Father v Mother [2026] EWHC 1410 (Fam)

[2026] EWHC 1410 (Fam)Case No FD25P00703
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/05/2026
Before
MS JUSTICE HARRIS
Between
FATHERApplicantMOTHERRespondent
Michael Gration KC and Mani Basi (instructed by Osbornes Law) for ApplicantAnita Guha KC and Lubeya Ramadhan (instructed by Freemans Solicitors) for RespondentHearing Hearing dates: 11th and 12th May 2026
Approved JudgmentThis judgment was handed down remotely at 4:30pm on 9th May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.
[1]This is an application for the summary return of three children: D, aged 12; K, aged 9; and P aged 6, to Peru. The applicant is their Father who has been represented by Mr Gration KC leading Mr Basi. The respondent is their Mother who has been represented by Ms Guha KC leading Ms Ramadhan.[2]The court observes at the outset how sad it is for this family to find themselves in Hague proceedings of this nature. The children are clearly very much loved, and both parents are entirely committed to them. Both parents recognise the importance of the other parent in the children’s lives. The children’s emotional welfare is clearly being compromised by the parents’ dispute and the uncertainty over their future. Father would appear to have been open to trying to make a life for himself in this country in order to be with the children and find a solution that is in their best interests. He needs support to make that realistic and sustainable. I note that the parents have engaged in mediation but that was not successful and, unfortunately, they have been driven into the fixed and uncompromising positions of adversarial litigation. I hope they may now be able to return to mediation to resolve the longer term welfare needs of the children.

Background:

[3]The applicant father is a Peruvian national. He has no current immigration status in this country, although an application is pending. The respondent mother is a British national. She has no current immigration status in Peru, although she previously resided there for some 14 years. The children are joint British and Peruvian nationals. They were born in Peru and had always resided there prior to coming to this jurisdiction for what was intended to be a 3-month holiday in July 2024. They have been living in this jurisdiction since that date.[4]The parents met when the mother was travelling in Peru in 2012. They married in August 2014. The three subject children were born in Peru. The family home is in Q, although due to the accrual of debts it was transferred into the maternal grandfather’s name. Following the COVID pandemic the children were home schooled in Peru by mother.[5]The parents separated in March 2024. In July 2024 father agreed that mother could travel with the children to England to spend time with the maternal family for a period of 3 months. It was then agreed between them that the stay could be extended until 31st December 2024 so that the children could spend Christmas with their extended family in England. Thereafter the parents dispute what, if anything, was agreed regarding the children remaining here.[6]Mother’s position is that following the recurrence of an issue with her ankle in October 2024, she was advised she needed surgery to remove a benign tumour that had regrown. She therefore needed to remain in the jurisdiction for a further 6 months to allow for the operation and recovery. She asserts that Father agreed to that further extension. The children started school in December 2024 given their extended stay in the jurisdiction. She maintains she did not come to a firm decision that she and the children should remain living permanently in England until she communicated the same to the father on 18th July 2025. Mother asserts that Father, who had travelled to this jurisdiction on 8th July, did not demand the children were returned to Peru but continued to progress plans that would allow him to settle here as well. It was not until 5th October 2025 that mother says Father first demanded the children’s return to Peru. Proceedings were issued on 28th October 2025. Mother relies on the children having become habitually resident in England and Wales by the point at which any alleged wrongful retention is asserted by Father.[7]Father’s position is that he never consented to any extension of the children’s stay in England beyond 31st December 2024. He asserts that mother had decided to remain in England by this date as is evidenced by her decision to enrol the children in school. In the alternative he asserts that the wrongful retention occurred on 30th March 2025 or in May 2025 following the proposed recovery period for the ankle surgery. The latest date he asserts that the wrongful retention took place is when the mother clearly communicated her decision to remain in England to him on 18th July 2025. He disputes that the children have become habitually resident here.

The Hague Convention:

[8]It is important when considering any application under the 1980 Hague Convention to remind ourselves of the core principles underpinning such applications. The cardinal principle is to secure the prompt return of children wrongfully removed or retained to their country of habitual residence, it being recognised that generally it is the courts of habitual residence that are best placed to make substantive decisions regarding the children’s welfare. The court reminds itself that these cases are about where the substantive welfare arguments should be heard; it is not to make those welfare decisions (per Mostyn J in B v B [2014] EWHC 1804).

