HG (A Child)(Abduction: Consent, Acquiescence, Art 13b), Re [2026] EWHC 1385 (Fam)

[2026] EWHC 1385 (Fam)Case No FD26P00102
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985
INCORPORATING THE 1980 HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
IN THE MATTER OF HG
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 3 June 2026
Before
MR DAVID REES KC(Sitting as a Deputy Judge of the High Court)(In Private)(Re HG (A Child)(Abduction: Consent, Acquiescence, Art 13b))
Between
LBApplicantMVRespondent
Mr Graham Crosthwaite (instructed by Wilson Solicitors LLP) for ApplicantMr Frankie Shama (instructed by ITN Solicitors acting through the Free Representation & Advocacy Project) for RespondentHearing Hearing date: 2 June 2026Approved JudgmentThis 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 and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

Mr David Rees KC:

[1]This is an application under the 1980 Hague Convention for the return of a young boy, HG to the State of Texas in the United States of America.[2]The Application is brought by HG’s father, LB who is represented by Mr Graham Crosthwaite of Counsel. The Respondent is HG’s mother who is represented by Mr Frankie Shama of Counsel. I am grateful to them both for their written and oral submissions. I must also record particular gratitude to Mr Shama and his instructing solicitors, ITN Solicitors (acting through the Free Representation & Advocacy Project) who are both acting pro bono in this matter.

