[2025] EWHC 2961 (Fam)

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.