Consent Before Birth Allowed for Child Relocation
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Kesha Pabari
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High Court confirms consent to child relocation can be given prior to birth
The High Court has recently clarified an important point in international child abduction law, confirming that consent to a child’s relocation can be given before the child is born, provided that consent remains operative at the time of the child’s removal.
In T v S [2025] EWHC 3581 (Fam), a case in which Kesha Pabari, a specialist international child abduction lawyer at Osbornes Law, acted for the respondent mother, the court refused a father’s application for the summary return of an infant to New Zealand following the mother’s return to England with the child shortly after the child’s birth.
The decision provides helpful clarification on how the courts approach consent under the Hague Convention on the civil aspects of international child abduction.
Background
The parents had been living together in New Zealand but their relationship broke down during the mother’s pregnancy.
Shortly after the child was born, the mother returned to England with the baby to be close to her family. The father subsequently applied to the High Court for the child’s summary return to New Zealand under the Hague Convention.
The mother opposed the application, relying on two defences under the Convention:
- Article 13(a): the father had consented to the child relocating to England
- Article 13(b): returning the child would expose the child to a grave risk of harm.
Consent given during pregnancy
One of the key issues in the case was whether consent to relocation can be given before a child is born.
The father argued that any discussions about relocation that took place during pregnancy should not count as consent. The court rejected that argument.
The court confirmed that there is no requirement for consent to be given after a child is born. The important question is whether consent was clear, unequivocal and still in place when the child was removed.
The judge emphasised that parents often discuss arrangements for a child before birth, particularly when a relationship is breaking down. Those discussions may therefore amount to valid consent for the purposes of Article 13(a).
After reviewing messages and conversations between the parents, the court found that the father had repeatedly indicated that the mother was free to return to England with the child, and that he had not withdrawn that consent before she left New Zealand.
The Court’s decision
The court refused the father’s application for the child’s return.
In addition to finding that the father had consented to the relocation, the court also accepted that returning the child to New Zealand could expose the child to a grave risk of harm, taking into account evidence about the mother’s mental health and allegations of domestic abuse.
This case is significant because there has been very little authority on whether consent to relocation can be given before a child is born.
International child abduction advice
International child abduction cases and relocation cases can be legally complex and extremely stressful for families. Obtaining early specialist advice is crucial. The family law team at Osbornes Law has extensive experience advising parents in international children cases. If you need legal advice, please contact us by:
- completing our online enquiry form;
- or calling us on 020 7485 8811
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Tom Trim is noted for his work on public law cases concerning serious allegations of child neglect, harm and abuse. He can also advise on adoption proceedings.
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Bridget Thompson is a public law specialist noted for her extensive practice in matters involving alternative families and adoption. An interviewee observes: "She's a fighter, she's clever, and she understands all aspects of a case."
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