The Evidence

[3]I heard oral evidence from both parents limited to the issues of consent, acquiescence and the date of retention. I did not feel able to fully accept the evidence of either parent. I felt the father to be quite controlled in his answers, limiting what he was willing to reveal, and in some cases seeking to deflect or obfuscate. The mother was almost the opposite. She answered at length, but I found her evidence to be somewhat unfocussed at times and felt that she had a rather careless attitude to specific details which led to some confusion about the chronology of events.[4]The father is an Indian national. He holds a United States Green Card entitling him to live and work in the USA and he currently lives in Texas. The mother is a British national. The parties met through a dating app in 2023, and later that year the father travelled to the UK where they underwent a religious marriage ceremony (Nikah), following which the mother travelled to the USA, staying for around a month. During this time, the parents opened a joint bank account in the USA and the father added the mother to the tenancy agreement of the property where he was living in another part of the USA.[5]The mother returned to the UK for a period and applied for a US visa. Following the grant of this, the mother moved to the USA, although the parties jointly returned to the UK in April 2024 for a short period when they underwent a civil marriage. They then returned to the USA, and the mother applied for a US Green Card which would give her permanent residency in the USA. Later in the summer of 2024 HG was born. As he was born in the United States, he is a US Citizen and has dual US and British nationality. Later that year the father obtained a new job based in Texas and the family moved there in February 2025.[6]In the meantime, the mother had found it difficult to adjust to life in the USA. The father’s job meant that he was often away from home. The mother has claimed that she was suffering from post-partum depression during this period; whilst there was no formal diagnosis of this condition, she was referred to a psychologist following a paediatric check-up for the child and I accept the mother’s evidence that she was upset and crying a lot. A further difficulty for the mother was the constant presence of the paternal grandmother who was staying with the parents during this time and with whom she did not get on.[7]It is common ground that an incident occurred in late November 2024. The precise details are in dispute, but the father accepts there was an argument and that he squeezed the mother’s ear; the mother claims that he twisted it and hit the back of her head with an open palm. In any event, matters escalated and the mother called the Police who arrested the father, who was held overnight. He was released the next morning, which led to a further argument and a further call by the mother to the police. I do not understand any further action to have been taken in relation to this incident.[8]The parents applied for both US and British passports for HG. His US passport was issued in December 2024 and his British passport in early March 2025. In late February 2025 the mother received “an advanced parole notice”, which is official permission allowing her to travel abroad and return to the USA without abandoning her pending Green Card application.[9]It is common ground that the mother wished to travel to the UK with the child, and the father agreed for her to do this, although what each party specifically agreed to is highly contentious and lies at the heart of this dispute. I will outline the parties’ respective positions in more detail later in this judgment, and will for the time being confine myself to a chronology of the key dates.[10]On 9 January 2025 both parents signed the lease for their new property in Texas. That lease was to begin on 1 March. Between 26 February and 2 March the father moved the family’s possessions from their current property to their new home in Texas. The mother and child did not accompany the father on this trip, but flew and stayed in a hotel. Between 3 and 12 March, the father was away for work in Colorado. On 4 March the father purchased one way tickets for the mother and child to travel to the UK. No date for their return to the USA was set. On 7 March the child’s British passport was issued, although it is unclear when this was received by the parents. On 10 March, the mother, accompanied by her mother-in-law, attended the Texas Department of Public Safety to get the equivalent of a criminal record check certificate for the mother. The mother is a UK qualified medical professional and her case is that this certificate was required to let her resume work in that capacity in the UK. On 13 March the father returned home from his trip to Colorado, and on 15 March the father drove the mother and child to the airport from where they flew to the UK. It is common ground that the child’s US passport was used to enter the UK.[11]On arrival in the UK the mother and child stayed with the maternal grandparents who had recently returned to the UK from Pakistan. On 6 April 2025 the mother told the father that she did not want to return to the USA. She also began undertaking medical locum work, although I do not have evidence as to the date on which she began doing so.[12]There then followed a number of months of discussion between the parties, as to what was to happen next. At this stage they both still considered themselves to be in a relationship with each other and they were looking for a way forward. The father sought to persuade the mother to return to the USA, but he was open to considering a move to the UK himself and this option was discussed between the parties. One of the factors that the parties had to consider was their relative earning potential. Whilst the father had a good job in the USA, his earning potential would be significantly lower in the UK. By contrast, the mother is a qualified medical professional able to practice in the UK, but would need to take further exams before being able to do so in the USA.[13]The father’s evidence is that a conditional agreement was reached under which he would move to the UK. This would be on the basis that the mother would be the main breadwinner, whilst he stayed at home to look after the children. The mother would rent a suitable furnished property for them all to live in and would set up a joint bank account so they could share their finances. The mother’s evidence is that the father agreed to move here, but making no mention of any conditions.[14]During the summer of 2025, the parents and child went on two trips together as a family; to Turkey in June 2025 for a holiday and to the Middle East the following month to visit members of the father’s family. On the first occasion the father travelled via the UK, on the second the father travelled direct from and to the US, whilst the mother and child travelled from and to the UK. The father paid for all of the flights. On these occasions the father brought with him clothes and other possessions belonging to the mother that she had left in the USA.[15]In order for the father to move to the UK, he required a spousal visa. This in turn required the mother to present six months’ worth of payslips in support of the application. The father took charge of making the application and became frustrated with what he perceived as a lack of enthusiasm by the mother, sending her a text on 27 July 2025 “I don’t think you guys are serious … I am fed up with you on this matter. I am not dying to come but I am not going to sit and wait.”. His involvement in this process is evidenced, for example, by the fact that in October 2025 he emailed the mother’s employer directly to obtain information about a document that was required for his visa application.[16]The father visited the UK again in September 2025, bringing more of the wife’s belongings with him. During this visit the parties again examined their finances and calculated that the father alone could earn as much in the USA as they could both earn in the UK, and the mother accepts that she considered the possibility of returning to live in the USA. On 6 October the father (untruthfully) told the mother that a lawyer had told him that she would be treated as having abandoned her US immigration status, although he subsequently accepted this was not the case.[17]Throughout the summer and autumn of 2025 there were text messages between the parties in which they expressed changing views about where they should live. In May 2025 there was a series of messages in which the father asked the mother to return to the US. Similar messages were sent in August and September 2025. Whereas on 9 October the father messaged the mother telling her it was good for her to work 2-3 days a week and that “It’s better to have kids there in the UK so you can meet your mum always”.[18]By the autumn of 2025 the father was expressing the wish to have another child, sending the mother a text “if you don’t get pregnant I have no interest in moving UK for low or zero salary”. On 8 October the mother took out a tenancy on a property in the UK. This was a six month tenancy at a rent of £1,700 per month, and the parents had discussions about the father breaking the tenancy on their property in Texas, in the course of which the father said “and of course I will come for HG and other kids”. The father’s visa application was progressing, and he attended an appointment in Texas to have his biometric data recorded. Around this time the mother told one of her friends that the husband was moving for her.[19]The father came to the UK in December 2025. Although the mother suggests in her witness statement that he also visited in October and November, this does not appear to have been the case. There was an argument on the father’s arrival, with him calling the police. The trigger for this argument appears to have been the fact that the mother was keeping HG’s passport at her parents’ house (where she was still living) rather than in the rental property. No action was taken by the police who did not consider it to be a matter requiring their attention. The following day the family flew to Turkey for a further holiday. The mother’s evidence is that the parties agreed that the plan was still for them to live together as a family in the UK. Around this time the mother conceived the parties’ second child. She is currently pregnant and her due date is in early September 2026.[20]By January 2026 the position had changed. On 15 January 2026 lawyers acting for the father sent the mother a letter threatening proceedings under the 1980 Convention for the return of HG to the USA. This led to the mother sending the father a number of abusive text messages. The father visited the UK again at the end of January. On this occasion there was an argument between the father on one hand and between the mother and the maternal grandmother on the other. Again the police were called, although no action was taken. These proceedings were issued on 11 February 2026.

