Building the case – practical steps when mental health is raised

Step 1: Raise the issue early

As soon as a solicitor becomes aware that their client’s mental health may impact their ability to parent or cope with return, they must flag it at the earliest opportunity.

This may be in:

• A case summary submitted before the first directions hearing;
• The skeleton argument for the Case Management Hearing;
• Or a position statement setting out the basis of the intended defence.

Waiting too long risks undermining the argument, especially where the proceedings are time-sensitive.

Step 2: Apply for expert evidence – Part 25 FPR

The most effective way to substantiate a mental health-based defence is via a Part 25 application under the Family Procedure Rules.

This allows the court to authorise an independent psychiatric assessment of the respondent.

Your application should include:

• The proposed expert’s name, CV, and terms;
• A clear list of questions for the expert;
• An explanation of why the evidence is necessary and proportionate.

The psychiatric report should answer questions such as:

• What is the respondent’s diagnosis?
• What is the likely impact of return on their condition?
• How does their condition affect their ability to care for the child?
• Are appropriate services available in the requesting country?

Step 3: Collect supporting material

In addition to expert evidence, you should gather as much corroborative material as possible:

• GP or mental health practitioner letters;
• Prescription records;
• Hospital discharge notes;
• Statements from friends/family;
• Any involvement from local authorities or domestic abuse services.

The purpose is to show that the mental health condition is real, current, and serious – not simply raised for tactical purposes.

Step 4: Act quickly

Hague proceedings move fast. Courts expect compliance with timetables and will not accept late applications unless delay is clearly justified. It is vital to:

• Request permission for expert evidence early;
• Comply with court timetables;
• Communicate proactively with the other side.

Conclusion

A mental health defence is only as strong as the evidence supporting it. That means early identification, decisive action, and high-quality expert input. In our next article, we will explore how courts weigh the presence of protective measures and how respondents can challenge them when they are not adequate.

Family Law experts

Georgina Emerson, Senior Associate Solicitor, heads the London Family team. A Resolution Accredited Specialist in child abduction and complex matrimonial finance, she specialises in international child abduction and relocation cases.

Recognised in Chambers UK 2025 as an “Associate to Watch,” Georgina is praised for her measured, tactically astute approach and strong strategic insight.