No: FD25P00282 - [2025] EWHC 2144 (Fam)

It is common ground that when the mother and B travelled to England on 2 September 2024 they did so (a) with the father’s consent and (b) for a limited period of time. Although no return air ticket had been purchased or express date for return had been set, the father’s evidence is that they had agreed that the mother and child would be in England for about a month. The mother’s evidence was that they had agreed a longer period of time – she suggested a couple of months in her oral evidence.

In any event, towards the end of September 2024, the mother clearly formed an intention that she did not wish for her and B to return to New Zealand for the time being and this was communicated to the father.

I do not have a complete set of the conversations and messages that passed between the parents. There is no contemporaneous record of their telephone conversations at this stage. I also have an incomplete set of the Facebook messenger text messages that passed between them at this stage as, in about February 2025, the father sought to delete the text conversations that had taken place. Many messages have survived as the mother had taken contemporaneous screenshots of a large number of text messages that the parties exchanged. Ms More O’Ferrall sought to criticise the mother for this, suggesting that she had sought to compile a selective set of messages, supportive of her case. This was denied by the mother, and I do not consider this criticism to be fair. Ultimately, it was the father who chose to delete the messages, and he did so at a time when he was starting to contemplate bringing proceedings under the Convention. I do not consider that the father can now complain that the record of messages is incomplete, when it was his own actions, taken at a time when the proceedings were within his contemplation that has led to this state of affairs.

As I have already mentioned, towards the end of September 2024, the mother clearly formed an intention that she did not wish for her and B to return to New Zealand for the time being. This is apparent from a set of messages that were exchanged between 26 and 28 September. The mother’s initial statement to the father is not recorded, but his reaction is, and it is clear that he had been told that the mother and B were not planning to return to New Zealand within the time frame that the parties had previously agreed for the mother’s trip. Thus the set of messages begin with comments from the father such as:

“I trusted you to come back… You destroyed my trust in you and your family… You promised me day one you’d never cut me out of his life…Please come home”.

The father’s reaction to the news that the mother was not intending to return to New Zealand as originally planned was clearly an emotional and angry one. He sent her a picture of a mug that he had broken, made unpleasant and hurtful comments about the mother’s parents (including her father who had died in 2017) and talked about stripping down their car and house. The mother sought to make clear that she was not saying that she would not necessarily return, but that at this stage she was considering her options. The father however, continued to send pictures of the mother’s possessions which he indicated that he was throwing them out. These included a picture of a broken glass and a picture of a fire in a woodburning stove with the comment “Reckon I could keep this going all day on your stuff alone”. In his oral evidence the father explained that he had wanted the mother to believe that he was damaging or destroying her property, but that in reality only some paperwork was burnt.

During this period the father also sent the mother a message with a screenshot of a website from the New Zealand Ministry of Justice website entitled “Return a child to or from Aotearoa New Zealand” with the message “There are still moves that I can make”, and in cross-examination the father accepted that he was aware that if the parents were unable to reach an agreement between themselves that there was a legal route that he could adopt, although he was not aware of the intricacies of the 1980 Convention.

Something then happened. There is a break in the messages of a few days, and the mother’s case is that after she had provided the father with some space to calm down, they were able to have a telephone discussion in which it was agreed that the mother and B would remain in the UK; it being envisaged that the father would make arrangements to join them at a later date. The father’s case is that he never agreed to B staying in the UK and that he was emotional and deeply distressed during this period and his messages need to be read in that context.

By 4 October the father was messaging the mother in the following terms:

“I’ve calculated a few paths and what I’m proposing works better for you and [B]. He inherits the house. You get what you want. I accept my fate and move on.” And

“The suns been shining. The birds been singing. I’ve had a chance to replenish. Think things over. Promise no hate. We just do what needs to be for [B’s] sake… I promise I will set this up to rent for the new year. It’s his future. I want nothing in return.”.