The Hague Convention

[21]The application falls to be determined by reference to the provisions of the 1980 Hague Convention (“the Convention”). Article 1 makes clear that one of the objects of the Convention is:
"to secure the prompt return of children wrongfully removed to or retained in any Contracting State." 22. As Mostyn J identified in B v B [2014] EWHC 1804: "2. The Hague Convention of 1980 is arguably the most successful ever international treaty and it has over 90 subscribers to it, over half the countries in the world. The underlying and central foundation of the Convention is that, where a child has been unilaterally removed from the land of her habitual residence in breach of someone's rights of custody, then she should be swiftly returned to that country for the courts of that country to decide on her long-term future. 3. There are very few exceptions to this and the exceptions that do exist have to be interpreted very narrowly in order that the central premise of the Convention is not fatally undermined. It is important to understand what the Convention does not do. The Convention does not order a child who has been removed in the circumstances I have described to live with anybody. The Convention does not provide that the parent who is left behind should, on the return of the child, have contact or access in any particular way. The Convention does not provide that, when an order for return to the child's homeland is made, the child should stay there indefinitely. All the Convention provides is that the child should be returned for the specific purpose and limited period to enable the court of her homeland to decide on her long-term future. That is all it decides.” 23. The wrongfulness of a removal or retention is governed by Article 3, which provides that: "
The removal or the retention of a child is to be considered wrongful where – (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, or under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in subparagraph (a) above, may arise in particular by operation of law or by reason of judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State."[24]The substantive obligation to return is provided for by Article 12 of the Convention. This provides that:
"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith."
[25]There are limited exceptions to the obligation to return. These are set out at Article 13, which provides that:
"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – (a) the person institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."
[26]In this case the mother raises a number of defences to the father’s claim. In summary these are:(1) That there has not been a wrongful retention;(2) That as at the date of any retention HG was habitually resident in England and Wales. There is a disagreement between the parties as to the relevant date for any retention. The father says that it is 6 April 2025, when the mother told him she was not returning to the USA; the mother says that it is 15 January 2026, the date of the father’s letter before action.(3) That the father consented to HG being retained by the mother in England and Wales, alternatively that he has acquiesced in this state of affairs;(4) That there is a grave risk that a return to the USA would expose HG to physical or psychological harm or otherwise place him in an intolerable situation.

The Law

(a) Wrongful Retention

[27]It is not in dispute that immediately prior to HG’s departure to the UK in March 2025 he was habitually resident in the USA and that both parents were exercising rights of custody in relation to him.[28]However, the mother’s starting position is that there was no agreement between the parties that HG would be returned to the UK and that his retention in England was not therefore in breach of the father's rights of custody. Her contention is that the father had agreed to a trip on an open ended basis, describing his attitude as “let’s see how it goes”.[29]The parties are agreed that what constitutes a wrongful retention was explained by Lord Hughes in Re C (Children) [2018] UKSC at [43]:
“When the left-behind parent agrees to the child travelling abroad, he is exercising, not abandoning, his rights of custody. Those rights of custody include the right to be party to any arrangement as to which country the child is to live in. It is not accurate to say that he gives up a right to veto the child’s movements abroad; he exercises that right by permitting such movement on terms. He has agreed to the travel only on terms that the stay is to be temporary and the child will be returned as agreed. So long as the travelling parent honours the temporary nature of the stay abroad, he is not infringing the left-behind parent’s rights of custody. But once he repudiates the agreement, and keeps the child without the intention to return, and denying the temporary nature of the stay, his retention is no longer on the terms agreed. It amounts to a claim to unilateral decision where the child shall live. It repudiates the rights of custody of the left-behind parent and becomes wrongful.”
[30]Mr Shama referred me to the decision of the Court of Appeal in Re NY (1980 Hague Abduction Convention)(Inherent Jurisdiction) [2019] FLR 1266 in particular what was said there by Moylan LJ at [58] and [59]. He argues that unless I make a finding that the agreement between the parties provided only for a limited or temporary stay in England, there is no breach of rights of custody by the mother on which the 1980 Convention can “bite”. He also referred me to the decision of Peel J in Z v Z [2023] EWHC 1673 (Fam) where

the judge held at [15]:

“…it seems to me that there must be some ingredient to indicate that the departure from one country to another is intended to be temporary rather than permanent or potentially permanent, even if the precise date of return is not fixed. Thus, it is hard to conceive of a wrongful retention where the departure from the outward country is agreed to be open ended with no determining or triggering event… In each case, the court will have to do the best it can on the available information to determine the relevant date.”
[31]For the father, Mr Crosthwaite takes issue with this approach and argue that this issue really falls to be determined as part of the wider question of consent raised by the mother's argument under Art 13a. He noted that in Re P-J (Children) (Abduction: Consent) [2009] EWCA Civ 588 Wilson LJ held at [53]:
"If a left-behind parent with rights of custody gave consent, by which I therefore mean prior consent, to the child's removal, how can he successfully complain that it was in breach of his rights within the meaning of article 3 of the Convention? There is no good answer to this question. So the poor draftsmanship of the Convention gives rise to a conundrum: although Art 13 expressly suggests that the consent of the left-behind parent is something which the removing parent may seek to establish by way of defence, is not its absence, rather, something which the left-behind parent must establish as part of his case under Art 3 that the removal was in breach of his rights of custody and thus, in effect, wrongful? But the conundrum is an old chestnut and I would not wish to say anything which might prompt resurrection of it, even if such were possible. In re P (A Child) (Abduction: Consent) [2005] Fam 293 this court decided that the specificity of the reference to consent in Art 13 sufficed to draw all issues of consent into it and out of Art 3; as it happens, I also consider that the decision was correct."
Mr Crosthwaite also drew my attention to para [50] of Moylan LJ’s judgment in Re NY where he made clear that his judgment was not intended to depart from the approach to the issue of consent as set out in Re P-J and other cases. Ultimately Mr Crosthwaite argued that this point was unlikely to be very important, as the issue of whether the father agreed to an open-ended trip should be viewed through the lens of wrongful retention or that of consent really boiled down to an issue of where the burden of proof lay (in the former case with the father, and in the latter case with the mother). Although Mr Crosthwaite is correct that this is one aspect of this point, it is also relevant in another way. If the case is outside the Convention in its entirety, then I must refuse a return. If the issue is dealt with as a matter of consent under Art 13(a), then even if consent is proved, the court has a discretion whether or not to order a return.[32]In any event, as a result of the factual findings that I make below, I do not consider it necessary to determine this issue and do not do so.

