An interesting issue arose in the recent High Court decision T v S [2025] EWHC 3581 (Fam), a case in which I acted for the respondent mother: can consent to a child’s relocation be given before the child is born?
The case concerned a return application under the Hague Convention on the Civil Aspects of International Child Abduction. The father sought the summary return of an infant to New Zealand after the mother returned to England with the child shortly after the child’s birth.
The mother opposed the application, relying on the defences under Article 13(a) (consent) and Article 13(b) (grave risk of harm).
The consent question
One argument raised on behalf of the father was that any consent expressed during pregnancy should be treated with caution, or disregarded entirely, because the child had not yet been born.
The High Court rejected that submission.
At paragraph 26 of the judgment, Mrs Justice Harris confirmed that there is no authority suggesting consent must be given after birth. The critical question is whether consent was clear, unequivocal and operative at the time of removal.
The judge emphasised something that will feel familiar to many practitioners: parents often discuss arrangements for a child before birth, particularly where relationships are breaking down. Those discussions may therefore carry real legal weight in the context of Article 13(a).
Looking at the realities of family life
The decision is also a reminder of the approach the courts take when considering consent in Hague cases. The analysis is not contractual or overly formalistic. Instead, the court looks carefully at the realities of the conversations between the parents.
In this case, the court reviewed recordings and messages between the parties and concluded that the father had repeatedly indicated that the mother was free to return to England with the child. Importantly, that consent had not been withdrawn prior to the mother’s departure.
The wider context
The court also accepted the mother’s Article 13(b) defence, relying on evidence concerning domestic abuse and the likely impact on the mother’s mental health if she were required to return to New Zealand without support.
Taken together, the court concluded that the child would face a grave risk of harm or an intolerable situation if returned.
Why the case is interesting
While the decision turned heavily on its facts, it provides useful clarification on a point that has received relatively little attention in case law.
It will be interesting to see whether the issue of pre-birth consent arises more frequently in future Hague Convention cases.
Kesha Pabari, senior associate, Osbornes