Has there been a wrongful retention, and, if so, when?

[9]The foundational question that must be addressed in this case is whether the children have been wrongfully retained away from their state of habitual residence. If Father cannot establish this essential jurisdictional requirement, the Convention does not apply and the application must fail. If he can establish wrongful retention, the burden will shift to Mother to establish one of the defences provided for under the Convention.

Wrongful retention:

(b) Wrongful retention:

[10]The essence of the Hague Convention is that the children have been wrongfully removed or retained in breach of the rights of custody of the ‘left-behind parent’. Article 3 provides: Article 3: The removal or retention of a child is wrongful where: 1) It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of habitual residence; 2) At the time of removal or retention those rights were actually exercised or would have been but for the wrongful removal or retention. There is no dispute in this case that the father has rights of custody that he has exercised on a continuing basis. The issue is whether the children were wrongfully retained and, if so, when. The date of any alleged wrongful retention is significant because it is only wrongful for the purposes of the Convention if the children remained habitually resident in Peru immediately before the retention. Article 3: 1) It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of habitual residence; 2) At the time of removal or retention those rights were actually exercised or would have been but for the wrongful removal or retention.

Article 3:

[11]As held by the House of Lords in Re H (Minors)(Abduction: Custody Rights) [1991] 2 AC 476, ‘retention’ is an event occurring on a specific occasion, and is not a continuing state of affairs. A wrongful retention was explained by Lord Brandon in the following words: “[The child] has first been removed rightfully (eg under a court order or an agreement between its two parents) out of the state of its habitual residence and subsequently retained wrongfully (eg contrary to a court order or an agreement between its two parents) instead of being returned to the state of its habitual residence… The typical (but not necessarily the only) case of a [wrongfully retained] child…is that of a child who is rightfully taken out of the state of its habitual residence to another contracting state for a specified period of staying access with its non-custodial parent, and wrongfully not returned to the state of its habitual residence at the expiry of that period.

Repudiatory retention

[12]It is possible for a parent to be found to have committed a repudiatory retention. This was not advanced by father until his skeleton argument for the final hearing. The principles for determining a repudiatory retention are set down by Lady Justice Black, sitting in the Court of Appeal, in Re C: [131] I have found it helpful, in reaching my own decision as to whether the concept of anticipatory breach is to be accepted at all, to start with the two ends of the spectrum. Taking first the parent who simply resolves in his or her mind not to return the children, I would not accept that that would be wrongful retention and nor do I think that Mr Williams and Ms Renton really contend for this, partly because they submit that a private decision will always, in fact, be accompanied by overt acts, in the form, for instance of making arrangements for the longer stay. To treat a private decision on its own as a wrongful retention of the children might well risk a significant expansion of Hague hearings so that counsel could explore, in cross examination, the thinking of the parent with the children… Furthermore, private decisions are always open to change, especially when they are about family life, and perhaps particularly so at times when the adults’ relationship is troubled. By the time the date for returning the children arrives, the parent may have come full circle and may in fact return them as agreed. [173] I adhere to my view that a private and uncommunicated resolution not to return the children is insufficient. If, in contrast, the parent with the children tells the other parent of the decision, it will depend on all the circumstances of the individual case whether this can amount to anticipatory retention. If so, I would expect the date of the retention to be the date on which the communication occurs.[13]The principles to be applied in determining whether or not there has been a repudiatory retention were confirmed by the Supreme Court in the same case (Re C [2018] UKSC 8) on appeal: 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 Re H 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) 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 Re H 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.

Habitual residence:

[14]As noted above, the retention is only wrongful for the purposes of the Convention if the child is being retained away from their State of habitual residence. The judgment of LLJ Sharp and Thirlwall in the Court of Appeal in Re C sounds a clear note of caution regarding the potential impact of a change in the children’s habitual residence on the operation of the Convention. 188. In the modern world, agreements between parents that one or other or both of them will move across the world with their children for a period of months, a year, or more are increasingly common. It seems to us that parents (particularly estranged parents) who are considering such an arrangement must understand that if one of them should change their mind, the children may remain permanently in the new country, against the wishes of the other parent either because the defence of settlement under article 12 of the Convention will apply or because habitual residence may change during the currency of the agreement between the parties thereby ousting the Convention altogether.[15]Habitual residence is a question of fact. Re F (A Child) (Habitual Residence) [2025] EWCA Civ 911 is the lead authority. Moylan LJ held: 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 para 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”… It is “focused on the situation of the child.” 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 [2018] Fam 385, at para 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 presence is not in any way temporary or intermittent…”; c) Factors of relevance, as set out in Proceedings brought by HR, at para 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 places 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; e) As set out In re R, at para 16, it is “the stability of the residence that is important, not whether it is of 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; f) The “degree of integration of the child into a social and family environment in the country in question” is relevant, In re R, at para.17. It is clear that “full integration” is not required, 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. 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.” h) The court is considering the connections between the child and the country or countries concerned. This is a comparative analysis: “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 In re B (SC) in which Lord Wilson JSC, at para 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.” a) “The identification of a child’s habitual residence is overarchingly a question of fact”… It is “focused on the situation of the child.” 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 [2018] Fam 385, at para 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 presence is not in any way temporary or intermittent…”; c) Factors of relevance, as set out in Proceedings brought by HR, at para 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 places 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; e) As set out In re R, at para 16, it is “the stability of the residence that is important, not whether it is of 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; f) The “degree of integration of the child into a social and family environment in the country in question” is relevant, In re R, at para.17. It is clear that “full integration” is not required, 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. 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.” h) The court is considering the connections between the child and the country or countries concerned. This is a comparative analysis:[16]The extent to which the habitual residence of the parents may have changed is relevant to this analysis, particularly for young children dependent upon a primary carer. This key consideration was addressed by Lord Wilson in Re LC (International Abduction: Child’s Objections to Return) [2014] 1 FLR 145: The conventional starting point was that the child took his or her habitual residence from the parent with whom he or she lived but it was possible that a mature child might adversely react to a move to a different country and that could be sufficient to disrupt a parents’ plans to settle there permanently. It was, however, important to keep in mind and be cautious of evidence as to state of mind. That was particularly so, where children of the sort of ages of these children were living together with their parent and where there was no evidence that any of them had practical autonomy independent of the decisions of their parents. Very firm focus would need to be kept on the family as a whole, albeit made up of its constituent parts.[17]Parental intentions are relevant to this analysis, albeit not determinative. It was held by the Supreme Court in AR v RN [2015] UKSC 35: Parental intentions in relation to residence in the country in question are a relevant factor, but they are not the only relevant factor. The absence of a joint parental intention to live permanently in the country in question is by no means decisive. Nor, contrary to counsel’s submission, is an intention to live in a country for a limited period inconsistent with becoming habitually resident there. As was explained in A v A, the important question is whether the residence has the necessary quality of stability, not whether it is necessarily intended to be permanent.

Consent:

[18]Crucial given the particular issues in this case, is how one approaches the question of consent. Although consent is a specified defence under article 13(a), it is threaded throughout the issue of whether there has been a wrongful removal or retention. The principles to be applied when considering article 13(a) appear to this Court to be of equal application where the issue of consent arises in determining the question of wrongful retention.[19]In determining whether a parent has consented to a removal or retention, Re G (Children) (Abduction: Consent/Discretion) [2021] EWCA Civ 139 sets out the approach to be adopted:(1) The removing parent must prove consent to the civil standard. The inquiry is fact-specific, and the ultimate question is: had the remaining parent clearly and unequivocally consented to the removal?(2) The presence or absence of consent must be viewed in the context of the common-sense realities of family life and family breakdown, not that of the law of contract. The court will focus on the reality of the family’s situation and consider all the circumstances in making its assessment. A primary focus is likely to be on the words and actions of the remaining parent. The words and actions of the removing parent may also be a significant indicator of whether that parent genuinely believed that consent had been given, and consequently an indicator of whether consent had in fact been given.(3) Consent must be clear and equivocal, but it need not be given in writing or particular terms. It may be manifested by words and/or inferred from conduct.(4) A person may consent with the gravest reservations, but that does not render the consent invalid if the evidence is otherwise sufficient to establish it.(5) Consent must be real in the sense that it relates to a removal in circumstances that are broadly within the contemplation of both parties.(6) Consent that would not have been given but for some material deception or misrepresentation on the part of the removing parent will not be valid.(7) Consent must be given before removal. Advance consent may be given to removal at some future but unspecified time or upon the happening of an event that can be objectively verified by both parties. To be valid, such consent must still be operative at the time of the removal.(8) Consent can be withdrawn at any time before the actual removal. The question will be whether, in the light of the words and/or conduct of the remaining parent, the previous consent remained operative or not.(9) The giving/withdrawing of consent by a remaining parent must have been made known by words and/or conduct to the removing parent. A consent/withdrawal of consent of which a removing parent is unaware cannot be effective.[20]As noted above, although the principles set down in Re G are focused specifically on a parent’s consent to removal, the court is satisfied the same principles will apply to the question of whether a parent has consented to a child being retained outside their habitual residence for a period beyond that initially agreed.[21]Given the defences relied upon by Mother will only be of relevance if a wrongful retention is established, the Court will deal first with that foundational question.