(b) Consent

[33]The law concerning consent to a removal or retention was summarised by Peter Jackson LJ in Re G (Abduction: Consent / Discretion) [2021] EWCA Civ 139; [2021] Fam 239 at [25]. “The position can be summarised in this way:(1) The removing parent must prove consent to the civil standard. The inquiry is fact-specific and the ultimate question is: had the remaining parent clearly and unequivocally consented to the removal?(2) 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’s situation and consider all the circumstances in making its assessment. A 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.(3) 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.(4) A person may consent with the gravest reservations, but that does not render the consent invalid if the evidence is otherwise sufficient to establish it.(5) Consent must be real in the sense that it relates to a removal in circumstances that are broadly within the contemplation of both parties.(6) 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.(7) 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.(8) Consent can be withdrawn at any time before the actual removal. The question will be whether, in the light of the words and/or conduct of the remaining parent, the previous consent remained operative or not.(9) The giving or withdrawing of consent by a remaining parent must have been made known by words and/or conduct to the removing parent.

(c) Acquiescence

[34]The parties are agreed that the relevant principles are to be found in the speech of Lord Browne-Wilkinson in Re H (Abduction: Acquiescence) [1998] AC 72 at 90. “(1) For the purposes of article 13 of the Convention, the question whether the wronged parent has "acquiesced" in the removal or retention of the child depends upon his actual state of mind. As Neill LJ said in In re S (Minors) (Abduction: Acquiescence) [1994] 1 FLR 819, 838:
"the court is primarily concerned, not with the question of the other parent's perception of the applicant's conduct, but with the question whether the applicant acquiesced in fact." (2) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent. (3) The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law. (4) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced."
[35]Mr Crosthwaite made two further points:(1) Acquiescence can be contingent upon there being a concluded agreement; so that if there remain outstanding issues between the parties there can be no acquiescence. This is what Hale J (as she then was) described in P v P (Abduction: Consent or Acquiescence) [1998] 1 FLR 630 at 634 as a case “of parents seeking to compromise the situation, allowing the abducting parent to remain in the country to which he or she has gone, provided that the wronged parent is satisfied as to the other matters which are in issue between them. Only if there were such a concluded agreement could it be said that there was clear and unequivocal conduct such as to fall within the exception.”(2) That a parent cannot be said to have acquiesced in the unlawful removal or retention of a child within Art 13 unless he is aware of the act of removal or retention, is aware that it is unlawful and is aware, at least in general terms, of his rights against the other parent, drawing my attention to the decision of Charles J in D v S (Abduction: Acquiescence) [2008] EWHC 363 (Fam), [2008] 2 FLR 293. I did not understand Mr Shama to dissent from this proposition.

(d) Habitual Residence

[36]There was agreement at the Bar that the relevant principles by which the Court should assess habitual residence were summarised by Moylan LJ in Re F (A Child) (Habitual Residence) [2025] EWCA Civ 911, [2026] 1 FLR 89 at [58]. In the interests of brevity I do not set these out in this judgment, but I have conducted my assessment of habitual residence by reference to them.

(e) Art 13b

[37]The general principles governing the assessment of an Art 13(b) defence are well-established and there was no real difference in the submissions of the parties on the essential framework that the court has to apply. Both counsel referred me to the summary found in the judgment of MacDonald J in E v D [2022] EWHC 1216 (Fam) at [29-33], and Mr Crosthwaite also referred me to the summary set out by Baker LJ in Re IG (Abduction: Habitual Residence: Article 13b) [2021] EWCA Civ 1123. Again, I do not set these out in this judgment, but I have fully taken them into account in my decision.

(f) Discretion

[38]If I am satisfied that the mother has established one of the exceptions under Art. 13 to the obligation to return, then a discretion whether or not to order a return arises. In this context Mr Shama referred me to the well known observations of Baroness Hale in Re M (Abduction: Rights of Custody) [2007] UKHL 55; [2008] 1 AC 1288 at [42]-[45]. He also took me to the same judge’s comment in Re D (A Child)(Abduction: Custody Rights) [2007] 1 AC 619 at [55] where she held that:
"…it is inconceivable that a court which reached the conclusion that there was a grave risk that the child's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation would nevertheless return him to face that fate."

