G v K

These proceedings concern one child, namely P, born on [date redacted], who is therefore aged [age redacted] old. I shall refer to P as “the child” in this judgment.

G is the child’s mother and is the applicant in these proceedings. K is the child’s father and the respondent. I shall refer to them as “the mother” and “the father”, or collectively as “the parents”, in this judgment. The parents were married in the United Kingdom (“UK”) in 2021. It therefore follows that they share Parental Responsibility in relation to the child.

The mother seeks the child’s summary return to Japan pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Convention”) enacted via the Child Abduction and Custody Act 1985. The father has defended that application. For the avoidance of any doubt, no alternative application has been pursued on behalf of the mother at the hearing as potentially indicated in the Form C66 application [7/510].

The final hearing took place on 23 and 24 September 2025. Due to additional time taken in submissions, for which no direct or indirect criticism is intended, it became necessary for the court to find further time to reflect, draft and to remotely hand down this written judgment.

The mother’s case, in a little more detail, may be set out as follows: She primarily asserts that the child has been habitually resident in Japan since her birth in that country. On her case, various “visits” by the child to England (and other countries) have not interrupted her status. She submits by way of her leading counsel’s opening written argument, and amplified in the course of the hearing, that the father wrongfully retained the child in England within the meaning of the Convention on a date between c18/6/25 and 24/6/25 at the latest. The mother also resists the father’s Article 13(b) defence. That said, the mother does agree, if successful, to abide by a number of undertakings relating to the child’s ‘landing’ in Japan in any event.

In outline, the father in response submits through his leading counsel that the child has, in fact, been habitually resident in England and Wales since shortly after first travelling to this country in November 2022 and that therefore there has been no wrongful retention of her by him at any point. In the alternative, if that primary case fails, he submits that, in accordance with Article 13(b) of the Convention, if the child is returned to Japan, there is a grave risk that this would expose her to physical or psychological harm or otherwise place her in an intolerable situation. He seeks rather more elaborate undertakings than those offered by the mother.

I was sent an electronic bundle comprising 510 pages in advance of the hearing. I have also been provided with the following: (a) 3 audio tapes; (b) counsels’ skeleton arguments; (c) the child’s English medical records; (d) a bundle comprising 14 pages of email communication relating to the mother’s employment application in 2024 and (e) a bundle of authorities. There were some further documents submitted which, with the exception of the applicant’s (non-agreed) chronology, I did not read as there were issues between the parties’ representatives due to the lateness of filing of these documents.

It was agreed at the Bar that it was unnecessary for the court to hear any oral evidence in order for this application to be determined. I endorsed that position at the outset of the hearing, which then proceeded by way of oral submissions.

The following is a short summary of the relevant and well-established legal principles that relate to the determination of the issues raised in this case.

I begin by noting that the Convention can be deployed when a child has been wrongfully removed or wrongfully retained by a taking parent from a left behind parent. Article 3 of the Convention sets out the following:

“The removal or the retention of a child is to be considered wrongful where-

a)

it is in breach of rights of custody attributed to a person, institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b)

at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention”.

A removal or retention of a child will be wrongful for the purposes of Article 3 of the Convention if it is in breach of rights of custody and those rights of custody were being exercised at the time of the removal or retention. I note that no issue as to rights of custody has been raised in this case.

A removal or retention will only be wrongful for the purposes of Article 3 of the Convention if, immediately prior to the retention or removal of the child, that child was habitually resident in the state from which the removal or retention took place. As indicated earlier, habitual residence is one of the key issues raised in this case.

It is part of the mother’s case that there was a repudiatory or pre-emptive breach by the father when he refused on or around 18/6/25 to agree to allow the child to leave this jurisdiction for Japan with the mother or, in the alternative, when he applied for orders under the Children Act 1989 (“CA89”) on 24/6/25.

I was taken by Mr Gration KC to Re C (Repudiatory breach) [2018] UKSC 8, [2019] AC 1 where the Supreme Court considered the issue of whether it is possible for a wrongful retention to occur prior to the end of an agreed period during which the child was due to be in the requested state. Lord Hughes who gave the judgment of the majority which states as follows:

“43.

When the left-behind parent agrees to the child travelling abroad, he is exercising, not abandoning, his rights of custody. Those rights of custody include the right to be party to any arrangement as to which country the child is to live in. It is not accurate to say that he gives up a right to veto the child’s movements abroad; he exercises that right by permitting such movement on terms. He has agreed to the travel only on terms that the stay is to be temporary and the child will be returned as agreed. So long as the travelling parent honours the temporary nature of the stay abroad, he is not infringing the left-behind parent’s rights of custody. But once he repudiates the agreement, and keeps the child without the intention to return, and denying the temporary nature of the stay, his retention is no longer on the terms agreed. It amounts to a claim to unilateral decision where the child shall live. It repudiates the rights of custody of the left-behind parent, and becomes wrongful.

44.

The plain purpose of the Abduction Convention is to prevent the travelling parent from pre-empting the left-behind parent. The travelling parent who repudiates the temporary nature of the stay and sets about making it indefinite, often putting down the child’s roots in the destination State with a view to making it impossible to move him home, is engaging in precisely such an act of pre-emption

45.

It is possible that there might also be other cases of pre-emptive denial of the rights of custody of the left-behind parent, outside simple refusal to recognise the duty to return on the due date. It is not, however, necessary in the present case to attempt to foresee such eventualities, or to consider whether fundamental failures to observe conditions as to the care or upbringing of the child might amount to such pre-emptive denial. It is enough to say that if there is a pre-emptive denial it would be inconsistent with the aim of the Abduction Convention to provide a swift, prompt and summary remedy designed to restore the status quo ante to insist that the left-behind parent wait until the aeroplane lands on the due date, without the child disembarking, before any complaint can be made about such infringement.

46.

It is no doubt true that a travelling parent might change his mind after an act of repudiation. But so he might after a failure to return on the due date, and commonly does when faced by notice of the provisions of the Abduction Convention, or by an application under it. So also he might, after making an unsanctioned move to an unagreed country, or after embarking on an unsanctioned programme of religious conversion. The possibility of a change of heart is no reason not to recognise that the heart needs changing if rights of custody in the left-behind parent are to be respected. On the contrary, the desirability of inducing a prompt change of mind is an argument for recognising a repudiatory retention when and if it occurs. Proof that it has occurred is a matter of evidence, and what manifestation of it must be demonstrated is considered below”.

Reference to some potential ‘markers’ indicating retention were listed later in the same judgment as follows:

“51.

As with any matter of proof or evidence, it would be unwise to attempt any exhaustive definition. The question is whether the travelling parent has manifested a denial, or repudiation, of the rights of the left-behind parent. Some markers can, however, be put in place.

(i)

It is difficult if not impossible to imagine a repudiatory retention which does not involve a subjective intention on the part of the travelling parent not to return the child (or not to honour some other fundamental part of the arrangement). The spectre advanced of a parent being found to have committed a repudiatory retention innocently, for example by making an application for temporary permission to reside in the destination State, is illusory.

(ii)

A purely internal unmanifested thought on the part of the travelling parent ought properly to be regarded as at most a plan to commit a repudiatory retention and not itself to constitute such. If it is purely internal, it will probably not come to light in any event, but even supposing that subsequently it were to do so, there must be an objectively identifiable act or acts of repudiation before the retention can be said to be wrongful. That is so in the case of ordinary retention, and must be so also in the case of repudiatory retention.

(iii)

That does not mean that the repudiation must be communicated to the left-behind parent. To require that would be to put too great a premium on concealment and deception. Plainly, some acts may amount to a repudiatory retention, even if concealed from the left-behind parent. A simple example might be arranging for permanent official permission to reside in the destination State and giving an undertaking that the intention was to remain permanently.

(iv)

There must accordingly be some objectively identifiable act or statement, or combination of such, which manifests the denial, or repudiation, of the rights of custody of the left-behind parent. A declaration of intent to a third party might suffice, but a privately formed decision would not, without more, do so.

(v)

There is no occasion to re-visit the decision of the House of Lords in In re H; In re S (para 28 above) that wrongful retention must be an identifiable event and cannot be regarded as a continuing process because of the need to count forward the 12-month period stipulated in article 12. That does not mean that the exact date has to be identifiable. It may be possible to say no more than that wrongful retention had clearly occurred not later than (say) the end of a particular month. If there is such an identifiable point, it is not possible to adopt the submission made to the Court of Appeal, that the left-behind parent may elect to treat as the date of wrongful retention either the date of manifestation of repudiation or the due date for return. It may of course be permissible for the left-behind parent to plead his case in the alternative, but that is a different thing. When once the actual date of wrongful retention is ascertained, the article 12 period begins to run.”

I was later also taken by Mr Gupta KC to two authorities for the father on this aspect of the case. I was firstly referred to JM v RM EWHC 315 (Fam) [2021] in relation to the need for a clear date for the basis of such a breach.

“31.

It seems to me that a wrongful act of retention, whether anticipatory/repudiatory v(i.e. happening before the due date for return), or actual (i.e. happening after the due date of return), requires there to be, as a matter of fact, a clearly agreed due date of return. I believe that every reported case about retention has involved a finite period away with a due date of return. In my opinion it is implicit in the concept of wrongful retention, as referred to in Articles 1, 3, 12, 13, 14, 15 and 16, that the wrongful act must take place within, or immediately following, an agreed finite period of care by the retaining parent.

32.

Let me test the correctness of the proposition in this way. Assume that on 26 February 2020 the mother and children travelled from Australia to England on return tickets but where the return flight was not specified but left open. Let us assume that the understanding between the parents was that the mother could go for as long as she wanted and could return when she felt comfortable to do so. Three months later she writes to the father saying that she would not return at all. Could this be a retention for the purposes of the Convention? Surely not.”

