, that whilst that remains open to them, that change of heart must simply be communicated to the other parent before they leave the jurisdiction. I am satisfied that this court can and should continue to consider what was said by father prior to the child's birth and the agreement and consensus reached. It is also of course the case that in any event, father in my judgment repeated his consent and agreement to mother going to the United Kingdom following the child's birth on 28 June.[27]It is also argued on behalf of father that this consent was not clear and unequivocal. Again, I remind myself of what was said by Peter Jackson LJ about the realities of family life and the context in which these discussions take place. Having carefully considered all of the messages and all of the recordings, I am not persuaded in context that these were only hypothetical discussions about future options with no firm conclusions reached. Clearly, the context in which these discussions were taking place is one in which a relationship which was highly dysfunctional was breaking down. There is lengthy discussion about the dynamics of their relationship and what the future may hold if they finally separated and concerns expressed on both sides about their hopes and concerns about the possible ways forward. However, within that, father is in my judgment clear and unequivocal that he does consent to mother going to England and raising the child there if that is what she needs or wants and if that is what she decides to do. Indeed, whilst various options are discussed, father expresses that he is content to leave that decision to her and he will support it and give her his blessing. Of course, he notes at various points in the discussions that he may not be entirely happy about that outcome, but again, as is clear from the decision of Peter Jackson LJ in Re G, reservations do not invalidate the consent. Understandable concerns do not mean consent is not still clear and unequivocal. For mother's part, on the evidence, I am satisfied that she was genuinely reassured. She felt she was able to stay in New Zealand to have the child because she had his agreement and consent that she could leave if she needed to.[28]Therefore, being satisfied on the balance of probabilities that a clear and unequivocal consent was given, the next question for this court is whether that agreement remained operative on 28 July 2024, when mother left the jurisdiction of New Zealand. It is clear again from the evidence that mother did not ask father again or share any specific plans or travel details with him, but I am satisfied that there was no requirement on her to do so, again in accordance with the authorities. She may have been concerned of course that if the issue was raised again, he would change his mind or have a change of heart, and she received advice that she should not discuss matters with him. But once consent, valid, clear and unequivocal, has been given, I am satisfied that the onus rested on father to communicate clearly any withdrawal of that consent. Again, as is clearly set out by Peter Jackson LJ in Re G, withdrawal must be made known by words or conduct to the removing parent. Withdrawal of consent to which a removing parent is unaware cannot be effective. I am clear that there is no evidence before this court that father ever communicated a withdrawal of his consent to mother.[29]It was also argued on behalf of father that mother's failure to provide details of her travel plans and then her messages following her return to the UK evidence a lack of belief in mother that she had a valid consent. Her explanation is that she knew that father would be angry that he did not have the opportunity to say goodbye and she needed time to work out what to say. The initial message sent by mother was that she would send an explanation soon when she had had a chance to put her words together. In my judgment those messages do not hold the importance that father places upon them. The reality is that mother was already in England when those messages were sent. She had no need to continue any pretence, if that is what it was, once she was safely back at home. By this point there was no purpose in not telling father that she was in England with the child, and the fact that she delayed conveying to him exactly what had happened in my judgment therefore supports her explanation that she simply needed more time to work out how best to respond to his queries.[30]Taking all of those matters into account, I am therefore satisfied as a matter of fact on the balance of probabilities that father did give his consent on numerous occasions to mother leaving New Zealand with the child to return to the United Kingdom to raise him here with the support of her family and that that consent, clearly and unequivocally given, remained operative when mother and the child left New Zealand on 28 July 2024. The defence under Article 13(a) of the Hague Convention is therefore established.[31]I turn to the Article 13(b) harm exception, and again I remind myself that all of the matters under this defence will remain relevant on the court's overall exercise of its discretion, but I consider them here for the purposes of Article 13(b). Again, I remind myself of the key elements of that defence. Mother must establish that there is a grave risk that her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The risk to the child must be grave. It is not sufficient that it is a real risk of harm. "Grave" indicates an enhanced level of seriousness. Of course, "grave" characterises the level of risk, but it is inextricably linked with the nature of the harm. In terms of what constitutes an intolerable situation, it is a situation which the child in these particular circumstances should not be expected to tolerate.