Discussion

[39]I then turn to consider the various arguments raised.[40]The first issue that I need to consider relates to what the parties agreed in March 2025 when the mother travelled to the UK with HG. The father’s case is that all he consented to was a limited trip, albeit one where a return date had not yet been set. The mother’s case is that the father had agreed to an open-ended trip to the UK with no specific expectation that she and the child would necessarily return at all.[41]In relation to this issue, I find that the father did not consent to an essentially open-ended trip and that all he consented to was a limited trip to the UK, albeit one where no return date had been set. Neither party really gave a particularly clear account of their discussions regarding the trip, and I consider that there is likely to have been considerable ambiguity in their discussions as demonstrated by the mother’s evidence that the father had told her “let’s see how it goes”. This expression is as consistent with a flexibility on the father’s behalf that trip should be of a few months’ duration as it is with the mother’s contention that there was no requirement for her to return with the child to the US at all. It is therefore essential to consider all of the surrounding circumstances at the time of the trip and in this context, I do not consider that the father was agreeing to anything other than a limited trip to the UK.[42]As at March 2025 the parties’ relationship was still generally in a good place, although I accept that there had been the incident in November 2024 when the mother had called the Police. The trip took place only a fortnight or so after the parents had moved into their new home in Texas, and in circumstances where the mother left most of her belongings behind in the United States. None of these matters point towards the trip being for anything other than a limited time. The trip was also booked shortly after the mother’s Advance Parole had been obtained which meant that she was now able to leave and re-enter the USA without affecting her Green Card application, which suggests that retaining the ability to return to the USA was a relevant consideration. It was also booked before HG’s British passport had been issued. This is relevant as if HG entered the UK on his US passport (as he did) he would only have been able to stay for three months. I accept though that the British Passport (which would allow HG to remain in the UK indefinitely) was received shortly afterwards.[43]I accept that the mother had been going through a difficult period, she was clearly lonely and did not enjoy the fact that the father was away for significant periods for work, leaving her with the paternal grandmother for company. Whilst there has not been a formal diagnosis of post-partum depression, I accept that the mother found the months after giving birth difficult, leaving her tearful and having to cope with a young child largely on her own. It is therefore wholly understandable that she should wish to travel to the UK and spend some time with her parents who had recently returned there from Pakistan.[44]I also accept that in advance of the trip the mother was taking steps to enable her to work in the UK. Given that the mother took her mother-in-law with her when she went to obtain the necessary criminal record check in Texas and paid for this on the father’s credit card, I think it likely that the father was aware, at least in general terms that the mother was considering working whilst in the UK. However, I do not consider that this is necessarily inconsistent with an intention that this should be a trip of limited duration. The mother’s evidence was that she had previously carried out locum work as medical practitioner in the UK and this was what she was intending to do again. This was not permanent employment that she was looking at obtaining; at least at that stage. As such I do not consider that this takes the mother’s case much further. Certainly, I do not consider it to be clear evidence that the father had agreed to an open-ended trip[45]The father drove the mother and child to the airport on 15 March. There is nothing in the evidence to suggest that he thought he would be saying goodbye to them for a long period of time or that they might never return to the USA. Taking all the circumstances into account, I find that the father only consented to the mother and child travelling to the UK temporarily, and that this is not a case where the move was “potentially permanent” to adopt the language of Peel J in Z v Z. On the alternative basis, if looked at through the lens of the mother’s Art 13a “consent” defence, I am not satisfied that the father provided anything like the clear and unequivocal agreement to a permanent or potentially permanent move.[46]I therefore consider that the mother’s statement to the father on 6 April 2025 that she and the child would not be returning to the USA was a repudiation of the agreement that she had previously reached with him, and for the reasons explained by Lord Wilson in Re C that I have set out above it was a unilateral decision by her as to where the child should live and a repudiation of the father’s rights of custody. I therefore find that HG was wrongfully retained by the mother in England and Wales on 6 April 2025.[47]I now have to consider HG’s habitual residence as at that date. By that stage he was just over seven months old. Of those seven months he had spent all but three weeks of that time in the United States. He was clearly settled and integrated into life in the USA up until the 15 March 2025. It was the only life that he had known. As at 6 April 2025 he had spent 21 days in the UK. He was staying in the maternal grandparents’ home as the mother had not taken steps to obtain any accommodation of her own. He was not attending nursery and I have no evidence of any other steps being taken within this period to integrate him into life in the UK. The mother’s evidence is that HG was registered at the local GP practice “within a month” of his arrival here. Had this taken place before 6 April, I am sure that the mother would have specifically said so. On the other side of the balance his father, his home and the family’s belongings all remained in the USA.[48]Mr Shama seeks to argue that as very young child, HG’s primary attachment is to his mother and that her (and thus his) habitual residence would have shifted very quickly upon travelling to the UK. He makes the point that the mother was born in this country; had previously lived and worked here and that her family all live here. He argues that it would not have taken much for her to regain habitual residence in England. Whilst I agree that the mother would have acquired habitual residence in England at some point in 2025 as she began working and rented her own property, I do not consider that she would have regained habitual residence before 6 April 2025. As I have already found, the parties had only agreed to a temporary stay in England and there is no evidence that within this short three week period that the mother had taken any other steps to integrate herself into life in England (for example by having begun work). In the circumstances I am not satisfied that the child’s residence in England had acquired the necessary degree of stability prior to 6 April 2025 and I find that as on that date he remained habitually resident in Texas.