Evidence:

[22]Both parents have filed detailed statements in support of their position. The court has also been assisted by a bundle of WhatsApp messages providing a contemporaneous record of what the parents were saying to one another throughout the period in contention. Unusually, both parents confirm that the WhatsApp messages have been there only form of communication and therefore contain the entirety of what has passed between them. The bundle of messages is not a complete record, but both parents have had the opportunity to include those messages on which they rely. There is also a Cafcass report authored by Ms Huntington dated 26th January 20206 setting out her discussions with the children regarding their wishes and feelings, and two expert reports on Peruvian law and immigration authored by Dr Abogados and Mr Bringas.[23]The court heard short oral evidence from each parent.

Father:

[24]Father has filed two statements in support of his application, one authored by his solicitor Ms Sandhu dated 24th October 2025 and his own lengthy statement dated 26th January 2026.[25]In his written evidence Father asserts that the parents separated in October 2024 when the mother informed him she wished to divorce. He states that he has never agreed to the children permanently remaining in England and their habitual residence continues to be Peru. He explains that the mother travelled to England with the children on 3rd July 2024 for a 3 month holiday. Return flights were booked for 7th October 2024. On 19th August 2024 mother requested an extension to the stay which he agreed, and the return flights were changed to 31st December 2024. He says he felt compelled to agree as the children had never experienced Christmas in England before. He says that on 30th October 2024 Mother contacted him again advising that she may require surgery on her ankle which she proposed to have in England before returning to Peru. No return date was specified. On 30th November 2024 mother informed him she wished to remain for 6 months to allow for the surgery and recovery. Father asserts that he never agreed this arrangement and tried to discuss the same with mother. He says that he made it clear he wished mother and the children to return at the end of December and made it clear that he would travel to England to collect the children if mother was unable to return due to the surgery. Mother would not provide a return date, indicating it would be around 6 months. In his second statement, Father questions the genuineness of the purported need for surgery, observing that she did not require surgery whilst living in Peru.[26]On 11th March 2025, Mother confirmed her surgery would take place on 22nd March 2025. Father says he agreed the children could remain in England for one week following the surgery, that is until about 30th March 2025. Father says when he attempted to discuss matters with mother she would say she would see how things went and refused to provide a return date. He asserts that he did not agree to them remaining in England beyond 30th March 2025. He says he assumed they would return to Peru by the end of May which coincided with mother’s earlier indication that the surgery and recovery period would be some 6 months. They did not however return despite him offering to care for the children whilst Mother had her surgery and to pay for return flights.[27]Ms Sandhu’s statement then sets out that when mother and the children did not return to Peru at the end of May, Father began to make arrangements to travel to England to bring the children back to Peru. To raise funds he says he rented out the family home and stayed with relatives. In his second statement he asserts that he formed this intention in April. He resigned from his job and travelled to England on 8th July 2025. He says that Mother refused to hand over the children’s passports so he could book the return flights. On 18th July 2025, the mother informed him for the first time that she and the children would be remaining in England and she would not return to Peru. Father says he was extremely upset by this and wanted the children to return home. On 6th October 2025 the father sent a WhatsApp message to mother demanding she return the children to Peru.[28]Father also asserts within this first statement through his solicitor that the children were enrolled in schools by mother without his knowledge or consent, saying in his second statement that there was no meaningful consultation with him. The decisions, he says, were made unilaterally by Mother. He continues that he believes she was misleading him into thinking they could work things out amicably so that his application for return was delayed. In his second statement he explains that he instructed lawyers in September 2025 and made his application to the Peruvian Central Authority to seek the return of the children on 15th September 2025.[29]With respect to the suggestion that the children have acquired habitual residence in England, Father asserts that the children have never acquired stability here. He points out that they initially lived with their maternal grandmother, but then moved to live in maternal grandfather’s house which was cluttered and cramped and unsuitable for children. He says they could not settle without their father being with them. P in particular has struggled with attending school.