R (A Child)

Under the Hague Convention, a child’s return must be ordered where wrongful removal or retention is established and no Article 13 defence succeeds. Married parents may have joint rights of custody, including the right to determine the child’s place of residence. One parent cannot unilaterally change the child’s habitual residence without the other parent’s agreement.

Acquiescence requires conduct which clearly and unequivocally demonstrates that the wronged parent will not seek summary return. Silence or a failure to communicate will not ordinarily suffice. Welfare concerns and the disruption caused by separation from a parent do not establish grave risk under Article 13(b) where they are matters for the courts of the child’s habitual residence.

The father sought the summary return of his seven-year-old son from the United Kingdom to Japan under the Hague Convention on the civil aspects of International Child Abduction 1980. The parents, who remained married, had separated in Japan and had entered into a Tokyo Family Court mediation agreement concerning contact. The mother took the child to the United Kingdom for her proposed year-long research assignment without awaiting determination of her application to vary that agreement.

The mother disputed the father’s custody rights and contended that the child had become habitually resident in the United Kingdom. She relied on acquiescence, grave risk of psychological harm and the child’s objections. The central issues were whether the removal or retention was wrongful and whether any Article 13 exception was established.

1. Custody rights. The father bore the burden of proving custody rights and the child’s habitual residence. Article 5 distinguishes rights of custody from rights of access. Because the parents remained married and the Tokyo proceedings seeking sole custody had not been determined, they had joint rights of custody, including rights relating to the child’s place of residence.
2. Habitual residence. Japan remained the child’s habitual residence. The mother’s applications to the Tokyo Family Court supported that conclusion. The mother could not unilaterally alter the child’s habitual residence where the father also held custody rights. There was also no sufficient evidence of a settled intention for the child to remain in the United Kingdom for a specific period, particularly as his entry was as a tourist for up to six months.
3. Acquiescence. Applying the principles in Re H [1998] AC 72, the burden lay on the mother. The father’s contemporaneous communications, including his letter to the Home Office and his application to the Central Authorities, demonstrated that he did not acquiesce in the child remaining in the United Kingdom beyond the short period covered by the return ticket. His later failure to communicate was not unequivocal conduct inconsistent with seeking return.
4. Child’s objections and grave risk. The evidence did not establish that the child objected to returning to Japan. He was looking forward to seeing his father and friends. The alleged emotional harm, separation from the mother and welfare concerns were matters for the Tokyo court determining the child’s long-term future. They did not establish the grave risk or intolerable situation required by Article 13(b), applying the approach explained in Re E (Children Abduction Custody Appeal) [2011] 2 FLR 578.
5. The child had been unlawfully retained in the United Kingdom in breach of the father’s custody rights. Japan was his country of habitual residence, and no Article 13 defence was established. The court ordered his return to Japan on or before 30 July 2014, enabling the Tokyo Family Court to determine the parental disputes.

First-instance application under the Hague Convention. No earlier appellate decision is stated in the judgment.