[49]The consequence of that finding is that the prima facie obligation under Art 12 of the Convention to order a return arises, and I must consider whether any of the exceptions relied upon by the mother apply. I have already considered the issue of consent above, so I now turn to consider the defence of acquiescence.[50]Mr Shama argues that at no stage did the father demand HG’s return to the USA until the letter before action was sent in January 2026. The father’s evidence in his second witness statement is that although he wanted the mother and child to return to the USA, but that she refused. Mr Shama argues that messages sent by the father later in 2025 propose or invite the mother to return, but do not seek to compel her to do so (eg “Pack your bags come her”; “We can try you coming here, if you want I come there and we fly together back”).[51]Mr Shama instead contends that the evidence was that the father was happy with the mother’s decision to live in the UK and points to the following features:(1) The father drove the process of obtaining his spousal visa; for example directly emailing the mother’s employer to obtain a necessary letter.(2) The parties travelled internationally on a number of occasions, but the father did not demand HG’s return to the USA, instead booking tickets to enable the mother and child to return to the UK.(3) The father gradually brought the mother’s clothes from the USA to the UK for her.(4) The father untruthfully told the mother that she could no longer enter the USA under her advance parole.(5) The father emphasised in text messages the benefits to the child being in the UK.(6) He sent a further text confirming that he would come himself to the UK, and told the UK police that this was his intention.(7) The parties agreed that the mother would rent a property for them.(8) The father searched for jobs in the UK.[52]For the father Mr Crosthwaite emphasises that(1) acquiescence can be contingent on there being a concluded agreement between the parties and(2) the father needed to be aware, at least in general terms of his right to seek a return.[53]He does not dispute that there was a lengthy set of discussions between the parties as to the father coming to the UK. However, he argues that this was based on an agreement that the father would obtain a spousal visa, and that the mother would rent a home and the set up a joint bank account. They initially tried to set up a joint account in June 2025, but could not do so at that stage as the father did not yet have a visa allowing him to live in the UK. By the time that his visa had come through, the mother was no longer willing to set up an account, although her reasons as to why this was the case were unclear from her oral evidence and not wholly consistent with the timeline of events. Her suggestion was that this was connected to a decision by the father to purchase property for his mother in the Middle East, although the father’s evidence is that she was aware of his intention to do so from at least May 2025.[54]In this context, I note the comments of Hale J in P v P (at 635) that it would be most unfortunate:
“if parents were deterred from seeking to make sensible arrangements, in consequence of what is usually an acknowledged breakdown in the relationship between them, for fear that the mere fact that they are able to contemplate that the child should remain where he has been taken will count against them in these proceedings. Such negotiations are, if anything, to be encouraged. They should not therefore necessarily fall within the exception or necessarily lead to the conclusion that as a matter of fact there was a subjective state of mind that was wholly content for the child to remain here.”
[55]Overall, I do not consider that there has been acquiescence in this case; essentially for the reasons given by Mr Crosthwaite. First, the father did not become aware of the Hague Convention and his right to seek a return of the child until November 2025, as such his conduct and comments prior to that date need to be seen in that light. Second, it is clear that throughout this period he wanted the mother and child to come to the United States and viewed the alternative of him moving to the UK as a second-best option. Hence the messages he sent to the mother asking for her to return and his comment that he was “not dying to come”. The fact that he paid for the mother’s and child’s travel to and from the UK for holidays abroad is simply consistent with a desire on his part to maintain his relationship with both his wife and son. In my view the discussions and messages demonstrate a developing intention between the parties that the father would come to the UK and live with the mother and child here, but this was not unconditional, and required the mother to agree to obtaining a property and to a sharing of their finances (as she would be the main earner). Although the mother rented a property, a deterioration in the parties’ relationship meant that ultimately, she was not willing to agree to a sharing of their finances and the negotiations broke down.[56]Given the contingent nature of the parties’ discussions, and the fact that they ultimately broke down shortly after the father became aware of his rights under the Convention, I do not consider that this is a case where the father can be said to have acquiesced in the child remaining in the UK notwithstanding the wrongful retention. It seems to me that this is a paradigm example of the parties seeking to make sensible arrangements for the future and I should be slow to hold that by entering into them the father had thereby acquiesced in the child’s retention in the UK.[57]Nor do I consider that is this a case where the words or actions of the father have clearly and unequivocally led the mother to believe that he is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return. The mother has been aware throughout that discussions were predicated on the father himself coming to the UK and on there being a sharing of their joint finances.[58]In the circumstances I am not satisfied that the father has acquiesced in the child’s wrongful retention and I find that the Art 13a exception has not been made out.[59]I then turn to consider the mother’s reliance upon the Art 13b exception; that there is a grave risk that a return would expose HG to physical or psychological harm or otherwise place him in an intolerable situation. Here Mr Shama’s case has three broad limbs.(1) That a return will cause a deterioration in the mother’s mental state so as to impact her ability to parent HG;(2) That there is a risk that the mother may not be permitted to re-enter the USA, with the consequence that she might be separated from HG;(3) That the father has subjected the mother to physical abuse and used police call outs as a means of intimidating the mother and her family. I will deal with these each in turn, although I accept that I must also consider them cumulatively to see whether the mother has established the necessary grave risk.[60]So far as the risk of deterioration in the mother’s mental health is concerned, Mr Shama points to the difficulties that the mother experienced following HG’s birth, and the fact that she would be entirely reliant upon the father’s medical health insurance in the USA. In order to support her case on this ground, the mother had obtained permission to instruct Dr Tom McClintock, a consultant forensic psychiatrist to prepare an assessment of her, and he met with the mother on 30 April 2026. His report is unhelpful to the mother’s case responding to certain questions raised within his instructions as follows:
“Please comment on the psychiatric impact, if any, on the mother if the child is returned to the United States and she were to accompany the child? [The mother] does not wish to return to the United States where she feels there would be a lack of support for her and what is likely to be two children. However, she is not currently suffering from a mental health condition and given that she does not appear to have suffered from a definite mental health condition during her adult years, it is not impossible, but unlikely, that her mental state would deteriorate to such an extent that she would be diagnosed with a formal mental illness. She will, however, find this move to be very stressful. Specifically, please comment on what effect, if any, such a return might have on her parenting ability? I have expressed the view that whilst it is not impossible, it is unlikely that [the mother] would develop a formal mental illness on return to the United States. If this occurred, she would be able to access treatment to deal with her symptoms and it would be highly unlikely that she would deteriorate to such an extent that there would be a significant impact on her ability to care for one or two children.”
[61]No request was made on behalf of the mother to cross-examine Dr McClintock so as to challenge his evidence. In the light of this unchallenged report, and in particular Dr McClintock’s conclusions that it is “unlikely” that mother’s mental state would deteriorate to the extent that she would be diagnosed with a formal mental illness and that even if she were, it is “highly unlikely” that she would deteriorate to such an extent that there would be a significant impact on her ability to care for HG, there is no basis for me to find that there is a “grave risk” that a return would expose HG to physical or psychological harm or otherwise place him in an intolerable situation on this ground.[62]The position is the same in relation to Mr Shama’s second ground. The court has the benefit of a report from Mr Daniel F Albert, a US Immigration Attorney who considers the risk of the mother and HG being separated at the US border, with HG being admitted as a US citizen and the mother being refused entry. He describes this risk as “highly unlikely” and explains:(1) The risk of the mother being refused entry to the US is low providing she presents her unexpired Advance Parole and evidence of her pending Green Card application;(2) Entry under an Advance Parole is discretionary, but routine approval is the norm when documents are valid and no independent grounds of inadmissibility exist. No such grounds appear in the evidence provided to Mr Albert.(3) Travelling with a US citizen child is common and does not increase the risk of a refusal.(4) The risks can be ameliorated by presenting various documents identified by Mr Albert. He advises that if any secondary inspection occurs, which is standard for Advance Parole cases, the mother can request to speak to a supervisor. Refusal would be exceptional and would require affirmative evidence of inadmissibility or fraud not apparent here.[63]Thus whilst the risk of a refusal of entry of the mother to the USA cannot be wholly excluded, I am satisfied that it is “highly unlikely” to come to pass and this ground, that HG would be at risk of grave harm through separation from the mother, is not made out.[64]Even if such a situation did occur, Mr Albert’s evidence is that HG would be placed in his father’s care. Whilst HG has spent relatively little time with his father over the past year, and there has been no face to face contact since these proceedings began, he is not an unfamiliar figure, with the parents and HG going on three holidays together over the past twelve months. In such circumstances, even if HG did end in his father’s care, I am not satisfied that this ground is made out either.[65]Mr Shama also points to the disputes between the parties and to the fact that the father has admitted physical abuse of the mother. The specific incident in question (which is the only allegation of physical abuse made by the mother) relates to the incident in November 2024 when the mother says that the father twisted her ear and hit the back of her head with an open palm. The father admits squeezing the mother’s ear. Whilst this behaviour (and I am not in a position to make any findings as to the detail of this incident) is clearly to be deprecated, I consider that even taken at its highest it falls significantly short of establishing that HG is at any real risk of harm on a return, let alone at a grave risk. Nor do I consider the allegation that the father called the UK police on two occasions when arguing with the mother adds weight to this ground.[66]Moreover, even considering these three grounds cumulatively, I do not consider that the mother has made out the Art 13b defence.[67]The father has offered a number of what are described in his witness statement as “protective measures” but which Mr Crosthwaite describes as being in reality “soft-landing provisions”. I remind myself that in this regard I am primarily concerned in looking at the position that will apply for the relatively short period until the matter can be brought before the court in Texas.[68]The father proposes that the mother and HG should return to live with him in the family home, and offers to pay her $15,000 whether or not she lives with him. I note that the rent on the family home is $1,385 per month, and I am prepared to assume that the mother (who is clear that she does not wish to return to live with the father) could accommodate herself for a similar monthly rent. I would however, also invite the father to consider offering to move out of the family home and accommodate himself elsewhere instead to enable it to be available for the mother and child, given that he will be absent for work for much of the time in any event. I recognise that this may require a proportionate reduction in the lump sum being made available to the mother. The mother has asked for her accommodation to be funded for a 12 month period. I do not consider this request to be reasonable.[69]The father has also offered the mother access to his credit card for a period of 6 months up to a limit of $2,000 per month. The mother seeks access to cash in that amount rather than credit, and I consider that her position in that regard is reasonable. Mr Crosthwaite indicated that the father would be willing to do this.[70]The father has agreed for the mother to have access to a car, and for her, HG and the unborn baby to have access to health insurance through his work. He also offers an undertaking (on a no admissions basis) not to harass, intimidate, threaten, use violence or threaten violence against the mother. He will also pay for the flights, not travel with them if the mother does not wish him to, and will not make any civil or criminal complaints in the USA.[71]I am satisfied that these proposed measures will provide the necessary “soft landing” for the mother and HG in the USA. Neither party has sought to introduce evidence of whether these measures could be the subject of a “mirror order” in Texas, although it seems to me probable that they can be. In any event, the father has provided evidence of funds in excess of $36,000 which I am satisfied means that he is in a position to provide the financial support offered, and I am entitled to assume that the courts and authorities in Texas will be astute to protect the child should any issues arise there.[72]In the circumstances I will order the return of the child to Texas forthwith and hear the parties on the precise terms of the order that I should make.