I was then taken to the judgment by Peel J in Z v Z [2023] EWHC 1673 (Fam) where he dealt with Mostyn J’s judgment at paragraph 15:

“15.Mostyn J in JM v RM [2021] EWHC 315 (Fam) referred to the need for “an agreed due date for return”. I do not read him as stating that there must in every case be fixed calendar dates. Each case must be judged on its specific facts. Thus, for example, rather than a specified calendar date, the agreed or anticipated date for return may be referable to an agreed crystallising or triggering event, the precise date of which is unknown to the parties at the time of departure. In this case the due date for return was at the conclusion of the treatment, the precise timing of which was unknown when they flew to England and, in the event, has not yet come to pass. But it seems to me that there must be some ingredient to indicate that the departure from one country to another is intended to be temporary rather than permanent or potentially permanent, even if the precise date of return is not fixed. Thus, it is hard to conceive of a wrongful retention where the departure from the outward country is agreed to be open ended with no determining or triggering event; I endorse the observations of Mostyn J at para 32. In each case, the court will have to do the best it can on the available information to determine the relevant date”.

The father denies any such breach in a number of respects. Whilst the father accepts that the proposal for the child to visit him from 28/4/25 was for a time limited period, and arguably inherently temporary within the meaning of Re C, he submits that there was no breach of any kind within the meaning of the Convention as the child was, on his case, habitually resident in England from c1/11/22 onwards. Secondly, he refers to mother’s solicitor’s reference as follows: “I am instructed that whilst in [England]the mother raised with the father the possibility of [the child] returning to Japan in July 2025 as had originally been planned, rather than September 2025” [40/510]. The submission is advanced that mother in this hearing has been seeking to move that date forward and that there was fluidity in the mother’s position.

Plainly a determination as to habitual residence is a key and linked component when considering any alleged actual or repudiatory breach. I therefore now turn to the principles relating to habitual residence. I start by referring to the source Convention provision within Article 4:

“The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years”.

I immediately digress to observe that there is plainly no issue arising in this case about the child’s age.

The following is a short collective and general summary drawn from the earlier authorities from A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2014] AC 1 , with some of my underlined emphasis:

My attention was drawn to an important recent authority in this area, namely Re F (A Child) (Habitual Residence) [2025] EWCA 911. I was referred to a number of passages within the judgment by Moylan LJ. I was firstly referred to paragraph 25:

“25.

The next paragraph in the judgment is significant because it misstates the approach the judge should have taken when determining the question of habitual residence:

“[51] In considering the mother’s case on Habitual Residence, I have been careful to avoid the trap of thinking of it in terms of whether [F] has lost her habitual residence in Colombia and considered instead whether the matters on which the mother places reliance are such that when I look at the degree and stability of her integration here I should conclude that [F] had not gained Habitual residence here.” (emphasis added)

This reflected what the judge had said, in paragraph 42 as quoted above, namely that F’s integration “here is what matters” (emphasis added). The judge appeared to consider that there was a “trap” to be avoided which required her to focus on F’s integration in England and whether she should conclude that F“ had not gained Habitual residence here”. This distorted the judge’s analysis, which required a balanced consideration of whether F was habitually resident in Colombia or England at the relevant time. Inevitably, this would involve a loss of one habitual residence and the acquisition of another so there is nothing wrong, and no trap, with the court considering it in such terms provided that the court does not unduly focus on one half of that equation and, as a result, does not conduct a balanced analysis of the relevant factors. In this case, in seeking to avoid a tilted analysis by asking merely whether F had lost her habitual residence in Colombia, the judge adopted an alternative tilted analysis by asking whether the mother could establish that F had not become habitually resident in England”

I was also taken to paragraph 40 and 41 in the same judgment, which deals with any burden in relation to habitual residence:

“40.

The judge stated that “the burden of establishing habitual residence in Colombia lies with the mother”. Although we heard no submissions on this issue, I address it briefly because it is possible that the judge’s reference to the burden being on the mother was one of the elements which led her to apply the wrong approach. In my view, it is not helpful to refer to the burden of proof in this context. I quote below what Baker LJ said in In re X (A Child) [2023] 4 WLR 46 (“Re X”) about it not being “simply … an adversarial issue”. This is because the court has to decide where the child was habitually resident at the relevant date to determine its jurisdiction and habitual residence does not have a default position in the absence of it being established. Each party will, if there is a dispute, inevitably be contending for different countries (or in unusual circumstances, one party might be contending that the child has no habitual residence) and the court will have to decide between them, applying an objective analysis”.

41.

As Baker LJ said in Re X, when addressing a submission as to the burden of proof under the 1980 Convention:

“[65] Mr Gration submitted that the structure of the Convention is that the burden of proving that there has been a wrongful removal or retention under article 3 lies on the applicant and, where established, the burden then shifts to the respondent to prove one of the defences under article 12 or 13. Habitual residence, however, is not a matter that arises simply as an adversarial issue on which the judge adjudicates between the parties’ respective arguments. The question of habitual residence goes to the heart of the court’s jurisdiction to order the child’s summary return under the Convention. Having identified the date on which the child was retained in this country, it was then necessary for the court to establish whether it had jurisdiction by examining the evidence to determine his habitual residence at that date.”

In Mr Gupta KC’s written submission (paragraph 19) he referred in the context of this point to “…the burden being incumbent upon [mother] her when issuing a 1980 Hague application…”. He did immediately qualify that submission by referring to Moylan LJ’s judgment in Re F. In the course of oral submissions, I understood that he accepted, albeit reluctantly, my summation of the position that it is for the court to ‘grapple’ with this issue absent a burden on either party.

I was then referred to paragraph 58 of the judgment, which follows an extensive review of the earlier authorities:

“58.

The determination of habitual residence is not a formulaic exercise because it requires a broad consideration of the child’s and the family’s circumstances and because different factors will be present in different cases with the same factor being more significant in one case than another. Accordingly, as was said in the case of HR, at [54], “guidance provided in the context of one case may be transposed to another case only with caution”. With those caveats, I set out the following elements (which are not intended to be exclusive) drawn from the cases:

(a)

“The identification of a child's habitual residence is overarchingly a question of fact”: Re B, at [46]. It is “focussed on the situation of the child”: Re A, at 54(v) and Re R, at [17]. It is an issue of fact which requires the court to undertake a sufficient global analysis of all the relevant factors. There is an open-ended, not a closed, list of potentially relevant factors;

(b)

As set out, for example, in Proceedings brought by HR, at [41]: “In addition to the physical presence of the child in the territory of a [member] state, other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent”

(c)

Factors of relevance, as set out in Proceedings brought by HR, at [43], and reflected in many other domestic cases, include: “the duration, regularity, conditions and reasons for the child’s stay in the territory of the different [member] states concerned, the place and conditions of the child’s attendance at school, and the family and social relationships of the child in those member states”;

(d)

The intentions of the parents are also a relevant factor and there is no “rule” that one parent cannot unilaterally change the habitual residence of a child: Re R, at [17];

(e)

As set out in Re R, at [16], it is “the stability of the residence that is important, not whether it is of a permanent character” but there “is no requirement that the child should have been resident in the country in question for a particular period of time” because habitual residence can be acquired quickly: e.g. A v A, at [44];

(f)

The “degree of integration of the child into a social and family environment in the country in question” is relevant, Re R, at [17]. It is clear that “full integration” is not required, “Re B (SC)”, at [39], but only a degree sufficient to support the conclusion, when added to the other relevant factors, that the child is habitually resident in the relevant state;

(g)

The relevant factors will reflect the age of the child (see Mercredi v Chaffe [2012] Fam 22, at [53]-[55]; A v A, at [54(vi], and Re LC, at [35]). Accordingly, “The social and family environment of an infant or young child is shared with those (whether parents or others) on whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned”: Re A, at 54(vi);

(h)

The court is considering the connections between the child and the country or countries concerned: A v A, at [80(ii)]; Re B (SC), at [42]; and Proceedings brought by HR, at [43]. This is a comparative analysis as referred to, for example, in Re M, at [60]; Re B (EWCA), at [86]; and Re A, at [46]. As observed by Black LJ in Re J, I repeat:

“What is important is that the judge demonstrates sufficiently that he or she has had in mind the factors in the old and new lives of the child, and the family, which might have a bearing on this particular child's habitual residence.”

An example of this is seen in Re B (SC) in which Lord Wilson, at [49]-[50], referred to the factors which pointed to the child having “achieved the requisite degree of disengagement from her English environment” and those which pointed to the child having “achieved the requisite degree of integration in the environment in Pakistan”.

My attention was drawn by Mr Gration KC to some factual similarities in Re F with this case. I am cautious in doing so in view of the fact specific exercise that I have to discharge. In addition, this case is also to be distinguished from Re F by the contrasting extent to which this child has travelled internationally for stays in two countries for relatively long periods.

I was also taken by Mr Gupta KC to a number of specific authorities under this heading. In the context of the submission that, as a matter of fact, a short period of time can lead to the establishment of habitual residence, see judgment of Theis J in X v Y [2020] EWHC 1901 (Fam). A period of 3 months was sufficient to lead to the establishment of habitual residence in circumstances where the parental intentions were in a “state of flux” at the time of the removal from Australia to England.

I was also referred to the judgment of Cobb J (as he then was) in W and E (Habitual Residence) [2024] EWHC 2596 (Fam). In particular, I was referred to the section (paragraphs 42 to 49) of the judgment which outlines the various factual enquiries the court will take when it comes to considerations such as parental intention, registration with medical health services, education, nationality of children, integration with family members and friends.

I was then specifically referred to the judgment of Hayden J in Re B (A Child: Custody Rights, Habitual Residence) [2016] EWHC 2174 (Fam). I was drawn to the passage in the judgment which records that when the court is assessing whether a child has lost a pre-existing habitual residence, and gained a new one, the court must weigh up the degree of connection which the child had with the state in which he resided before the move.

The father seeks as part of his case to assert a defence in accordance with Article 13(b) of the Convention. Once again, I turn initially to the relevant source provision within the Article:

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:

(b)

there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence”.

Mr Gupta KC addressed me firstly in relation to this limb of the case in the light of the prevailing burden on his client. It is fair to comment that he acknowledged some limits to his ambition in relation to aspects of his case under this heading.

I was referred by him to Re E (Children) [2011] UKSC 27 and Re S (A Child) [2012] 2 AC 257, with reference to the following summary of the core principles arising:

I was taken to Re A-M (A Child : 1980 Hague Convention) [2021] EWCA Civ 998. When addressing risk, the Court must consider the ‘nature, detail and substance’ of the allegations made by the father in order to determine the maximum level of risk to the child. That will involve ’reasoned and reasonable assumptions’ about the level of risk.

