[2025] EWHC 2961 (Fam)

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.