[32]The situation which the child will face on return also depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face that intolerable situation, and in considering the Article 13(b) defence I remind myself that strands relied upon by mother must be considered holistically and cumulatively. I turn at first to the allegations of domestic abuse. Taken at their highest in these summary proceedings, mother says that she has experienced physical, psychological, emotional and financial abuse throughout the relationship. That includes an incident of physical abuse in 2021 in which she suffered injuries. That is recorded in her medical records. She also says that she has been subjected throughout the relationship to coercive and controlling behaviour, which has included father leaving her on multiple occasions and then coaxing her back into the relationship, only to leave her again. Father accepts in his evidence being critical on occasions about aspects of mother's appearance and the way she cared for herself, including such things as her body hair including on her face. Mother has been referred on a number of occasions by professionals to a domestic abuse support service in New Zealand. Mother's therapist has provided a report for these proceedings that father was in her view emotionally abusive and manipulative to mother and describes how he would coax her back when she was at her most vulnerable and then turn upon her. These are in my judgment all serious allegations of domestic abuse, including coercive and controlling behaviour. They may not be the very gravest these courts may see, but they are in my judgment clearly serious and their impact on mother's mental health, given her particular difficulties and vulnerabilities, has been significant. It has included a suicide attempt whilst in New Zealand and with father in the home in 2019, and the ongoing need for psychological therapeutic intervention and medication throughout her time in New Zealand.[33]It is relevant in my judgment in terms of considering the impact of the domestic abuse and the risk of harm on mother and thereby the child that mother, if she is to return to New Zealand, would be entirely isolated without any effective support network. She has no family, and her only friend is due to leave New Zealand. She would be placed in a situation where she would be entirely dependent on father, taken at the highest, where there are allegations that he is a perpetrator of serious abuse including coercive and controlling behaviour. In terms of the risk of harm to the child, a child's exposure to serious domestic abuse is a cause of significant harm for the child. Children are themselves victims of domestic abuse when exposed to it. The impact therefore of domestic abuse on the primary carer is a matter of serious harm to the child. I am therefore satisfied that the domestic abuse would expose the child to a risk of serious harm.[34]Turning to the matters of mental health, I remind myself of the recent authority of Re B [2024] EWCA Civ 1595, which instructs this court to approach these matters in the following way. Firstly, I must assess the nature of the risk; secondly, the likelihood of the risk materialising; and then finally, the consequences of the risk materialising for the child. I do acknowledge that there may appear, as submitted on behalf of father, a somewhat striking similarity on the facts between this case and the authority of Re B. But whilst of course this court must apply the legal test as set out by the Court of Appeal, all family cases must be carefully assessed on their own particular individual facts. Each factual matrix remains unique to the particular family that the court is dealing with. In Re B, mother on a reading of the judgment had a significant social network of support in Australia if she were to be returned. That is simply not the case in the case before me.[35]I turn then to mother's mental health difficulties. It is clear and accepted by all that mother does have significant mental health difficulties which are longstanding in nature. Turning to the nature of the risk and the nature of the harm, turning first to that harm, the evidence before the court is that a return to New Zealand is likely to cause a deterioration in mother's mental health. The nature of that harm includes recurrent depression but also a risk of self-harm and suicide. Mother has made three previous attempts on her life, the last in New Zealand in 2019. So the nature of the harm that the court is dealing with includes recurrent depression but a risk of self-harm and suicide. In my judgment harm which includes a risk of suicide must be regarded with the utmost seriousness. Turning then to the likelihood of that risk, as I have noted, the evidence of Dr Gamble is that if mother is to return to New Zealand against her wishes, deterioration in her mental health is likely. He notes that self-harm and suicide are a risk, albeit Dr Gamble does not consider that risk to be a significant one. There are protective factors which the court has to weigh in terms of the likelihood of the risk: mother's previous resilience, her obvious insight into her mental health and willingness and ability to engage with support services when needed, albeit the effectiveness of treatment in these circumstances is questionable. But perhaps most importantly in terms of protective factors is the fact that she now has the child. But the court has to weigh against those protective factors in assessing the risks of deterioration: the fact that on the evidence the level of risk, as Dr Gamble accepts, will be exacerbated by uncertainty regarding accommodation, uncertainties in the absence of stable financial support, mother's social isolation in New Zealand, the fact she will miss the support and assistance she has clearly benefited from when caring for the child in England, the impact on mother of the stress of ongoing legal proceedings in New Zealand and again the absence of family support around her in engaging with those proceedings. All of those matters, as Dr Gamble accepts, are likely to increase the risk of a significant deterioration in mother's mental health given her particular background and traumas she has suffered. Mother's evidence to this court is that her mental health has already deteriorated significantly as a result of these proceedings, leaving her mental health fragile. She is very anxious. She feels herself being pulled back into depression, reliving traumatic experiences, terrified of returning to New Zealand and scared that her suicidal feelings will return. As I have already noted, her stress and the impact upon her of these proceedings was palpable when in court yesterday. I am therefore satisfied that there is a likelihood of these risks materialising.