The judgment of Moylan LJ in Re T (Abduction: Protective Measures: Agreement to Return) [2023] EWCA Civ 1415 also formed part of the father’s case. “Protective Measures need to be what they say they are, namely, protective. To be protective, they need to be effective”. The following summary was thereby drawn:

I was also referred by Mr Gupta KC to part of the speech by Baroness Hale in Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619:

“… Intolerable" is a strong word, but when applied to a child must mean "a situation which this particular child in these particular circumstances should not be expected to tolerate". It is, as article 13(b) makes clear, the return to the requesting state, rather than the enforced removal from the requested state, which must have this effect. Thus the English courts have sought to avoid placing the child in an intolerable situation by extracting undertakings from the applicant as to the conditions in which the child will live when he returns and by relying on the courts of the requesting State to protect him once he is there. In many cases this will be sufficient. But once again, the fact that this will usually be sufficient to avoid the risk does not mean that it will invariably be so. In Hague Convention cases within the European Union, article 11.4 of the Brussels II Revised Regulation (Council Regulation (EC) No 2201/2003) expressly provides that a court cannot refuse to return a child on the basis of Article 13(b) "if it is established that adequate arrangements have been made to secure the protection of the child after his or her return". Thus it has to be shown that those arrangements will be effective to secure the protection of the child. With the best will in the world, this will not always be the case. No-one intended that an instrument designed to secure the protection of children from the harmful effects of international child abduction should itself be turned into an instrument of harm”.

After being reminded of the meaning of domestic abuse within The Domestic Abuse Act 2021, I was referred to Re H-N [2021] EWCA Civ 448 which noted that two of the harmful consequences of domestic abuse are as follows: It causes the victim to be so frightened of provoking an outburst / reaction that they are unable to give priority to the needs of the child and it creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child.

I was invited to put this into the context of a Convention case and have regard to the judgment of Hale LJ (as she then was) in TB v JB (Abduction: Grave Risk of Harm) [2000] EWCA Civ 337; [2001] 2 FLR 515 at paragraph 44:

“It is important to remember that the risks in question are those faced by the children, not by the parent. But those risks may be quite different depending upon whether they are returning to the home country where the primary carer is the ‘left-behind’ parent or whether they are returning to a home country where their primary carer will herself face severe difficulties in providing properly for their needs. Primary carers who have fled from abuse and maltreatment should not be expected to go back to it, if this will have a seriously detrimental effect upon the children. We are now more conscious of the effects of such treatment, not only on the immediate victims but also on the children who witness it.”

In short, where the defence under Article 13(b) is said to be based on the anxieties of a parent about a return with the child which are not based upon objective risk but are nevertheless of such intensity as to be likely, in the event of a return, to destabilise that parent’s parenting of the child to a point where the child’s situation would become intolerable, in principle, such anxieties can found the defence under Article 13(b).

I also note that the court must remember that it is evaluating whether there is a grave risk based on the allegations relied on by the taking / retaining parent as a whole and not individually. There may be distinct strands which have to be analysed separately but it is important not to overlook the need to consider the cumulative effect of those allegations for the purpose of evaluating the nature and level of any grave risk that might potentially be established as well as the protective measures available to address such risk.

The father submits, in part by reference to the expert’s report, to which I will turn later, that separation of the child from him in the circumstances of this case alone would be sufficient to establish grave risk. I was referred to Re S [2023] EWHC 2717 (Fam) in that respect. The point was also emphasised that Japan is not a 1996 Hague Convention signatory state.

The submission was advanced that the court should be cautious about considering any return and that protective measures would not be sufficient in this case. The point was taken that there is ‘known unknown’ about Japan and the uncertainty about what would happen there, whereas in England the court knows precisely how issues relating to safeguarding and domestic abuse will be considered. If the court refuses the return application, then of course all is not over for the mother. In the context of this point I was taken to the judgment by Judd J in D v E [2025] EWHC 1172 (Fam) at paragraph 71:

“I wish to make it clear that I have made this decision within the context of summary proceedings pursuant to the 1980 Convention. The evidence has not been tested before me and I have made no findings of fact… The fact that I have not ordered that O should return pursuant to the Convention does not mean that the [home] courts cannot exercise jurisdiction to make welfare decisions about O should they see fit, and nothing I have said in this judgment is intended to discourage them from doing so”

In Mr Gration KC’s skeleton argument I was invited to review the judgment of Harrison J (albeit then sitting as a Deputy) in X (Children) (Abduction: Grave Risk: Child’s Objections) [2022] EWCA Civ 1171, [2023] Fam 77 for a helpful digest of the core principles. I have done so.

The point is emphasised in the response on behalf of the mother that there are disputed allegations between the parties. The mother also alleges that she too has been the victim of domestic abuse by the father.

In relation to the father’s allegations against the mother, emphasis is placed on the point that the majority of them concern alleged threats made by her in respect of the father’s involvement in the child’s parenting which, it is submitted, cannot be said ‘to go to’ the Article 13b defence. The point is taken that the father, by contrast that, he was contending for shared parenting with the mother until shortly before the issue of this application. My attention, to which I will return, was also drawn to the outcome of the social services assessment further in this regard.

Mr Gration KC also took the court to paragraph 69 of the Guide to Good Practice Under the 1980 Convention in response to the father’s submission as to the (lack) of realistic prospects for him in any litigation in Japan in relation to whether this gives rise to an Article 13(b) defence:

“iii.

Lack of effective access to justice in the State of habitual residence

The taking parent may assert, for example, that he or she is unwilling to return to the State of habitual residence because he or she cannot afford legal representation, that the courts in that State are biased, or that there are barriers to access to a court for custody proceedings.

If there is concern that the taking parent will not have effective access to justice, the court may consider coordinating with the relevant Central Authorities or using direct judicial communications to evaluate these claims and / or make arrangements, if possible, to facilitate access to court proceedings soon after return. The mere fact that the parent may be unable to afford legal representation has been found to be insufficient to establish lack of effective access to justice. In any case, the Convention being based on mutual trust between States, the evaluations in return proceedings should not compare the relative quality of judicial systems in both States (e.g., as to the speed of proceedings).”

The submission was made that it would plainly undermine the aims and objectives, as well as the practical functioning of the Convention, were the courts of the requested State to engage in a critical assessment of the laws and processes adopted by the courts of the requesting State. I was invited, for impact, to reflect on this point from the opposite perspective. The English court would be unhappy if this exercise were to be conducted in Japan and a decision not to return made on the basis of perceptions of gender bias (or any other basis) within the court process in England and Wales.

The submission continued that there is a formal relationship between England and Japan as a consequence of the Convention. The principle of mutual trust and comity, which underpins that relationship, would be damaged were the court to engage in critical evaluation of how the father is likely to fare in proceedings in Japan.

In relation to the measures proposed by the father relating to any return, if relevant, it is submitted that they go far beyond what is appropriate. It is said that they, taken together, are not protective measures, in reality.

Finally, I was taken to Re M (Abduction: Zimbabwe) [2007] UKHL 55, [2008] 1 AC 1288 in the event I am satisfied that the court’s discretion is engaged. Discretion is at large. This submission was made without prejudice to the overarching submission that the exercise of discretion is not reached as the father cannot establish the Article 13(b) defence either at all, or when his allegations are considered alongside the available protective measures. However, I note that where the court has concluded that the harm exception is made out, it would ordinarily not be appropriate to exercise the discretion in favour of a return order.

The mother is a Japanese Citizen, who currently lives in Japan. Whilst she has previously applied for a spousal visa [122/510] she has not yet attained leave to remain in the UK. The father is a British Citizen, who lives in [England]. He has not acquired any immigration status in Japan. The child has dual nationality [6/510]. It follows that she has an equal right to remain in each country.

In the light of the very detailed submissions before me, it is necessary for me to devote some considerable attention to this section of the judgment, which will later assist, in part, in informing my determination. The result is that the judgment is, consequentially, longer than ideally would have been required.

The mother was born in Japan on [date]. She had something of an international upbringing, with periods of time spent by her in both USA and Australia. She is currently, by profession, [profession / employment redacted] in Japan .

The father was born on [date] and was raised in England. The father is, by profession, [profession / employment redacted].

The parties met in [date]. They became engaged in [date]. They then married on [date]. The letter from mother’s mother (the “maternal grandmother”) [69/510; 194-/510] with some concerns about her at the time seemingly did not overly trouble the father. The mother travelled to [England] in [date] [39/510] on a partner’s visa [209/510] to marry. According to the father, she moved a number of her possessions to England shortly thereafter [62/510]. They purchased, in father’s sole name, the English family home, a flat, in September 2021 [60/510].

Following their marriage, the parents entered into a post nuptial agreement on 26/2/21 [125/510] having each received separate legal advice. Whilst the main focus of the written agreement related to the parents’ financial circumstances and commitments to one another, there was also reference to any future child/ren. I refer in greater detail to the agreement later in this judgment.

The mother conceived her pregnancy in [date] 2021. The pregnancy was planned. She was living in England with the father at that time. However, one of the three audio recordings sent to me related to an argument between the parents when she was pregnant in January 2022. I return to this incident as well later in the judgment.

The mother travelled back to Japan in March 2022 [39/510]. The child was born in Japan on [date]. The father had travelled to Japan on 26/6/22 [210/510] and was present with mother at the time of her birth. The child was registered as a resident of [a city in Japan] in July 2022 [231/510]. The parents stayed together with the maternal grandmother at the time. The mother’s grandparents also lived nearby in part of the same complex.

I will deal with the detail of the general monitoring of the child’s health and development later in this judgment. At this point I merely note that the child underwent the usual post natal checks in Japan, where she was also registered for various medical services [280/510].

The father returned to England on 21/8/22 [210/510] but returned in October 2022. He became registered as a resident in Japan in November 2022 [62/510]. On father’s case, this was resorted to as a precaution in case of any renewed Covid 19 travel restrictions, rather than an indication of his future plans on his part.