[30]In Peru he says the children enjoyed a higher than average standard of living, the stability of their family home, their pets, school places had been secured for them in the S school, they participated in many extra-curricular activities including ballet, football, horse riding, music, swimming and painting classes and they enjoyed close relationships with paternal family and friends. In his second statement he accepts that he had suggested to Mother that they sell the family home in Peru but indicates he never intended to do this – he was trying to open up a line of dialogue. He asserts that it was after they separated that Mother insisted the house be placed in her father’s name. He denies being willing to enter into child arrangements for shared care in this country.[31]The Court has considerable sympathy for the predicament in which Father has found himself. The Court is satisfied he is motivated only by his love for his children and his absolute commitment to being with them. It was somewhat unedifying to see him subject to such criticism for having left behind his life in Peru to come to England to be with his children in circumstances in which he has no accommodation, no employment or means to financially support himself (other than the kindness of his family) and his immigration status is extremely precarious. Sadly, there was little appreciation in the questions being put to him as to the invidious situation mother’s decision-making has created for him, and thereby the children who are desperate to retain their relationship with their father. Far too much emphasis was placed on the fact that Father has made a necessary immigration application to be able to remain here lawfully beyond the expiry of his tourist visa.[32]That said, however, the Court is satisfied that his evidence lacked consistency and reliability, and he presented as somewhat evasive and defensive when giving oral evidence. There were a number of important points within his oral evidence which simply did not align with the written evidence he has filed:• He accepted that the parents in effect separated in March 2024, albeit they remained living in the same house, and that she had told him she wished to divorce shortly before travelling to England. That is inconsistent with his written evidence where he suggests the separation only occurred in October 2024 once Mother was in England.• He accepted in cross-examination that he had agreed to an open extension to the children’s stay beyond 31st December 2024 with no date set for return. He expressed his difficulty being in another country and that he felt he had no choice but to agree to the children remaining in England for their mother’s operation.• He accepted that he had suggested in November 2024 selling the family home in Peru which was inconsistent with the family returning.• He accepted that it was not true as asserted in his initial statement that mother had not told him of the plan to enrol the children in school. Whilst she did not consult with him about the choice of schools, she did inform him that she was looking for school placements.• It is clear from his oral evidence that father began to prepare to travel to England much earlier than the end of May as originally suggested in his written evidence. He told the court he made arrangements to rent the family home out in March, which is very shortly before the date he tells the court he anticipated the children would be returned to Peru. If he really did anticipate the children’s return on 30th March 2025 it makes no sense to have rented out the family home earlier that month. He also confirmed to the court that he initially rented out the home until November 2025 which is inconsistent with any intention by Father to travel to England simply to return the children to Peru. He explained to the court that he estimated he had sufficient funds to remain in England until November.• The flight he booked to travel to England on 8th July 2025 had a return date of 8th October 2025. That is not consistent with travelling to England with the intent of returning the children to Peru. He clearly anticipated a longer stay.• Agreeing to the children going on holiday to Spain at the end of July was not consistent with him travelling to England with the intent of returning with the children to Peru.[33]The Court also notes there is both written and oral evidence that points to the relationship between the parents having significantly deteriorated in September 2025 when issues emerged regarding P’s school attendance, he was presenting as very distressed and he moved to live with his father. It was at this point Father instructed lawyers and he made an application to the Peruvian Central Authority. That timing is consistent with Father becoming very concerned as to his children’s well-being in this country and matters in effect coming to a head.[34]There are thus aspects of Father’s evidence that appear contrived in order to strengthen an application for summary return under the auspices of the Hague Convention.