Addendum

[73]The above judgment was delivered orally on 3 June 2026 from a prepared draft that required only typographical corrections. I therefore informed counsel that it would not be necessary to obtain a formal transcript of the judgment and that I would instead circulate the corrected judgment in a form suitable for publication.[74]Following the delivery of the judgment both counsel asked me to deal with some additional matters and I gave a further brief reasons which I now reduce to writing.[75]Mr Crosthwaite asked me to make mention of the various matters of video evidence that had been placed before the court. I viewed the totality of three video clips which were taken by the father showing an argument with the mother and maternal grandmother. I also viewed those parts of the disclosed police body worn camera footage that I had been asked to watch (being the initial discussions that the various police officers had with each parent). Whilst I took this evidence into account in reaching my conclusions set out above, I did not consider it to be a sufficiently important feature of the case to make express reference to it within my judgment.[76]Mr Shama, in seeking permission to appeal my order identified certain matters that he considered that I had not dealt with in my judgment and with which I was invited to deal. These were as follows:(1) He argued that I had failed to address his alternative argument under Art 13b that the child was also at grave risk of being exposed to physical or psychological harm or an otherwise intolerable situation by virtue of the psychological control that the father was seeking to exert over the mother; for example, by seeking to assert that they remained in a relationship. In this context Mr Shama also made reference to the father’s proposals that the mother and HG should move back into the family home with him, and to his proposal that the mother’s monthly allowance should be provided through his credit card.(2) He also argued that I had failed to consider the effectiveness of the father’s proposed protective measures or his willingness to comply with the same.(3) Finally, he argued that in the absence of whether a mirror order could be obtained in Texas, I had not considered adjourning to enable such evidence to be obtained.[77]So far as the issue of psychological control is concerned, I am not satisfied, even taking the mother’s case at its highest, that this would expose HG to the necessary grave risk of harm for an Art 13b defence to be made out. As I have made clear in the judgment, I considered that the father’s soft-landing provisions needed to be modified, to remove the sort of control that Mr Shama has expressed concern about, and in the light of my judgment the father confirmed that he would provide separate accommodation for the mother and child (either through the $15,000 lump sum or by moving out of the matrimonial home) and has agreed to pay a monthly allowance of $2,000 rather than giving the mother access to his credit card. More generally, though, when assessing an Art 13b defence the court needs to look at how the alleged conduct is said to pose a grave risk to the child in question. HG is not yet two years old, so the conduct identified by Mr Shama will not affect him directly. Rather Mr Shama seeks to argue that the alleged conduct will impact on the mother’s psychological health and thus her ability to parent HG and thereby expose him to a grave risk of harm. I consider this argument to be, in essence, the same as Mr Shama’s first limb under Art 13b, which for the reasons set out at [60] and [61] is not supported by Dr McClintock’s report. I therefore make clear that this additional issue, whether taken alone or cumulatively with the mother’s other Art 13b arguments does not alter my conclusion that her Art 13b defence fails.[78]Second, I do not accept that I have failed to consider the effectiveness of the father’s protective measures or soft-landing provisions, which are to be backed by formal undertakings to the court. As I explain at paragraph 71 of the judgment, I have seen evidence that the father has the funds that he has promised to pay to the mother, and following further argument from the parties I have provided for some $7,500 of the proffered lump sum to be paid in advance of the child’s return to the USA. I have taken into account the likelihood that the father will abide by the promises that he is making to the court (something I consider that he is likely to do). I have also (again as explained at paragraph [71]) taken into account that there are police, courts and child protection services in Texas who will also be able to assist.[79]Finally, I did not consider it necessary to adjourn for further evidence to be adduced on the enforceability of measures in Texas (and I did not understand Mr Shama in his final submissions to be arguing that this was a course of action that I was required to follow). The parties had previously considered whether such evidence was required and had concluded that it was not. Specifically, the order of Morgan J dated 23 April 2026 recited that the mother was intending to make a Part 25 application for a US expert to comment on the availability and enforceability of protective measures in the state of Texas. She did not subsequently make such an application, presumably having concluded that such evidence was not necessary. In those circumstances, I do not consider that it is now open to the mother to argue, following the final hearing, that such evidence was necessary after all. In any event, for the reasons set out above, I have dismissed the mother’s Art 13b defence and in the light of that decision I do not consider that there was any reason for me to adjourn in order for such evidence to be obtained.

Cited in 1 later judgment