On 1/11/22 the mother travelled with the child from Japan to England [210/510]. At this point I digress to copy into this judgment a schedule provided by the mother [253/510] of the child’s movements between England, Japan and other countries, which also sets out the core care giver arrangements during these periods. The father produced a similar schedule. It was confirmed in the course of the hearing, as expected in view of the fairly basic factual nature of the contents (which is plainly capable of verification by reference to travel documents) that there were no material differences between the two schedules, save that the father’s schedule extends beyond 30/6/25. I adopt the mother’s schedule for convenience only:

I will deal separately later with my analysis of the spread of the child’s time over this period. That said, I am now going to reflect on some significant events and other aspects relating to her life and respective connections to England and Japan from this chronology.

In relation to the provision for the child’s health needs in England, I note that she was registered with the father’s General Practitioner (“GP”) medical practice on 14/11/22 shortly after her first arrival in England.

There is also evidence before the court that the mother was closely connected with the family home in England in 2022/23, see Council Tax documentation from March 2022 (for year 22/23) [118/510] and March 2023 (for year 23/24) [119/510] respectively.

The child was also enrolled in a nursery some 10 minutes from the England home in April 2023 [60/510; 102/510]. She was then enrolled in a local government funded nursery in Japan in July 2023 [39/510; 210/510; 270-/510]. The mother later opened a bank account for the child in Japan on 11/10/23 [233/510].

In term of the parents’ relationship more generally, it would appear that their life as a couple was going well in 2023 into 2024. They seemingly renewed their commitment to one another in a wedding ceremony held in Japan. There are references to various dates in the documents before me, namely 2022 [409/510], November 2023 [39/510; 420/510] and December 2023 [209/510]. The likely correct date, on all the information before me, is probably late 2023.

In December 2023, the father says [61/510] that the mother was granted a further 2½ year extension to her spousal visa, adding “…. meaning we were halfway to her Indefinite Leave to Remain visa”. The mother also confirms the application at that time [210/510]. I digress to comment that there is no evidence before me of the father pursuing a similar application in Japan. The only application by him was seemingly to be a resident between 2022 and 2024.

In January 2024, the mother applied for her current position in Japan. In the additional bundle of e mails submitted to the court in the course of the hearing, it is clear that the father was supportive of the application [472/510]. On 19/2/24 the mother travelled with the child to Japan to attend her interview. She was offered her current role in February 2024 [211/510]. She took up the post in May 2024.

It would then appear that the parents were going to purchase a property in Japan in the course of 2024 after she took up her position. The court has been referred to some of their communication about this plan [212-/510; 254/510].

It appears to be common ground that there was then a serious deterioration in the parents’ relationship in late 2024 [198/510]. The father states that that, from December 2024, “the co-parenting” plan broke down and the mother began to ask him to visit the child in Japan [62/510]. That said, there was an agreement between the parties for the child to spend Christmas in 2024 in England. This is reflected within the above schedule. The mother and the child travelled to England and stayed at the home between 2/12/24 and 13/1/25.

There appears to have been a serious argument during this period on 3/1/25 between the parents [471/510]. During the argument, the father alleges that the mother made threats to burn his clothes and produced a lighter. The facts are in issue. The mother has described the context to the argument [218/510; 284/510]. Notwithstanding this incident, even on father’s case, the mother and the child were able to return to Japan on 13/1/25.

The mother then purchased a property in her sole name in February 2025. There are issues between the parties as to this aspect of their financial arrangements. The mother contends that the father could not be named on the Japanese equivalent of the Land Register in relation to this property as he could not borrow money on a mortgage as a foreign national. The father denies that this is an accurate explanation for this unilateral property purchase. However, I note that the father has been to the apartment [420/510]. In any event, the child moved to live at the new property for a few weeks before she travelled to England earlier this year. There are pictures of the child’s bedroom. I note that this property has not figured significantly in her life. She may not now have any recollection of it.

The father alleges [471/510] that in March 2025 the mother told him that she was unable to cope with solo parenting the child and that she “needed space from [the child]”. The mother denies this. He alleges that he was concerned about her safety. He contends that he told the mother he was happy to ‘solo parent’ her.

On 25/3/25 further arrangements were made for the child to travel to England. The original plan was for the child to remain in England from 28/4/25 to 9/7/25 [40/510; 208/510]. The father was due to return with her and to remain in Japan until 30/7/25 [51/510]. There is evidence before the court as to the airline ticket purchased [47/510; 296/510] for this trip. The child duly arrived with the father in England on 28/4/25. The mother remained in Japan. I digress to note how the father referred to the plan in his statement in support of his application to the [redacted] Family Court (“FC”) [484/510] which gave the impression of the trip always extending to 13/9/25. This was also his account to social services [409/510].

Furthermore, whilst I do not over interpret the precise terminology deployed, I do pause to note that the father puts it in this way in his statement [67/510]: “…[the child] has quickly and comfortably settled back into her UK life” (my emphasis).

It would then appear that on 18/5/25, on father’s case [66/510], or perhaps even earlier in 2025 [293/510; 409/510], he formed the view that the mother was having an affair. He had access to her ChatGPT account, which I confess was new to me. This was explained to me as effectively analogous to one person having remote access to another person’s internet search history. I was taken to screen shots [80-/510] where the mother appears to ask for advice about separating and was indicating an “affair partner”. I pause there again. There is an issue as to whether the father ‘hacked’ mother’s account or whether he had consensual access. I am not in a position to determine that issue, nor the underlying allegation of an affair. Nonetheless, it is clear that this information clearly upset the father. He says in terms “…this upset me greatly” [66/510] The mother alleges that the father became abusive towards her as a result and called her a “slut” and other offensive terms. On the father’s evidence he asserts “from that point there was no jointly agreed plan for [P]’s residence or future care…” [66/510].

On 1/6/25 the mother informed the father that she would be travelling to England on 16/6/25. On 2/6/25 she contends that she thought she would experience difficulties in arranging childcare for the child in Japan [52/510; 171/510; 218/510]. Therefore, she sought to extend the child’s stay in England until 13/9/25. The mother contends that she telephoned father to notify him of this further change on 5/6/25. He called her back. She contends he was hostile. He accused her of having an affair.

I note that the father has referred to the mother’s actions about changing the date of the child’s return as an “… absence of collaboration” [66/510]. Whilst it was indeed seemingly unilateral, his account is curious. In a sense this change was to his benefit. Indeed, as indicated earlier, later in his own statement he refers to an agreement between them that she would stay with him until 13/9/25 [68/510].

By 5/6/25 the mother had seemingly resolved her childcare issues. She contends that she had become aware of her own father’s terminal cancer diagnosis. It is agreed that she then sought to revert to an earlier July return date for the child. There was a ‘distance’ argument between them on that date as the mother was in Japan. I take the following from the father’s later CA89 application [448/510] (my emphasis): “Matters escalated on Thursday 5 June 2025 during a telephone argument. During this call, the respondent mother was confronted by the applicant father about an affair and she stated that she intended to kill herself. Further, she has sought to unilaterally change the immediate contact arrangements. The child has been in the applicant father's care since 28 April 2025, when he collected her from Japan. [The child] was due to be with the applicant father until 16 September 2025 and spend the holidays with the father and paternal family in England”. The father alleges that mother made other threats to self harm on this day [70/510].

I pause there to comment that this must have been a very difficult time for both parents. They were facing up to the end of a relationship to which they had both been very committed so recently before.

On 10/6/25 the father instructed his present solicitors. This decision by him was not disclosed to the mother at the time. He reported to social services that when mother arrived “…he was hoping that this would be an opportunity for them to engage with mediation and come up with a written agreement regarding 50-50 care”.

On 16/6/25 the mother duly arrived in England [219/510]. She stayed at the family home with the father and the child. All was seemingly well initially. The father later referred to “two good days “ initially to social services [409/510]. The mother asked the father whether the child could return to Japan sooner than rearranged for 13/9/25. The father refused mother’s request. The mother says that she was distressed by his objection. The father then left a message for the mother on 17/6/25 [219/510] forewarning her that she would receive a letter from his solicitors. That was a reference to a letter dated 17/6/25.

The solicitors letter dated 17/6/25 must, on all the evidence before me, have duly arrived with the mother on 18/6/25. The letter stated, inter alia, that the relationship had broken down and that the father sought “similar amount of time” with the child for the “benefit from two different cultural experiences by living in both England and Japan”. The father had also placed the child’s passports with them [298/510]. I digress to note that there was no mention of the initial proposed earlier return of the child in July to Japan [497/510]. Indeed, it asserted in the letter that “…[the child] should be remaining with him in [England] during the summer holidays as was always envisaged”.

The letter also proposed “shuttle mediation” [498/510]. The letter also adds “… Pending resolution of this matter I have asked [K] to bring [the child’s] passports to my office for safekeeping. This is a very standard step in children cases and please be assured that I will not be releasing them to [K] without your consent”. Whilst the assertion about the ‘standard’ nature of that step may indeed be correct, the reality is that the father would plainly have had no problem at all with the passports being retained by a third party as the child was in England. By comparison, the implications for the mother from her perception, no matter how this point was presented, would have been very different. This was reflected in her follow up communication [500/510] to his solicitor.

Whilst the mother did initially agree to mediation [499/510] she contends that this was based on father first regaining the child’s passports [219/510]. In the event this mediation did not take place. Instead, there was then an extremely concerning incident at the family home on 18/6/25. This was the second audio recording submitted to me on behalf of the father. The parents had an argument. The failed reference to mediation formed part of the context to this incident. The mother was holding a knife. She held the knife towards father and told him that he may as well kill her. He referred to her as a “psycho” [205/510] at one point. There were other alleged abusive comments and threats by mother later in the evening [71-/510]. Mother sets out her different version of the context [220/510]. The child became involved at one stage. I will deal with this incident in more detail later. I will make such findings or comments that are open to me on the documentation, and without forensic exploration of the issues, in relation to this incident later in this judgment.

A further troubling incident occurred the next day i.e. 19/6/25. The background to this incident, on the father’s case, is that earlier that day he became aware the mother searched on ChatGPT for evidence she would need to report domestic violence to the UK police [125-126; 200/510; 220/510]. I digress to note that it follows he was still seemingly accessing her account at that time. In the course of the argument the mother asked the father whether he had retrieved the child’s passport from the solicitors. There was a further argument which was audio recorded by the father on 18/6/25. This was the third audio recording sent to me. The mother says she fainted and hit her head during the wider incident. The father asserts that this fall was ‘staged’. The mother called the police [405-/510]. In fact, the mother was arrested when they arrived, seemingly after father played the second audio recording to them. She was later bailed on conditions relating to the father and the child [300-/510]. Once again, I will return to this incident in more detail later in my judgment.

