A recently reported case, T v S [2025] EWHC 3581 (Fam) , concerned a Hague Convention child abduction application in which the father sought the return of a newborn child to New Zealand after the mother returned to England shortly after the child’s birth. The mother resisted return relying on defences that the father had consented to the relocation and that the return would expose the child to a grave risk of harm. The father argued that any consent given during pregnancy should be treated with caution or disregarded entirely.
Key Issue for Determination
The key question was whether a parent can give valid consent to relocation before the child is born. Mrs Justice Harris in the High Court refused the return order confirming that pre-birth consent can be valid as there is no rule that consent must be given after birth. The key question is whether consent was clear, unequivocal and operative at the time of removal.
Issues considered by the Court
The Court looked at the realities of the interactions between the parents rather than a strict contractual test of consent. Evidence provided, including messages and recordings, showed the father had repeatedly agreed the mother could return to England and had not withdrawn consent. There was also evidence of domestic abuse and the impact on the mother’s mental health supported a finding that return would create a grave risk of harm or an intolerable situation for the child.
The case confirms that consent under the Hague Convention can be given before birth. It also emphasises a practical, fact-sensitive approach to consent and reinforces that domestic abuse and parental wellbeing can ground a successful defence.
Obligations and Responsibilities Prior to Birth
The case highlights the legal intricacies of parental responsibility and a parents rights and obligations before a child is born. It is important to consult with legal professionals and seek legal advice to fully comprehend and navigate these complex issues especially if issues or disagreements arise during the pregnancy.
For further information on parental responsibility for unborn children see Parental responsibility before a child is born | Weightmans or contact our child law solicitors.
