Key Facts
- •S, a 9-year-old girl with dual British and Japanese nationality, was taken from Japan to England by her father in June 2022.
- •The mother seeks S's return to Japan under the 1980 Hague Convention.
- •The father opposes the return, citing several defenses including a change in habitual residence and a grave risk of harm to S if returned to Japan.
- •There is evidence of a volatile relationship between the parents, including allegations of abuse and threats by the mother towards both S and the father.
- •Extensive video and audio recordings, WhatsApp messages, and witness statements were presented as evidence.
- •S expressed a strong desire to remain in England.
Legal Principles
Wrongful removal or retention under Article 3 of the Hague Convention requires a breach of custody rights and the exercise or potential exercise of those rights.
1980 Hague Convention, Article 3
Habitual residence is a question of fact, focusing on the child's degree of integration into the social and family environment.
Various case laws including Re LC, Re B, Re M, Re A
Consent to removal or retention must be clear, unequivocal, and communicated to the removing parent; it is assessed based on the words and actions of the remaining parent and not contractual terms.
Re G (Consent; Discretion) [2021] EWCA Civ 139
Acquiescence requires the left-behind parent to have either subjectively consented or passively gone along with the child's continued presence in the new location; the outward behaviors must clearly indicate non-assertion of the right to return.
Re H and Others (Minors) (Abduction: Acquiescence) [1998] AC 72, JM v RM
A child's objection to return must be to the country of habitual residence, though it can be inextricably linked to an objection to a specific parent.
Re M (Republic of Ireland)
The Article 13(b) defense requires proving a grave risk that the child's return would expose them to physical or psychological harm or an intolerable situation; the court considers the cumulative effect of allegations and the availability of protective measures.
Re A (Children), Re E (Children), Re IG, Re C
The court has discretion to refuse a return order if an Article 13 exception is met.
Re M (Abduction: Zimbabwe) [2007] UKHL 55, Re G (Abduction: Consent/Discretion)
Outcomes
The application for the summary return of S to Japan is dismissed.
The court finds that S's habitual residence had shifted to England by October 2022. Even if not, the mother acquiesced in S remaining in England, S objects to returning to Japan due to the mother's abusive behavior, and there is a grave risk of harm to S if returned to Japan.