ZE23P01539 - [2025] EWHC 1403 (Fam)

The bones of the background to this matter are as follows. E is 48, F is 46. They are in a settled relationship and have been for some time. They married after the birth of AB in March 2024. E is self-employed but looking to return to employment. He works in learning and culture in the arts. E is from Country L, a jurisdiction which has ratified and brought into force the 1980 Hague Convention. He was born in City M, and he has family in Country N, a jurisdiction which has ratified and brought into force the 1980 Hague Convention. F works as a teacher. F is from Scotland. The applicants live in London Borough J.

G is aged 40. She was born in Country R, a jurisdiction which (a) applies sharia law and where homosexuality and adultery are illegal; and (b) is not party to the 1980 Hague Convention. She claimed asylum in this country in 2013 because of persecution she feared in Country R arising from her sexuality. (She had previously lived here from 2008 to 2011 while in higher education.) She has had British citizenship since 2021. She told me in her first statement that she does not identify as a lesbian but has relationships with men and women. In her most recent statement, she tells me that she is straight. In her oral evidence she told me that she hoped to marry a Muslim man. She does not work. She lives in London Borough P.

In 2021 an agreement was reached that (at least) the first applicant and respondent would have a child together. They had met each other through a mutual friend, a woman known to the first applicant as part of the LGBT community and who was a partner, when they first met, of the respondent. (The first applicant was in fact legally married to another woman, but he had separated from her sometime ago and was in a relationship with the second applicant at this time.) The first applicant provided some semen, and the respondent inseminated herself and became pregnant. The applicants say that this was a three-way agreement. The respondent says it was not at first, because the second applicant initially wanted to be an uncle rather than a father. She says as time went on, and while she was pregnant, his position changed, and he wanted to be a father too. A written document was produced while the respondent was pregnant. This is in the second applicant’s handwriting. It is an informal document. From that document it appears that all three were to be considered as parents to the child. There is controversy about this document which I shall deal with later.

Early during the pregnancy, the applicants and respondent staged a fake Muslim wedding to deceive the respondent’s family in Country R. The first applicant was the groom, and the second applicant was the Imam. It was communicated by Zoom to the respondent’s family in Country R.

In November 2022 AB was born. The second applicant was together with the respondent for the birth. Both applicants were with the respondent in a birthing room, but when the respondent needed to go to an operating theatre only one could accompany her, and it was the second applicant that did. AB’s birth was registered on the 24 November 2022. The first applicant is named as his father and thereby has parental responsibility. I have seen an email from the respondent of the 22 November to London Borough O Registrars asking for both applicants to be legal parents. This was unable to be accommodated. AB’s surname, by agreement, was C-D. This combined the names of the two applicants. I have seen a contemporary WhatsApp message that indicated that the respondent was also intending to change her surname to C-D.

After giving birth, the respondent had members of her family come to help her. Her sisters disapproved of the LGBT lifestyle of the applicants. The relationship between the respondent and the applicants became strained. The respondent took the child to Country R in January 2023 and returned with him in April 2023. The applicants consented to that trip understanding that the mother was struggling with postpartum depression and seasonal affective disorder (neither condition has been medically diagnosed) but it is accepted by all that the return was later than originally agreed.

Notably the respondent on her return made clear to the applicants that she needed more help looking after AB. What she wanted was more, the applicants say, than they could provide given their employment.

In October 2023 the first applicant made a reference to social services raising concerns that the respondent had threatened to go to Country R with AB, and that she was struggling to manage the child. The local authority actioned this by some ‘Early Help’.

The applicants brought an application in December 2023 for a prohibited steps order to stop the respondent taking AB to Country R which has led from the magistrates, via a recorder, and HHJ Suh in East London, to hearings before Peel J, Sir Jonathan Cohen, and Harrison J to this hearing before me. I shall not rehearse each of the hearings that has taken place.

In February 2024 the first applicant made a further reference to social services with concerns about the mother’s mental health. Again, there was ‘Early Help’ and no concerns were identified by the local authority.

In March 2024 the applicants got married in Scotland. (The first applicant having amicably divorced his wife by then.) A court application was taken out by the applicants because the respondent did not want AB to attend. However, at court she agreed that she would take AB to the wedding.

A report was provided by Cafcass under s. 7 of the Children Act on the 18 September 2024. The author of that report, Ms Macalla Hurley, went on maternity leave, and due to the additional complexity of the issues that had by then arisen, Sir Jonathan Cohen directed on the 20 December 2024 that a Guardian be appointed for the child and that has led to Ms Callaghan’s appointment from the High Court Cafcass team and her report of the 21 March 2025.

There have been expert reports from Dr S relating to the law of Country R, and Law Firm T in relation to immigration issues in Country R. The potential issue between the experts had been resolved, it was thought, and neither were required to give evidence orally to me. There was at the start of this hearing, following an application to admit fresh evidence in relation to a surety being proposed by the respondent to reassure the applicants as to a trip to Country R (which statement I refused), an application to put further written questions to Dr S. I gave permission to put those questions, which then had to be redirected to Mr U of Law Firm T, given the constraints of time. They were answered by email.

Further, in October 2024 the respondent went to AB’s GP to raise concerns about inappropriate touching of AB by the second applicant. The GP was not concerned but passed the issue on to the local authority, as a matter of procedural requirement. The respondent followed up that reference with the local authority when the email from the GP went astray. They identified no concerns.

Further still in April 2025 the respondent again went to AB’s GP with concerns about scratches by his testes. That has caused the GP to again refer matters onto the local authority. I am told that she made no allegations of inappropriate sexual behaviour.