Mother

[35]Mother has filed one statement within the proceedings dated 23rd December 2025. In that statement Mother describes that she travelled to England with the children on 3rd July 2024 for what was intended as a short holiday. They planned to return to Peru on 7th October 2024. Initially they lived at her mother’s house. She sold her house and so they moved into her father’s house. Since 20th November 2025 they have been living in a rented flat in Surrey.[36]In August 2024, shortly after their arrival, she asked Father if they could stay until December so that they could spend Christmas with her family. Father consented to the children remaining in England until 31st December 2024. However, around October 2024 her ankle became very painful and she couldn’t walk for four days. She had previously had a benign tumour removed. She attended an MRI and in December was placed on the waiting list for surgery. She knew that she would need to remain in England for a while, and so enrolled the children in school. They started in mid-December 2024.[37]Mot accepts that father initially asked her to return with the children and then come back to England on her own for the surgery, but she didn’t have sufficient money for the return flights to Peru. She asserts that after much discussion, she said she would need to remain for 2-3 months after the surgery for recovery and at no time did Father say she had to be back in Peru by 30th March 2025. She says no set date to return was given by him.[38]Mother describes the children throughout this period as remaining settled in their daily routines. The surgery took place on 8 April 2025, and with around 2 – 3 months for recovery, she envisaged Father may expect her back in Peru around June, albeit they didn’t formally discuss it. However, shortly after the surgery, she says Father informed her that he was planning to visit the children in England. He gave up his job in Peru, and rented out the family home.[39]By June 2025, Mother says the children had been living in England for several months and were fully settled, with routines, friendships, healthcare, schooling, and family life all centred here. They developed strong connections to England. She recovered well and started a job as a cleaner in mid June. She remains employed in this capacity.[40]Father arrived on 8 July 2025, having quit his job and rented out the family home. She says that not long after arriving he began speaking about applying for a parent visa, and selling the house. He asked her for the children’s passports so he could apply for a parent visa. She says she believed he was trying to stay in England long term.[41]Mother acknowledges that Father has now demanded the children’s return, but she maintains that prior to 5 October 2025 he had not done that. Each time he discussed a potential return, he did not insist on it and indeed allowed the stay to continue, agreed to extensions, and facilitated the children remaining. By taking steps to come here himself, she suggests he effectively confirmed that the children’s continued presence in England was acceptable to him, even if agreement was reluctant at times. She asserts that it was her understanding that once he had arrived here to spend time with the children, his plan changed and he intended to live here permanently, and that he was not seeking the children’s return to Peru. She says she was shocked when she was served with the Hague proceedings.[42]As regards to habitual residence, Mother asserts that she is habitually resident in England, having settled very quickly once they arrived, noting that this is where she was born and raised, where she has family and friends, and where she has built her life. In Peru she says she had no support network and felt utterly isolated. She suggests the children’s habitual residence is closely tied to her because she is their primary carer and their lives centre on her. She suggests that by living with her here, the children’s routines, daily life, emotional support, and connections are all rooted in England. The children are in her view fully integrated into their social and familial environment.[43]By 30th March 2025, Mother notes that England was the place where the children were living their everyday lives, attending school, receiving healthcare, attending activities, spending time with family and friends, and where they were emotionally settled and secure. They had adapted to school extremely well, made friends, grew comfortable with their teachers, and became part of the school community. She describes school as giving them “structure, routine, and a sense of belonging.” The children were also registered with a local GP and dentist in England, receiving regular medical and dental care. This gave them consistency and stability. Outside of school, the children became integrated into family life, spending time with grandparents and relatives. They have also developed their own social lives, making friends and participating in a wide range of activities including ballet, gymnastics, football and scouts.[44]Mother asserts that the children are emotionally more stable in England, describing them as calmer, happier, and more carefree. She suggests they feel at home here whereas their connection to Peru has become distant in comparison.[45]The Court found Mother to be a straightforward witness. Her oral evidence was clear and consistent with her written statement. She remained firm that she had originally intended to remain in England for a holiday of just 3 months, and did not finally decide to stay permanently until July 2025. She did however accept that she had begun to think it may be better to remain in England following the children starting school and seeing how they were getting on. She remained clear however that she had been unsure about the long-term and was focused on the surgery and her recovery. She was able to give cogent reasons for why she reached a final decision to stay in July 2025: she could see how settled, stable and happy the children were, and Father was now in the country and appeared to be open to staying. Indeed, she identified father’s arrival in the country as being the instigator for her decision to remain.[46]She fairly accepted it was difficult to say whether father had positively agreed to them staying in England after 31st December 2024, with some messages appearing to suggest he wanted them to return and others appearing to suggest he agreed.[47]She was also fair and frank in her evidence regarding the importance of the children’s relationship with their father, readily accepting that they missed him and contact with him had been daily unless he was working. She gave spontaneous evidence that the children would be very sad and worried to be separated from their father.

