Buscador de jurisprudencia

The parents married in the UK in 2021. The father was British and the mother Japanese. Following their marriage the parents entered into a post-nuptial agreement which included a clause that, should the parties have children, they will live in England. 

They had a child in 2022. At the time the parents were living in England but travelled to Japan for the birth. The child had dual nationality and the parents had shared parental responsibility.

The child travelled back and forth between England and Japan and was enrolled in a nursery in both countries. 

The mother applied for a job in Japan and the father supported her. She was offered the job and began in May 2024. 

In late 2024 there was a serious deterioration in the parents’ relationship. At the time the mother and child were in Japan and the father was living in England.

The father alleges that in March 2025 the mother told him that she was unable to cope with solo parenting. The mother denies this. Arrangements were made for the child to stay in England with the father from the end of April until the beginning of July 2025. There was then discussion of the child staying until September 2025 but the parents never reached an agreement and the relationship deteriorated further.

The mother made an application under the 1980 Hague Convention for the return of the child to Japan.  

Order for return of the child to Japan. 

Habitual Residence - Art. 3

The parents agreed that the child was habitually resident in Japan at least until she moved to England with the mother in November 2022. The mother argued that from that time onwards the child was habitually resident in Japan and the father argued that she remained habitually resident in the UK. 

The child spent a good deal of time in both countries in her first three years of life and had a level of integration in both (with extended family, nursery placements, registration with and visits two health professionals etc).

After considering all the evidence, the Judge concluded that the child’s habitual residence remained in Japan. The decision was based not just on the quantity of time a child spent in the country, but the quality and degree of integration. On balance, the mother was the primary care giver for most of the child’s early life, during a significant and formative period in her early childhood development. Her nursery and healthcare also seemed more consistent in Japan. 

Regarding the post-nuptial agreement stating that the parties will live in England if they had children, the Judge noted that this agreement was in no way determinative of the issue of habitual residence. Rather, it was reflective of the parents’ intentions at the time the agreement was settled. 

Grave Risk - Art. 13(1)(b)

The father argued that the mother’s behaviour towards him amounted to domestic abuse. It was further argued that the Japanese courts only make relocation orders on very rare occasions, and so it is unlikely that the father would be able to advance a case for her care and return to England. 

The Judge took into consideration that the father did not take any steps to alert anyone or seek professional advice about his concerns regarding the mother and repeatedly left the child in the mother’s sole care in Japan. The Judge also had regard to the fact that the co-parenting arrangements were going well until early 2025 and that, even up to mid-2025 the father proposed 50-50 co-parenting and therefore seemingly could not have had any real and meaningful concerns about the child’s fundamental safety and welfare in her mother’s care.

Regarding the approach of the Japanese Family Court to relocation orders, the Judge held that the 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’. 

Taking all factor into consideration the father did not meet the threshold for the Court to consider exercising its discretion not to return the child to Japan.