There was an inevitable safeguarding referral by the police to the relevant Children Services section of the relevant council on 23/6/25 [407/510] as the child had been present. An arrangement was put in place for the mother’s contact with the child to be supervised pending a strategy meeting [409/510] and an assessment.

On 23/6/23 the father issued a divorce application [41/510] (not in the bundle). Then on 24/6/25 he applied for CA89 orders in relation to the child at the FC [437/510]. Shortly thereafter on 30/6/25 [3-/510] the mother submitted her application under the Convention. I will also deal with this litigation history separately later.

On 5/7/25 the mother was able to have supervised contact with the child. Further supervised contact took place on 8/7/25, 13/7/25 and 16/7/25 [425-/510]. The records resulting from that contact make for positive reading. On 21/7/25 there was a further very important development in terms of contact in that father agreed for some unsupervised contact between the mother and the child.

The directions hearing before Judd J took place on 22/7/25. Again I deal with the outcome of that hearing in the next section of the judgment. Further unsupervised contact was ordered, by agreement, by the court at this hearing.

On 31/7/25 the mother returned to Japan. She had exceeded the permitted period for her to work remotely from England by her employers. She started to see a psychologist on her return [221/510] albeit, on her case, due to the alleged abuse she has sustained from the father.

On 11/8/25 the relevant Children Services department completed its Child and Family Assessment [407-/510] and filed its report and accompanying records. It is common ground that, following their assessment, no further action was taken and the case is now closed. The police confirmed a no further action (or “NFA”) outcome on 5/9/25.

The mother returned again to England on 20/9/25. There has been some further direct contact arranged for her since her return. On 17/7/25 the parents attended mediation, which was sadly unsuccessful. She is currently due to return to Japan on 6/10/25.

As indicated above, the father issued his CA89 application on 24/6/25 [437-/510] along with a Form C1A [468-/510]. Those acting for the father set out their instructions as to the recent history of the parties’ relationship and his alleged concerns [448/510] expressing further concern that the mother would remove the child to Japan and that he would not see her again. The application referred, in particular, to the events on 18/6/25 and 19/6/25, the mother’s arrest and her bail situation. There was also reference to the ‘invite’ to her to attend mediation. He sought diverse orders [451/510] including an interim ‘Lives With’ order. He sought an urgent on notice hearing within 24 hours. The application was to be sent to the mother at 7am the next day.

I also digress to note the father’s reference to the England family home (my emphasis) as “…the respondent is currently staying at the applicant’s property (which the applicant and child have temporarily moved out of) [459/510].

The CA89 application was duly sent to the mother at 7.02 am on 25/6/25. The application was listed later that day before DJ [redacted] [503-/510] at the FC. A prohibited steps order was made to prevent the mother removing the child from father’s care and from the jurisdiction. This was expressed to be “until further order”. The father sought, but was not granted, an interim ‘Lives With’ order at the hearing [506/510]. A separate order provided for a FHDRA on 10/9/25 [508/510].

Once again as indicated earlier, the mother’s Form C66 application was issued on 30/6/25. The mother’s application was listed before Judd J on 22/7/25 [27-/510]. The first point of note is that the father applied at that hearing for the summary dismissal of this application. That application by the father was itself summarily dismissed [27/510]. The basis of that application by father was explored at this hearing. Those acting for mother contend that this was thinly disguised tactical manoeuvring / ‘gameplaying’. It is understood that those acting for father at the time contended that the time for the child to return to Japan had not passed. Those acting for the mother also contend that he declined to confirm when asked whether he would return the child in September 2025. The father also referred, and did so once again at this hearing, to his dismissal application being deployed at that time to save on further costs as he is paying privately. His costs by that hearing alone (involving other leading counsel) exceeded £40k.

Whilst I do not feel able to make a definitive finding as to the issues raised before me as to father’s motivation at that time, I do note that, on any view, the time for the child to have returned to Japan in September 2025 has now certainly passed and that she still remains in the jurisdiction of England and Wales .

In addition to the ‘usual’ case management directions that this court would expect to see at such a hearing, the court also ordered, inter alia, the following: (a) a port alert; (b) third party disclosure from the police and social services and (c) a report from an expert in Japanese family law. The court also set aside part of the FC’s CA89 order, making alternative orders to ensure that the child was not removed from the jurisdiction and accepted undertakings from the mother about travel documents [35/510]. The court also ordered further unsupervised direct contact for the mother. This final hearing was also listed at that time.

The proceedings at the FC were later stayed by the same district judge on 3/7/25 as a result [510/510] of this application by mother and Judd J’s order.

I remind myself again that I have not heard any oral evidence. However, in my judgment, I am in a position to make some preliminary findings, or comments, further informed by reviewing the oral submissions advanced in the light of the written evidence before me. I have listened again to the three audio recording, and re-read large sections of the core bundle. These findings will, in part, help to inform my ultimate determination.

I certainly have no hesitation in accepting the submission that the court is concerned with talented, intelligent, professional and highly literate individuals.

It is also clear that the parents have lived in recent years an international lifestyle. The child has, by association, also done so during her short life to date. The above-mentioned schedule of her movements is reflective of this point and is an important overarching feature of this case.

It follows from the above schedule that each parent has significant experience of living in the other parent’s country of origin. This case is therefore to be distinguished from those cases where one parent has met the other parent in this country but has gained no personal experience of the other parent’s country.

Whilst pre-nuptial agreements are becoming a regular feature of many peoples’ life choices in association with committed relationships, post nuptial agreements, in my experience at least, are less usual.

I have considered with care the document [125/510]. It is very detailed. Whilst it is correct to say that the real focus of the agreement relates to the parents’ finances, there is indeed provision for any future children, see section F [129/510] and section 9 [137/510]. Section G(d) [130/510] is particularly significant in that it records as follows: “This Agreement was entered into on the mutual understanding that in the event there is a Child (or children) of the Parties, [G], [K] and any Child of the Parties will live in England, unless otherwise agreed between the Parties”. The agreement also records the mother’s intention at the time to relocate to England, see section D [128/520] with reference to “…permanently relocate” in section G(c) [129/510].

I firstly accept the submission that this agreement is reflective of the parents’ level of sophistication that I have summarised above. That said, it was accepted on behalf of the father by Mr Gupta KC that this agreement is in no way determinative of the issue before me relating to habitual residence. It is reflective of the parents’ intentions at the time the agreement was settled. It is also of some significance, in my judgment, that this recording of the parties’ intentions predates the child’s conception and birth.

The consequential submission advanced on behalf of the father is that this aspect of the way the parents managed their affairs earlier in their relationship makes it unlikely, if not unconceivable, that they would not reflect a change in their intentions in a similar such document. I have considered that submission with care. However, it is correct to note that father himself refers in his evidence, on his case, to a change to co parenting: “….our agreed international co-parenting plan broke down between the coparenting two countries” [61/510]. It is clear that this change to “international co-parenting” was, on his own case, a change in their intentions which had not been reflected in a formal legal agreement with the benefit of legal advice. I digress to note that it would also appear that the proposed financial arrangements in relation to ownership of the flat were also not fully implemented in accordance with the agreement.

Before I deal with the recording, I pause to make some general cautionary comments about audio evidence. I firstly caution myself that such evidence may be selective from the person conducting the recording and that important parts of the surrounding context may be missing. I also remind myself that the person recording the exchange knows that s/he is being recorded. I also specially remind myself, in this case, that mother’s first language is not English.

Turning to the incident, the father has referred to what happened in his case in various sources, including in the Form C1A [470]. He alleged that mother “…threatened to go back to Japan and take our unborn child with her (she was 3 months pregnant with [the child] at this point). She told me that because of Japan’s sole custody laws, she could stop me from ever seeing [the child] or meeting her. During this period she also threatened to call the police and say that I hit her. She acknowledged it was not true, but said she could still do it. I have never forgotten this incident because firstly of how chilling the threat to call the police was, and secondly because this was the first time that she used our child against me in arguments, even though [the child] had not been born yet”.

I have listened to the recording. It lasts 16.16 minutes. The mother does indeed threaten to make allegations against him to the police. Whilst there is no transcript, I did discern her saying about an allegation that “I can prove it even though you didn’t do it”. The father refers in the exchange to being attacked by mother. She denied doing so. She alleged that the father talked in a “horrible” way to her and treated her like a “servant”. He denied doing so. She wanted him to leave. He offered to sleep on the sofa. He referred to her“…pulling the pregnancy card” about the proposed sleeping arrangements. For the avoidance of doubt, I did not discern any reference to potential court proceedings in Japan in the recording sent to me. The mother has set out her version of the wider context.

This was plainly an unpleasant argument. I am driven to comment that it seems unusual that the father sought at the time to record the exchange at that stage in their relationship. He says he kept the recording because of the above referenced “chilling” effect. I see the force in that point.

Turning to the context, I remind myself that mother was, as indicated, pregnant at the time. Furthermore, and in any event, it seems that the argument did not seemingly have any lasting effect on the parents, as revealed by the subsequent events in their shared lives from 2022 to 2024 at least, together with the abundance of real affection between them in most of the subsequent electronic messages before me.

The father adds [470/510] that mother “…would threaten on at least 20 to 30 other occasions to take [the child] from me or control my access to her”. For the avoidance of any doubt, I have not been sent any further recordings, other than the three separately referenced in the judgment and have not heard the comment by mother repeated. However, it is correct that the mother accepts [198/510; 290/510] that she would refer to keeping the child, albeit in the context, on her case, of responding to like comments by the father.

Whilst such comments are, of course, concerning, it seems to me that I should actually focus on actions rather than words. The mother has not, in fact, impeded the child’s movements between England and Japan, notwithstanding the breaking down of the parental relationship from 2024 into 2025. Indeed, the child’s arrival in England on 28/4/25 is to be seen against the backdrop of the ongoing problems between the parents.