[36]I then turn to the consequences for the child of these risks materialising on him. Will it expose the child to grave harm or an intolerable situation? Again, it is accepted in principle and was accepted by Dr Gamble that a primary caregiver suffering from recurrent depression may well have very significant impacts on the parent's ability to meet the physical and emotional needs of a wholly dependent, very young baby, resulting in neglect at crucial stages of the child's development. Furthermore, a primary carer suffering from self-harm and suicidal ideation would also, again, as accepted by Dr Gamble, have very serious welfare implications for a dependent baby. In my judgment, these are matters which are more than a certain amount of rough and tumble, discomfort and distress for a child. In my judgment and as Dr Gamble accepts, mother's care of the child, if these risks materialise, would be impacted and place the child at risk of very significant and serious harm. I have to weigh against this that there is to date no evidence that mother's mental health has impacted on her capacity to meet all of the child's physical and emotional needs. There is no evidence he has been neglected in any way whilst in the care of mother. But again, this court has to look forwards and has to assess the evidence as it is in terms of the realities mother would face in New Zealand. In my judgment, it is very significant that mother has not cared for the child in New Zealand without the support and assistance of her family, and therefore the care she has afforded to him to date cannot be regarded as determinative of these matters. Looking forwards, if mother were to be forced to return to New Zealand, the situation would be one which is very different. Caring for the child alone, with only father in New Zealand, without any family support and no social network to assist, there is, in my judgment, a clear and grave risk of a significant deterioration in her mental health and thereby a grave risk of it impacting on her care of the child. In my judgment, the child would thereby be exposed to significant harm and/or an intolerable situation.[37]Bringing all of those matters together, summarising the court's position on mother's mental health, I am satisfied the nature of the harm that mother would suffer is serious. I am satisfied the likelihood of that harm materialising, is material and grave, that it must thus be taken seriously, and in terms of the consequences for the child of those risks materialising, whilst it has not manifested in the care of the child to date, I am satisfied that that risk materialising by way of a deterioration in mother's mental health, a risk of suicide and self-harm, with mother isolated and without support in New Zealand, if those risks were to materialise, the consequences for the child would be significant and he would be exposed to serious harm. But of course, finally, I have to look at the domestic abuse and the mental health looked at together in a context again where mother would be isolated and alone in New Zealand, and taking all of those matters holistically, I am satisfied that the child would be placed at grave risk of harm and in an intolerable situation if mother and the child were to be returned to New Zealand.[38]In that situation and that threshold being crossed, I must of course turn to protective measures. In considering protective measures, the court must examine in concrete terms the situation the child would face on a return being ordered. If undertakings are offered as a protective measure, the court has to take into account the extent to which they are effective in ensuring protection, compliance and enforceability, and that was made clear by Cobb J in Re L (Article 13: Protective Measures)(No. 2) [2023] EWHC 140 (Fam). There is a need for caution when relying on undertakings as a protective measure. The court must question carefully their enforceability in the state of habitual residence. It is for the left-behind parent to demonstrate the effectiveness of the protective measures offered. The evidence which has been offered by father is silent on these matters. In closing submissions, counsel for father was unable to assist the court on the effectiveness in New Zealand of any undertakings that father may offer. After the court rose, an email was received in which father has amended the protective measures he would seek to offer in light of the court's observations.[39]In terms of assessing the effectiveness of protective measures, they are clearly important in this case in two different ways. Firstly, the absence of effective measures increases the risk of a significant deterioration in mother's mental health, as noted in the evidence of Dr Gamble, but also, of course, they are offered by father as measures to ameliorate the risks of harm the court has found. Father offers to the court that he will not take any steps to try and remove the child from mother's care until there is a court hearing in New Zealand. He offers not to harass, pester, molest or use violence against mother. He offers financial support to obtain separate accommodation and to provide financial maintenance at NZ$800 a week for a period of three months or until a decision is reached by the New Zealand courts, whichever is sooner. As I have noted, he has now amended that offer to one of a lump sum of NZ$9,600 to assist mother obtain accommodation and meet her financial expenses. In his evidence, he details how mother would be able to access treatment in New Zealand for her mental health.[40]In terms of assessing the effectiveness of those measures, I first of all do note that mother's visa does allow her to work and it may enable her to access certain benefits. But I am satisfied that whilst employment is of course a possibility, as is assistance from the New Zealand state, none of that will be in place immediately upon her return to New Zealand, and such matters as employment will need to be navigated alongside her obligations as primary carer of the child. She will therefore, in my judgment, at least for a period of time, be dependent on father for the stability of her accommodation and her financial support. Whilst I note the offer that father now makes, which provides some assurance as to the stability of that offer, I do note its limited nature and that there is still considerable uncertainty for mother in terms of her ability to quickly obtain suitable accommodation, given her circumstances and the uncertainty regarding her financial maintenance and stability once the capitalised sum has been spent. Furthermore, the court must look not just at matters of financial support and stability, particularly in a context where there have been allegations of financial abuse, but look more broadly at the undertakings father offers regarding the matters of domestic abuse and the impacts of that on mother's mental health. He offers an undertaking not to harass, pester, molest or use violence against mother. This is in my judgment also and equally an important protective measure for mother, in circumstances where she alleges emotional and psychological abuse and particularly corrosive and controlling behaviours. In my judgment, once she returns to New Zealand, she will be particularly vulnerable to those mechanisms and methods of abuse.