The reference to rent is to the family home in New Zealand being rented out. The following day he messaged:

“You staying in England and renting this place for [B’s] future 100% is happening. Wheels are in motion. At some point I’ll discuss what I’m doing… But I think you and I are done at this point and if I did come to England it would be to be by him I’d only stay with you to start with so I can establish myself. But there would be no hate. Just move forward for [B’s] sake”.

The next day he messaged about a collection of photos he was getting rid of.

On 22 October the mother messaged that she considered that staying in England was best for B, and the father indicated that he would be staying in New Zealand. He stated:

“You keep the boy I keep the house we go on separately. No hard feelings. You’re welcome to come back and be a family of course. But I’m not coming. Should you chose to stay. Lawyers agreement gets put in place around house and we communicate only in regards to house through email. I won’t be part of [B’s] life unless he seeks me out later in life.”

On 28 October the father messaged “I want separation. I hope this was all worth it for you. You have been a massive disappointment to me. Good luck for the future.”

On 7 November the mother provided the father with some updates about her and B’s life in England. She told him that she had some UK job interviews coming up and that as her New Zealand employer would not agree to continued remote working, she would be resigning from that job at the end of the week. She also indicated that she had some properties to view and that she had two daycare / preschools lined up for B which she would be viewing the following week.

On 9 November the father messaged:

“Do you want me to move to England and stay married? “

To which the mother replied:

“I want to give it our best shot if we can. But we have a lot to work on. I worry that you will come here with anger and I don’t want that for [B], or for me.”

On 20 November the mother told the father that she had been offered a job interview, to which he replied “That’s great news. Well done”. He wished her good luck and commented that their future depended on it. The following day, after the mother had been offered the job, he replied: “Congratulations on the job. Moving forward.” He also made comments about saving for a visa.

On 22 November the father texted the mother about the sale of various of their possessions in New Zealand including her work desk and B’s child seat and on 2 December the mother transferred some money to the father which he indicated he would use to obtain a passport. On 4 December the father messaged: “I’m leaning towards wait a year and it sets us up over there. Its our original plan. We do everything on our end to make visa happen.”. Other exchanges around this time show that the parents were looking at the cost of the father obtaining a family visa.

By January 2025 discussions had become more fraught and the father was messaging that if the mother would not speak to him then he would “start plan b”. The mother responded stating that “…since agreeing that we would stay here, I’ve got a job (a good job), I’ve got our son enrolled at school, I’ve secured us a home, I’ve furnished that home… Nothing I have done has been opposed to what we have agreed.” The father does not appear to have challenged the mother’s view that there had been an agreement that she and B would stay in England.

A few days later, the father asked whether they were separated and then stated that he would be “moving forward as separated” and in a separate message stated “Clearly you don’t care and our marriage is done”.

Matters then seemed to have improved and a few days later, the father sought to make a fresh start in messaging and explained that he had agreed a rent of $700per month for their New Zealand property, and then referred to him “walking away from everything”. I understand that around this time, the father moved for work from New Zealand’s North Island, where they had lived as a family, to the South Island.

Then on 3 March, the father changed tack and sent a message “None of this is acceptable. I want my son home”. On 13 March, the mother asked the father why he had deleted the messages and stated “If you put in a false claim that you didn’t agree, then we will end up wasting so much energy and money on legal proceedings…”. By 21 March, the father was stating “Court proceedings are happening…”

By this point, the mother had decided to record some of the telephone calls that she was having with the father. This was done without the father’s knowledge and I treat the transcripts of these calls with some caution as both parents would have known that court proceedings were a possibility.

I have given less weight to the telephone conversations and to the messages from March 2025 onwards. They clearly took place within the matrix of intended proceedings, and although there are references in the transcripts to the father having agreed to the mother and B remaining in England he does not unequivocally say that this was an unconditional agreement unconnected to his own future.

A further issue arises from more recent messages about contact between the father and B. The father complains that the mother has sought to deny him contact; the mother’s position is that he was not respecting the arrangements that had been agreed. More recently, contact has been conducted pursuant to the terms of a court order.