I have set out the ‘raw’ data of the child’s movements earlier. I immediately pause to reflect, having adopted the data from the schedule, that details as to the bare quantity of time that a child spends in ‘x’ country with ‘y/z’ parent is, in accordance with Re C, certainly not determinative as to the issue of habitual residence. The exercise confronting the court calls for a qualitative, rather than bare quantitative, assessment. However, it seems to me that the very international flavour of this child’s lived experience is relevant.

The data reveals that the child was in the mother’s sole care for 114 days in her first year of life. She was in the joint care of both parents for the remainder of that year, save for 4 days when she was in the father’s sole care. Whilst I do not wish in any way to undermine the father’s role in his child’s life, the mother was plainly the child’s overall primary carer giver during her first year of life.

During the child’s second year of life, whilst she was in her father’s sole care for more days (i.e. 41 days) she was also in her mother’s sole care for more of the time (i.e. 136 days). The child was in father’s sole care for less time in her third year of life (i.e.101 days) and less time in the care of both of them jointly. She was in mother’s sole care for 199 days in her third year of life.

On any view, the period between 19/2/24, when the mother travelled with the child to Japan from France, until 28/4/25 is very significant. The data reveals that the child was in mother’s care for 265 days over the period leading up to the really contentious time in the child’s life.

It seems to me that the second and third year of any child’s life are crucial in terms of that child’s development of his or her attachment with his or her parent/s or alternative primary care giver/s and their bond with the child.

As indicated earlier, the mother lived with the maternal grandmother during the time she was in Japan with the child until April 2025. I digress to observe, further to father’s case, that this apartment, if correct, does not appear to have been ideal in terms of space [149/510]. Nor was the property, in one sense, the child’s settled and lasting home. On the other hand it is continuity of carer/s that matters in the early years of a child’s life, rather than the physical home environment. I pause to reflect that the child must have spent a very considerable part of her life with the maternal grandmother, with every indication from the evidence including photographs, of an important attachment by the child to her.

In terms of the monitoring of the child’s health and general development, the records from Japan indicate after all the usual post natal check were conducted in Japan [280/510]. There were then fairly regular development check ups / other regular recordings of her development [274-/510], vaccinations [45-/510; 280/510] and other medical examinations / minor treatment by health professionals there during the period from mid 2023 to March 2025. I also note that she had regular annual dental check ups in 2023 [280/510], 2024 [280/510] and 2025 [281/510].

As indicated earlier, it is apparent from further medical records provided by the father in the course of the hearing (i.e. not in the bundle) that after the child was registered on 14/11/22, there is a reference therein to her being examined on 29/11/22, with various data recorded as to her general development at that point in time. There were also some sporadic visits for some immunisations and consultations in 2023 and 2024. I note that the GP records specifically record that other immunisations had been given to the child in Japan as referred to earlier. There were also some relatively limited number of other visits, and immunisations after the child arrived in England in April 2025. The English medical records also specifically confirm that there was no Personal Child Health Record (or ‘Red book’) for the child in England.

On my review of the medical records to date, it is clear that the child, over the period from her birth to April 2025 (save for the period from November 2022 until March 2023) had regular and entirely appropriate engagement, as necessary, with health professionals in Japan. She also had some appointments with the GP in England. However, the evidence before me of the chronological and contemporaneous charting (literally) of her childhood health and general development appears to have clearly taken place in Japan.

It is the mother’s unchallenged case that the child has remained continuously enrolled at the nursery in Japan, with government funding from the start. Again it was unchallenged that there has also been an ‘open’ or ongoing enrolment of her at that nursery since that time, albeit the parents have actually used that placement on a more ‘ad hoc’ basis during times when she was staying at the family home in England [102/510].

It is common ground that the father was supportive of the mother’s application for employment in Japan in early 2024. It is also accepted that this was going to be a permanent position that would involve the mother living in in Japan.

The parents exchanged e mails as to the contents of her covering letter or e mail supporting the application. This was in January 2024 [2/14]. I digress to comment that this does not sit entirely comfortably with the impression within the father’s evidence [61/510] “…However, when the Applicant went back to Japan on holiday in February 2024, she decided to interview for a demanding position ….. and was successful”.

I note that the father made a number of suggestions to mother in terms refining her application. He suggested in one e mail [2/14] that she should include the following: “I am Japanese native, where my career has been predominantly based, but have been living in the UK for the last 3 years with my husband and daughter (both British citizens)”. The mother framed this aspect [2/14] rather differently: “After marriage, I established a dual-residency lifestyle, ……making it my current base alongside Japan”. I was informed that the mother settled on the following in the final e mail for her application: “As a native Japanese professional who has spent the last three years living in the UK with my British husband and daughter, I bring a unique blend of cultural understanding and international experience”.

I also note that the father helped the mother with the preparation for her presentation that formed part of the selection process [10/14] in February 2024.

On any view, this recruitment exercise took place at a time when the parents remained in a committed relationship, with no ulterior motives on the part of either of in terms of any litigation. The e mail exchange appears to reflect a difference of perspective between them at the time as to mother’s circumstances over the preceding years. The father’s suggestion appears to have influenced the mother’s final drafting. However, I remind myself that the final version referred to above was submitted in an entirely different context.. In short, I draw no inference adverse to the mother’s case from this e mail exchange.

The father now contends that they hoped the mother’s role could “… lead to future work opportunities back in the UK, as she had previously been unable to find work in the UK”. This is denied by the mother. I have to say that I struggle to follow the logic and force of the father’s case in that regard.

I also note that father says [61/510] that at this time “…we agreed to an international co-parenting plan where [the child] would spend periods with each parent in both countries and we would try and spend as much time together as a family as possible”. He later adds “… We were able to successfully co-parent internationally between February 2024 and December 2024”. They were also exploring buying a property in Japan at this time.

I have set out the bare facts relating to this troubling incident earlier in my judgment. I listened to the recording, which lasts 10.17 minutes, made again by the father at the time.

The audio recording of this incident on 18/6/25 makes for very uncomfortable listening. The mother accepts that she was holding a knife and was asking the father to kill her repeatedly. She was plainly highly distressed. The father appeared to remain remarkably calm in the circumstances for most of the time. They make cross allegations during the incident. The father alleges that the mother made a number of other threats, including threats to destroy him. The child is present for a short part of the incident following father shouting “ get off me”. Mother said unhelpfully to her that “he shouted” meaning father.

I accept that this incident must have been a very challenging and frightening experience for the father. However, I also digress to record that the context to this incident is significant. The mother had recently arrived in England. She had recently been told, which was not challenged, that her own father had recently received a terminal cancer diagnosis. She refers to this diagnosis during the exchange. Her request to be able to return to Japan with the child earlier than the revised date in September, to enable the child to see her father, had been rebuffed from her perspective. She had also, unexpectedly, received a formal letter from the father’s solicitors who were already in possession of the child’s passports. She was effectively alone and very vulnerable.

Whilst mother’s actions, on her own case, were deeply troubling, in my judgment they must still be set in the particular, and no doubt bewildering, context of her being in a country that was not her home.

The father alleges that after a discussion about the passports and medication, the mother “hyperventilated” and alleged he “…was trying to destroy her”. She “fainted” to the floor. He says that “…I knew what she was planning and so tried to get a neighbour around to help”. She was seemingly unconscious on the floor over a 10 to 15 minutes. He says she woke up once she heard the friend, stumbled into the lounge and deliberately hit her head on the floor. She then got her phone and went into the garden. The police were called. He said that he feared false allegations were going to be made by her against him . The police arrived. The mother was arrested.

I have listened to this recording of part of the events that day 18/6/25, which lasted 17.07 minutes. It is clear from the recording that the child was present for part of this argument and was highly distressed. The recording makes for particularly difficult listening as a result. The mother alleges that the father was trying to get her arrested. She asserts that she is “scared” by the father.

The police record [405/510] in relation to this incident is very limited. The precise circumstances that led to the mother being arrested are not apparent on the limited documentation in the bundle. It appears that he shared the audio evidence with the police of the mother from the previous day. The police record concludes by indicating that a decision by the CPS was awaited.

As set out above, the father alleges that earlier he had established mother’s ‘research’ on ChatGPT about how to report allegations. However, even allowing for the comment she made in 2022, and other such comments, the ChatGPT reference is open to interpretation in a number of ways, including the father’s assertions and the actions of a genuine victim of abuse trying to gain an understanding of how to report abuse.

The mother refers to father’s litigation stance on habitual residence at the time of his CA89 application. His application [455/510] asserts: “The father is not sure whether the mother is likely to challenge jurisdiction. The child has spent considerable time in both England with the father alone as well as in Japan. The father believes England has jurisidiction due to the recent developments and child being due to live with the father until September 2025. The father reserves his right to fully advance his position.”.

Those acting for the mother submit that there is no unqualified assertion within the form that the child was habitually resident in England and Wales at that time. The father’s response is that he was merely setting out his case.

I am not satisfied that this is a materially significant feature of the evidence. It is implied in the form that the father’s case was that the child was habitually resident in England and Wales but anticipated that there may, as turned out to be so, counter arguments in that regard.

I therefore turn to set out my determination of this application and begin with the date of alleged wrongful retention. Whilst this aspect of the case is inextricably linked to the child’s habitual residence, I am satisfied that it is necessary to determine this issue at this point and then reflect on whether any retention was wrongful. I have already set out about the parents’ competing positions.

I accept the mother’s submission in relation to this aspect of the case. Whilst there was a change in the date of the proposed return of the child from 9/7/25 to 13/9/25, and a further attempt by mother to bring the return date forward again, there was, in fact, a fixed end date to the visit. In short, it is clear that this visit by the child was time limited and fundamentally temporary in nature. Indeed, the time limited nature of this visit was accepted on behalf of the father.

I also accept that there were no discussions by the parents about the imposition of any limit or qualification to the child’s return to Japan when she travelled to England to arrive on 28/4/25. I accept that the father was subjectively beginning to contemplate a pre-emptive retention of the child within the meaning of Re C, although he would plainly not have seen it in in such terms, from about the time he approached solicitors on 10/6/25, in part arising from his belief about the mother’s alleged affair which he had held for some weeks by then.