[41]Within the court bundle is included information about the availability of protective orders in New Zealand that mother may be able to apply for, but I have of course no information about the prospects of her securing such protective measures within New Zealand, those being a matter for the New Zealand courts. In terms of the undertakings that father offers within this jurisdiction and their effectiveness, again I reiterate that the court has no evidence from father as to the effectiveness of that undertaking in New Zealand, and therefore there remains in my judgment vulnerability of mother to that grave risk of harm and to the child of exposure to that particular form of domestic abuse with the protective measures father offers being unclear as to their effectiveness and efficacy. I also note that in terms of mental health, whilst I am satisfied that New Zealand offers a perfectly good and appropriate health service that mother would be able to engage with when she returns to New Zealand, it was clear from the evidence of Dr Gamble that the effectiveness of that treatment is unlikely while she remains subject to ongoing triggers and stresses, and the treatments of a psychological therapeutic nature are long-term treatments which do not have immediate curative effects. I am therefore satisfied that that does not provide an effective and protective measure for mother's mental health upon her immediate return to New Zealand. So whilst, as I say, I do take into consideration the improved and amended promise given by father relating to accommodation and financial stability, it does not in my judgment provide effective protection against the risks of harm identified under Article 13. I am therefore satisfied that mother has also crossed that high hurdle and established her defence under Article 13(b). Again, I repeat in any event all of those matters regarding domestic abuse and the impacts on mother's mental health and thereby the impacts on the child remain relevant to the final exercise of this court's discretion.[42]Turning then to the final exercise of the court's discretion, I remind myself of Re M in 2007, the decision of the House of Lords, as to the approach to be taken to this final exercise of the court's discretion as to whether, defences having been established, I should nevertheless make an order for the return of the child to New Zealand. I consider and have taken into account relevant considerations as set out in Re M including the various aspects of Hague Convention policy: the important principle of the comity of nations to the Hague Convention and the important policy principle of achieving the swift return of abducted children, including the deterrent effect of such swift return. I also have to take into consideration those wider matters impacting upon the child's rights and welfare, bearing in mind in my overall exercise of discretion what was said in Re D in 2006, that if a 13(b) defence is made out, it may well be deemed inconceivable that this court would return a child and place him in that position of grave risk of harm or intolerable situation.[43]I make then in terms of my final exercise of discretion the following observations. In my judgment this is not a paradigm case where the policy objectives of the Hague Convention are clearly engaged. Mother did not abduct the child. She left New Zealand with father's consent. The child resided in New Zealand with his mother for just one month. He has been settled in England now for eight months of his life. This is therefore not a case where the state of habitual residence is better placed by way of the child's connection with that state and the available evidence within it to determine longer term welfare matters for the child. His closest connection is with this jurisdiction, having lived here now with his mother for eight months. In terms of the underpinning policy objectives of the Convention, I am therefore satisfied that this is a case where these courts may well be better placed than those of habitual residence to determine matters of welfare. In terms of the child's rights and welfare more generally, of course that includes importantly his relationship with his father and his ability to develop and form a meaningful relationship with him. I am satisfied that this jurisdiction is able to fairly determine those longer-term welfare matters and the longer-term arrangements for the child that will best meet his welfare needs in terms of his relationship with both of his parents. In that regard, I note that whilst father did take prompt action to initiate legal proceedings in New Zealand, he made no effort to contact mother to inquire about the child, how he was doing, his development or to attempt to develop a relationship with him, albeit within the restrictions that distance created. Furthermore, in terms of the child's rights and welfare, this court has determined that a return to New Zealand would expose the child to an unacceptable risk of grave harm, harm of exposure to domestic abuse and deterioration in his primary carer's mental health. In contrast, he is a happy, settled and thriving baby here, supported by a loving family with whom he has now established bonds. So when I weigh all of those matters within my overall exercise of discretion, I am satisfied that I should refuse the father's application for summary return and I therefore dismiss the application. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk This transcript has been approved by the Judge