[2025] EWHC 2961 (Fam)

Fecha: 24-Sep-2025

FATHER’S ARTICLE 13b DEFENCE

Overview

172.

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.

173.

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.

174.

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.

175.

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.

176.

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.

177.

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.

178.

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].

179.

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.

180.

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)

Japanese courts are not required to recognise or register an order issued by the English Court as such. If the party seeks to enforce in Japan, it is necessary to obtain an execution judgment [344/510];

(b)

There is no “mirror order” system [344/510] but enforcement may be pursued through conciliation proceedings at family court with a record of conciliation;

(c)

If the proposed terms have been confirmed in advance with the court, conciliation can be concluded on the first conciliation session date which is usually scheduled (quickly) about one to one and a half months after filing;

(d)

Undertakings cannot be directly recognized or enforced in Japan [344/510]. To obtain enforcement, an application for conciliation must be filed;

(e)

It should be noted [349/510] that the record of conciliation cannot always be drafted with exactly the same content as the order of the English Court. Japanese judges review the proposed terms of conciliation and may require modifications;

(f)

I digress to note the mother’s proposal in regard at point ‘f’ in her undertaking schedule [332/510] in relation to the above two points;

(g)

The Japanese system has, what the court would expect, a safeguarding process, termed ‘Child Guidance Centre’ [345/510; 35/510] which may place a child under temporary protective custody, separating the child from the parent in emergencies and, if necessary later, the Family Court. A process of ‘safety assessment’ informs the Court [355/510]. I note also that the ‘voice’ of the child is recognised;

(h)

The Court does engage in an assessment of a parent’s ability to care for a child. Court investigation officers examine the exercise of parental authority (or custody) [345/510] and in relation to determining an issue over parental authority [358/510]. (I digress to comment that such officials appear to discharge a role similar to that of Cafcass / Cafcass Cymru officer);

(i)

There is a criminal offence of kidnapping [346/510] but cases are seemingly “very rare” [362/510] with the prospect in this case appearing “low”. I digress again to note the mother’s point (i) [332/510] in any event, which can seemingly be taken into account [363/510];

(j)

The Japanese system recognises both the concept of domestic violence (and addresses the same via the court system and protective orders) [346/510] and within that also appears to identify the concept of “malevictims”, albeit with an apparent emphasis on female victims [365/510];

(k)

The apparent approach to domestic violence also appears to resonate to a degree with the approach in England and Wales [367-/510].

181.

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

(a)

There can be delays in obtaining an execution judgment of up to a year or longer [394/510]. In this case, as the English Court order concerns an order for the return of a child under the Convention, an issue may arise as to whether the English Court had jurisdiction to impose protective measures beyond ordering return, given that such protective measures are not permitted in Japan under the same proceedings;

(b)

Obtaining an enforcement judgment for a foreign judgment in Japan is permissible only when the ‘obligor’ fails to perform the obligations in such foreign judgment and the ‘obligee’ seeks enforcement proceedings in Japan. As Japan has no system for the registration or recognition of foreign judgments, regardless of

whether the parties have consented to the protective measures or their enforceability in Japan, it is only upon the obligor’s breach of the obligations stated in the foreign judgment that the obligee may obtain an enforcement judgment for the purpose of compulsory execution. It has no legal significance if a party withdraws their consent during the course of enforcement judgment proceedings, given that the non performance of the obligations already constitutes the basis for such proceedings 395/510];

(c)

A party may withdraw consent during mediation. However, if both parties consent, a mediation petition can be filed even before the child returns to Japan. A mediation record has the same legal

effect as a final and binding judgment and therefore allows enforcement in Japan in the same way as an execution judgment;

(d)

Japan does not provide any procedure for recognition or registration of undertakings. Undertakings are also not regarded as eligible for obtaining an execution judgment. There are no cases in Japan in which undertakings, in the UK or other countries, have been recognized or registered;

(e)

In cases where an undertaking was attached abroad, Japanese conciliation proceedings have on multiple occasions been utilised to incorporate the content of the undertaking into a conciliation clause (but no statistics are available);

(f)

It is possible for a party to withdraw consent during the course of conciliation proceedings;

(g)

In cases following a return under the Convention, physical custody, parental authority, and visitation (i.e. contact) are adjudicated through the ordinary procedures of divorce, custody designation, or visitation applications;

(h)

Joint parental authority (i.e. custody / residence) is not currently recognised (a statutory amendment has been enacted but not yet in force; (scheduled by April/May 2026) [399/410];

(i)

In divorce cases where parental authority was determined by conciliation or judgment, mothers were designated in 15,780 out of 16,859 cases, and fathers in only 1,373 [400/510]. The tendency to award parental authority to mothers is clear;

(j)

Although no statistics exist regarding foreign parents, precedents denying parental authority to foreign mothers indicate that obtaining parental authority is particularly difficult for foreign parents. The referenced precedent cases emphasised continuity of the physical custodial situation with the father. However, in addition to this factor, one judgment expressly treated the fact that the mother was a foreign national as a circumstance unfavourable to her acquisition of parental authority;

(k)

In another judgment the court relied on the mother’s limited Japanese language proficiency as a disadvantage;

(l)

In both these two cases, the courts declined to prioritise the maternal relationship;

(m)

From these cases, it may be reasonably inferred that instances in which foreign parents, particularly fathers, are awarded parental authority by Japanese courts are exceedingly rare;

(n)

As to relocation, under Japanese law the right to determine a child’s residence is considered part of parental authority. In principle, Japanese courts do not issue independent relocation orders;

(o)

Accordingly, a custodial parent may relocate, including abroad, without the consent or even notification of the non-custodial parent and Japanese courts have rarely adjudicated relocation disputes;

(p)

There have been no precedents approving international relocation. However, after the statutory amendment introducing joint parental authority enters into force, in cases of post-divorce disputes concerning relocation, the family court will be authorised to designate the parent entitled to exercise parental authority in this respect (provision cited);

(q)

With respect to visitation (i.e. contact) substantive visitation arrangements are generally permitted in ordinary domestic cases, and the same approach applies following returns under the Convention. Visitation may also be ordered where the non-custodial parent resides abroad;

(r)

Although not reflected in official statistics, in cases where the non-custodial parent resides abroad, in-person visitation in Japan

typically takes place once every few months. Since the COVID-19 pandemic, online visitation has been more common, with frequencies such as once a week or twice a month. Visitation abroad during long school holidays may hardly (i.e. rarely) be approved without the consent of the custodial parent;

(s)

It should be emphasised, however, that even where visitation is ordered, enforcement is carried out only through indirect enforcement. Visitation is therefore not automatically realized. Where the custodial parent lacks assets or stable income, even if penalties are imposed through indirect enforcement, the custodial parent may disregard the order and continue to withhold the child from visitation;

(t)

Protective orders are issued when a victim of spousal or intimate-partner violence faces a high risk of further acts of violence likely to cause serious harm to life or body (provision cited). While past acts abroad and criminal convictions may be taken into account,

the decisive factor is whether there exists a current and serious risk of future harm. Thus, a protective order will not be granted on the basis of a conviction abroad alone, unless accompanied by circumstances such as the perpetrator pursuing the victim back to Japan or threatening the victim after arrival in Japan;

(u)

Under Japanese law, the concepts of “coercive control” and “psychological abuse” are not explicitly defined. However, such conduct may fall within the scope of “spousal violence. It is not sufficient to rely on past conduct alone; there must also be a present and substantial risk of future serious harm to the victim. Thus, conduct that has occurred only in England will not, by itself, justify the issuance of a protective order in Japan.