In my judgment the external objective conduct by the father seeking to give effect to that pre-emptive retention was probably when he instructed his solicitors to send the letter dated 17/6/25 to the mother, which she received the following day, with the reference therein to mediation and the placing with them of the child’s passports. I accept that these were pre-emptive impediments to the child’s return to Japan that had formed no part of the arrangements prior to the visit. Therefore, I accept the submission that the complete pre-emptive retention took place on or around 18/6/25.

I am also satisfied that the mother’s initial acceptance to attend mediation on 18/6/25, from which she then effectively withdrew, did not amount to a subsequent free and informed acceptance by her of the imposition of the impediment of mediation in the light of my finding as to the relevant prevailing context on 18/6/25.

In the event that I am wrong in alighting at 18/6/25, then the alternative date for pre-emptive retention must be 24/6/25 (or 25/6/25) when the father decided to apply for, and then file and serve at 7.02am, his CA89 application which sought, inter alia, an interim ‘Lives With’ order in his favour and which led to the court making a prohibited steps order until further order to prevent the child’s removal from the jurisdiction. Part of the outcome of the hearing on 25/6/25 was also the provision for a FHDRA. This set in train a court process that would ensure the child would not leave the jurisdiction by or on 13/9/25.

I am also satisfied that the court’s intervention, and the CA89 orders made on 25/6/25, did not act, as it were, as a supervening authorising event thereby placing the court’s imprimatur on the pre-emptive retention by the father. The court on 25/6/25 was plainly motivated to address the child’s safety and welfare in the light of the reported events that had taken place a few days earlier. However, the court effectively had only one side of the case at that time, without any opportunity to evaluate the competing positions of the parents.

I have borne in mind the father’s contention that the issue of the CA89 application was motivated by his concern for the child’s welfare due to the mother’s behaviour a few days earlier and for orders to serve as a ‘holding’ and / or ‘protective’ measure. However, in that regard, I equally note that he first approached solicitors, which later led to the request for mediation and the lodging of the passports, before the events of 18/6/25 onwards in any event.

The real thrust of the father’s case on this limb was to submit that any retention by him was not wrongful on the grounds of the child’s habitual residence at the time. I therefore now turn to determine that core issue.

In an otherwise barren landscape under this heading, there is one area of agreement between the parties. It is agreed that the child was habitually resident in Japan during her first few weeks of life, at least until she moved with the mother to England on 1/11/22. It is the mother’s primary case that the child remained habitually resident in Japan from that time onwards until the pre-emptive breach by the father as so found above.

By contrast, the father contends that there was a change of habitual residence shortly after the “move” (on his case) to England on 1/11/22, with the result that the habitual residence did not change again thereafter back to Japan.

I pause to note that each parent steadfastly and emphatically says (again my underlining emphasis) that the child “lived” with that parent in that country and only “visited” the other.

I have considered with care the highly persuasive submissions of both leading counsel on this issue. I will endeavour to set out my summary of their respective arguments as part of my holistic assessment and determination.

In my judgment, from that agreed starting point just set out above, I should approach my assessment in part via the prism of this child as a child of international parents, who travelled with the child extensively between England and Japan and to other countries. It is no exaggeration to say that this child experienced more international travel, and has gained more ‘air miles’, in her first 3 years of life than many people experience in a lifetime!

There are significant grounds in support of the child’s habitual residence changing to England, if not immediately following the move in November 2022, then within a relatively short time thereafter. The parents had originally planned to settle in England as their main base, as reflected in the post mutual agreement. This was a major move for the mother. They had a settled home with the child in England, which they planned extending. Members of the father’s extended family had an opportunity to develop their relationship with the child and further encourage her exposure to English language and culture. Whilst the extended family did not live in the same area, they were within relatively short travelling distance of the family home. In particular, the child spent every Christmas and had other special occasions with father, as reflected in the delightful photographs before the court. Over time she would have become more aware of her home environment and local community, forming relationships with others outside her wider family and engaging in local community activities [97-/510; 175-/510]. Once again this is reflected in pictorial evidence before me [171-/510]. Her comprehension of English no doubt further flourished over time. She was enrolled (and attended for periods) in a local nursey from April 2023, where she no doubt made embryonic connections with her peers in the locality, with birthday parties and the like [161-/510]. She was also registered for core services, most importantly a GP practice from 14/11/22 (but seemingly not a dentist until much later). She also had some limited treatment and vaccinations [109/510]. In addition, there is some contemporaneous evidence of what can be interpreted as to father’s understanding of her having her home in England [150-/510] which was not challenged at the time with, on father’s case, some thought for her primary education in the area in the future [174/510].

In view of my earlier findings, I have not been assisted by father’s evidence [67/501] of the child’s purported integration after the date I have found for the pre-emptive retention set out above. Indeed, in my judgment, there is an element of overemphasis on his part of the period beyond May/June 2025 in his evidence [66-68/510] (e.g. “Since April 2025 [the child] has not been away from me for more than a few days and has developed a deep sense of security with me as her care giver”) as he probably knows that there is a degree of vulnerability on his case in terms of the full extent of his role in her life before that time.

On the other hand, there are arguments in favour of the child’s habitual residence at birth in Japan not changing. She had a home with her mother and grandmother consistently from birth until the mother’s property was purchased in 2025. She was, and remained, registered for a government funded nursery from July 2023. She had regular involvement with health professionals, including a dentist. She had similar engagement with her family and family friends in the local community in Japan, with equally delightful pictorial evidence [212-/510].

Before turning to make my determination, I pause to emphasise that I approach this exercise on the basis that the child’s British and Japanese cultural and linguistic inheritances are equally valid and important to her and that they will remain equally important to her in the future.

In addition, nothing in this judgment is designed to imply that either set of extended family members are inherently more important or loving towards the child than the other. She is clearly a much-loved child by all. They all form a part of the child’s practical and cultural support network, and will continue to do so in the future.

Following anxious reflection, I have come to the conclusion that there has been no change in term of the child’s habitual residence from birth. When sifting the above-mentioned competing factors, I am firstly drawn to the fact that within a few months of leaving Japan for the first time, she returned to the home that was provided by her maternal grandmother, with great grandparents nearby. She was present time and time again there, immersed in the Japanese language and culture.

Further to my opening remarks at the outset of this section of my judgment, I have taken into account the relationship with members of the extended paternal family with the child. However, it is unlikely that they shared the same intensity of a shared home life such as that which the child enjoyed with her maternal grandmother over her early years.

Turning to the division of the child’s time, as emphasised earlier, and in accordance with the jurisprudence, it is not just about the quantity of time a child spend in the country, it is the quality and degree of integration. In my judgment the child was present in Japan, in the care of, on balance, her mother as primary care giver for most of her early life, during a significant and formative period in her early childhood development.

Whilst I guard against over reliance on this factor, I do return again to the evidence of the child’s health and general development. As set out earlier, this was literally charted regularly over most of her life to Spring 2025 by child health professionals in Japan, which is to be distinguished from the rather more sporadic engagement by her with health professionals in England.

The child also returned time and again to the same nursery in Japan, which I am satisfied was more of a consistent feature in her life and from her early life perspective than the nursery in England.

In my judgment I can safely infer from a careful analysis of either the uncontroversial, or stripped back, facts in this case that the child, on balance, enjoyed greater and more consistent cadence or rhythm in terms of her Japanese life in her formative early years up to Spring 2025.

If I am wrong at this point in my analysis of habitual residence, then I am, alternatively, satisfied that the child regained any loss of habitual residence from Japan to England shortly after she returned there with the mother early in 2024. They returned in the context of the mother taking up, by agreement with the father, a permanent position in Japan. The father accepts that the mother was habitually resident in Japan from about this time onwards and was, I find, the child’s primary care giver at that time.

Furthermore, and directly from the child’s lived experience and perspective, she returned once again (in the context of this alternative finding) to the home that she had previously shared with her maternal grandmother, with other family members nearby, with the resumption of all the linguistic and cultural implications of the same. As indicated earlier the likely intensity of her re-immersion in the life of her wider maternal family on a daily basis is likely to have been very significant to her.

It is also significant, in the context of this alternative limb of the judgment, that she returned to the nursery that was already very familiar to her, to well known people and local community. It is also a significant factor that the parents were later planning around her to purchase a property together in Japan and that the mother, as primary carer giver, did indeed purchase a property in Japan early in 2025 that was destined to be the child’s settled home.

Finally, having been in Japan on many intervening occasions, and for prolonged periods, the regaining of her former habitual residence in early 2024 would, in such circumstances, have been relatively swift.

I have already touched upon the father’s case in this respect in my review of the relevant legal principles. I return to that case now in greater detail.

The father submits through leading counsel that the mother’s behaviour towards him meets the criteria to be assessed as domestic abuse. He refers to a pattern of years creating danger to the child. The court is invited to assume the maximum level of risk in this case, not least in the light of the knife incident and mother’s threats of self harm which led to her arrest. It is also submitted that the mother has been shown to be capable of making false allegations relating to the father. It is submitted that “…. the ramifications for him could have been enormous” had he not recorded the events of 18/6/25. He fears that the child would have been wrongfully removed to Japan and that he would never have seen her again. The point is also made that the child was present during (part of) this incident. He fears that the mother will follow through with this aim.

I was urged to reflect on the expert report and the further answers in their entirety. I was asked to pay particular attention to part of this evidence [396-404/510]. I digress to confirm that I have done so and will return to this evidence in more detail later. In outline, it is submitted that the expert evidence indicates that there is no procedure for the recognition or registration of undertakings. The mother can withdraw her consent at any stage to incorporating them in a “conciliatory clause”. Reference is made to the statistics show that the state is “94%” likely to designate the care of the child to her mother. Even if the Respondent was female, it is said that a foreign mother seeking permission to remove the child is “particularly difficult” and “exceedingly rare”. It is also noted that “...the Japanese Courts do not issue independent relocation orders...” even if the father were to become the custodial parent. It is submitted that this amounts to “bleak” prospects for the child and the father’s realistic ability to advance a case for her care and return to England. On the back of that premise, it is submitted that it is a situation that the child should not be expected to have to tolerate.

In relation to the proposed protective measures, the Court was once again referred to the expert’s report. The Court has been urged to be cautious about considering any return. I was asked to draw a comparison between the ‘known unknown’ in Japan with the clarity as to how courts in this jurisdiction will approach issues relating to safeguarding and domestic abuse. It was also submitted that the proposed undertakings would not be effective.

It is submitted that a defence under Article 13(b) is made out and the Court should exercise its discretion against the child being returned to Japan. The scenario was developed whereby the Court could then remove the stay on the CA89 proceedings, with a ‘swift’ determination following further evidence. I digress to comment that I, happily now more accustomed to the benefits of Pathfinder in South East Wales, was informed that this would translate in an area where the Pathfinder does not apply to a hearing as late as mid 2026.

In response, I was reminded that the mother also alleges that she has been the victim of serious domestic abuse perpetrated by the father. However, challenging though it may be from her perspective, the focus for my exercise is on the father’s allegations. In relation to his allegations, it is submitted that the majority do not relate to his parenting of the child, with reference to her contrasting account of the relevant context. Significant emphasis is placed on father’s suggestion of co-parenting until even shortly before the issue of this application. The positive assessment by social services was also emphasised, as was the resumption of their unsupervised time together.

On the back of these submissions it was further submitted that the father cannot discharge the burden on him to satisfy the court that there is a grave risk of harm or intolerability to the child being returned to Japan. Reference was also made to the positive content of the psychologist’s report [305-/510].

I was taken to the proposed undertakings offered by the mother, albeit without prejudice to her primary case that the relevant defence is not made out. In the event that the court considers that the father has established a grave risk of harm, it is submitted that the undertakings offered by the mother are sufficient to address any alleged risk to the child. I was referred in the expert’s report to the procedure to ensure recognition of an order or undertakings made in this jurisdiction by agreement between the parties through “conciliation proceedings” or “conciliation agreement” recorded in a “written settlement” [344/510]. In relation to the father’s proposed protective measures, it is submitted that are not, taken together, appropriate protective measures. I was asked to reject them and adopt the mother’s proposals.

In response to the father’s contention about the likely approach of the Japanese legal system, I have already set out some detail within the earlier section setting out the relevant submissions. I now turn to the detail in the report by Tomoko Takase [339-/510] and her answers to the questions [396-/510]:

A number of questions were posed to the expert. I note the following replies:

The father has, in support of this limb of his case, sought to rely heavily on his digest of concerns. These are described as “escalating” concerns, which are said to have a culminative impact. The two incidents on 18/6/25 and 19/6/25 are set out fully above. These incidents, and the incident back in 2022, form only part of the father’s present case as to the overall picture [68-/510-510]. I have to take these at their highest, albeit with the appropriate degree of analysis and appraisal commensurate with the particular nature of this hearing.

By way of appraisal, I have already confirmed that the incident on 18/6/25 was very concerning. There is a body of evidence, including the audio evidence, in support of the father’s case. Indeed, the mother accepts her actions in relation to the knife on 18/6/25. However, I have sought to explore the relevant context for this incident.

In relation to the father’s allegations about events on 19/6/25, there is once again a body of evidence. The father has also produced some prima facie evidence in support of his assertion that the mother was planning an incident that day that would ultimately involve police and the making of allegations against him. However, in my judgment, that evidence is also capable of other interpretation as set out earlier.

There is also the audio evidence relating to the earlier incident in 2022, which I have extensively reviewed earlier.

In relation to father’s specific concerns about the mother’s threats to self harm, the events of 18/6/25 provide some direct support from the mother’s accepted conduct in relation to the knife in relation to his assertion that she has made similar threats previously.

However, by way of overall review and appraisal, in my judgment the father’s lengthy digest of concerns must also be seen against the wider canvas.

Firstly, the father did not seek any professional advice about his concerns regarding mother. He repeatedly, on his own case, left the child in mother’s sole care in Japan. She was away from him and any real monitoring by him ‘on the ground’ for prolonged periods.

There is also no evidence before me that the father took any steps to alert anyone in Japan about his concerns regarding the mother.

I note that the mother has been receiving psychological input in Japan [221/510]. The reasons for her doing so are, on her case, related to father’s behaviour. This is in issue. For the avoidance again of any doubt, I confirm that this source of evidence was not the result of an independent Part 25 application for an expert’s report and there was no attempt in the hearing to treat it as such. However, the fact that she has sought external help in any event is positive.

It seems to me that I must have some regard to the fact that the mother continues to discharge her professional duties at her place of employment in Japan.

In relation to the father’s allegations that the mother repeatedly manipulated and controlled him, with threats to frustrate his role in the child’s life, once again it would appear he sought no professional advice about this until he approached his current solicitors in June 2025. I also note that this alleged behaviour has not historically had an apparent impact on his actual ability to parent the child.

I must also have regard to the broadly consensual picture that arrangements for the parents’ parenting the child were, in fact, going very well until a few months before the Spring of 2025. Father spent a lot of time with the child on any view. Indeed, events in the first quarter of 2025 did not stop the child from being brought to England in April 2025.

Furthermore, as recently as the letter dated 17/6/25 from the father’s solicitors, the solicitors were proposing, on his instructions, ‘50/50’ co-parenting between them. He seemingly cannot have had any real and meaningful concerns about the child’s fundamental safety and welfare in her mother’s care, or the impact of her alleged past behaviour on him. That therefore brings into sharp focus the events of 18/6/25 and 19/6/25 in relation to which the court has set out the context.

I also note that the father agreed to unsupervised contact between the child and mother on 21/7/25 and that all subsequent direct contact has been unsupervised, with no concerns arising. Whilst such periods of contact have been for relatively short time limited periods, these arrangements are nevertheless significant.

Finally, and set against all of the above, I also note that I am concerned with a delightful and well-adjusted little girl, who has progressed consistently well in her life to date with both individual and combined parenting, which on any view has been to a very large extent in mother’s care

I therefore now turn to consider the father’s contention that a return of the child to Japan would deliver to the mother a fait accompli in terms of effectively determining, adversely from his perspective, the future decision for the child’s fundamental future. On a worst-case scenario, he says he fears the end of his involvement in her life. I digress to note that he has been previously concerned that he would lose any case in Japanese [420/510] and, it seems to me, is vulnerable to the point that he has been seeking to obtain a tactical advantage in terms of his litigation conduct.

On the strength of the report, and the answers to some of the above questions, Mr Gupta KC urged me to form a negative view as to the prospects of the father gaining in Japan care (sole or joint) of the child long term or a relocation order. It seems to me that there may indeed be some basis to that submission.

On the other hand, I must bear in mind the counter submissions by Mr Gration KC. I agree that there is indeed a degree of resonance in terms of the Court’s approach to child matters in Japan to that deployed by the High Court and the Family Court in England and Wales. I agree that caution, as in most things in life, should be deployed in relation to statistics.

More fundamentally, I must consider the submission advanced to me that this Court should hesitate long and hard before acceding to a case that seeks to be critical of the Japanese Family Justice system and that, as a signatory to the Convention, the justice system in that country must be ‘trusted’. I discerned a degree of reluctant acknowledgement by Mr Gupta KC in that regard. In my judgment, that must be right. I should, and I do, endorse this important submission by Mr Gration KC.

Drawing together the strands of this section of my judgment, I have reached the conclusion that the father has not met the threshold for this Court to consider exercising its discretion not to return the child to Japan and that accordingly, the father has failed to discharge the burden on him under this limb of the case.

It follows that my ultimate summary determination is that the child should be returned to Japan.

It was confirmed in the course of the hearing that, in the event the mother’s application succeeded, the father would still accompany the child to Japan and that he would look to remain there for some months pending, hopefully, the determination of any litigation that may be necessary there to settle her future. Accordingly, the proposed undertakings set out by the mother remain relevant for my consideration.

The father has sought a range of undertakings from the mother [207/510]. In response, she has put forward the updated draft undertakings before me [332/510]. It is my understanding that she continues to agree to abide by such undertakings in any event [223/510]. That said, there are issues as to the extent of the provision sought by the father.

In my judgment, whilst it can be entirely ‘without prejudice’ to his primary case, it would be helpful if the father acceded to a similar non-molestation undertaking as that provided by the mother. That said, I cannot compel him.

In view of the child’s lived experience until Spring 2025, it seems to me that the undertakings should provide for a shared parental care arrangement as set out at paragraph ‘h’ of the schedule [332/510] after her return to Japan. Whilst it does not follow in the light of recent developments in relation to mother’s contact, and my determination in relation to the Article 13(b) defence, that the presence of the maternal grandmother is necessary, this would plainly be a familiar scenario for the child, or in more antiquated legal terms, this would amount effectively to a reinstatement of the ‘status quo ante’ in accordance with the earlier part of this judgment pending any final determination of her future in Japan.

I note that the mother is prepared to cover the costs of the child’s flight to Japan. If the father remains willing to do so, it seems sensible to me that he should accompany her back to Japan.

The mother is unwilling to contribute to father’s travel and related costs or contribute to what was described as a “fighting fund” of £10k for the father to underwrite to an extent litigation in Japan. In relation to this limb of the draft undertakings, I firstly accept the submission that these would not have amounted to elements of an appropriate undertaking if I had acceded to father’s Article 13(b) defence. Secondly, I have set out already the extent to which the parents have travelled between the two countries in recent years out of their finances. Finally, whilst I do not go so far as to say that father’s request is “egregious” in relation to the £10k contribution, I do accept that this is an unattractive aspect of his case in the light of the extent of costs that he has willingly and knowingly assumed in pursuing his own case.

For the avoidance of doubt, I endorse the remainder of the mother’s schedule. A repetition of what the child was exposed to by the parents on 18/6/25 and 19/6/25 is to be avoided and, as such, the parents’ contact with each other, at least for the immediate future, should be carefully regulated.

It follows that I have found that the father did indeed engage in a pre-emptive retention of the child on or about 18/6/25 and that this amounted to a wrongful retention as the child was habitually resident in Japan at that time. I have then determined that the father has failed to make out a defence in accordance with Article 13(b) of the Convention. I have found that the child should return to Japan. However, I have gone on to broadly accept the undertakings proposed by the mother.

I would therefore be grateful if the parties’ representatives would now draw up a draft order that reflects the terms of this judgment. In particular, the timely translation of key recent documents into Japanese should be addressed as a matter of urgency.

I finally record in closing my gratitude for the invaluable assistance provided to the court by the parties’ counsel with their submissions which were, as anticipated, of the highest standard.