Decision:

[48]It is important to reiterate that the question for the court is not whether father had agreed to the children residing permanently in England. The question is whether the children were wrongfully retained here, and, if so, on what date.[49]In determining that question, the messages, alongside the parents’ evidence is highly instructive. Each parent has extracted individual messages which they seek to rely on to support their particular case. Taken out of context the messages are of limited assistance. The messages must be looked at in the round. In general terms, they depict two parents trying to work through the implications of their separation and what it means for where they and the children should live. Both present as uncertain. Father in particular presents as trying to find an agreed way forward, with an openness to him coming to England to reside with the children here. He was anxious to speak to the children about how they felt about matters before reaching a concluded view.[50]The court is satisfied on the balance of probabilities that there was no wrongful retention of the children until 5th October 2025 when Father clearly demanded they be returned to Peru. I am satisfied that until that date Father, albeit at times with great reluctance, had agreed to them remaining in England.[51]In reaching that conclusion the court has reminded itself that it should approach the messages with a clear mind to the “common-sense realities of family life and family breakdown”, focusing on the “reality of the family’s situation” and that whilst consent must be clear and unequivocal, it need not be given in writing or in particular terms. It may be manifested by words and/or inferred from conduct.[52]The first disputed issue is whether there was any repudiatory retention of the children by Mother prior to 30th December 2024. In his skeleton argument, Mr Gration KC suggests for the first time in these proceedings that such a repudiatory retention could have occurred from October 2024 when mother first sought a divorce from the father. Thereafter it is suggested she sought extensions to their stay on a false basis so that father would not be ‘tipped off’ as to her true intentions. It is suggested that her decision to enrol the children in school was an objectively identifiable act manifesting the repudiation.[53]The fundamental difficulty with that argument is that father accepted in his oral evidence that mother had in fact asked him for a divorce before she left Peru and the October WhatsApp messages regarding divorce do not therefore hold the significance suggested by Mr Gration KC. Mother thereafter has provided clear cogent reasons for enrolling the children in school on the basis of an extended temporary stay. School enrolment is not explicable only on the basis of a decision to permanently remain. Furthermore, the court is satisfied on the basis of Mother’s evidence that she did not in fact finally decide that she would not return to Peru with the children until July 2025. Until that point, whilst mother accepts she was considering making the move to England permanent, she had not reached a decision. She wanted to see how things went. There are a number of WhatsApp messages in which her lack of a determined position is made clear: 1/12/2024, 3:17 p.m. - Father: Your plan is to stay 1/12/2024, 3:17 p.m. - Father: Ok 1/12/2024, 3:17 p.m. - Mother: I didn’t say that 1/12/2024, 3:22 p.m. - Mother: I don’t have plans 26/01/2025, 12:06 a.m. - Father:I don’t want to bother you. The only thing I want and have wanted from the beginning is not to distance myself from my children and you and your situation are making that happen. 26/01/2025, 12:08 a.m. - Mother:I said we’ll see. There’s no imposition[54]The court is thus satisfied there was no repudiatory retention.[55]The next question is whether Father consented to the children remaining in England beyond 30th December 2024. The Court is satisfied looking holistically at Father’s words and actions that he consented to an open-ended extension beyond 30th December 2024, and no set date was provided for the children’s return.[56]When considering the WhatsApp messages passing between the parties in advance of the initially agreed return date of 30th December 2024, there are messages that both support and undermine the fact of agreement. The sense of the messages is that father was upset at the situation and trying to understand what mother’s intentions were. Ultimately however, he accepted that the children would need to stay for about 6 months whilst mother undertook the surgery.[57]The implications of mother’s surgery was first discussed in early December 2024: 1/12/2024, 12:34 p.m. - Father: Is the thing with your ankle definite? 1/12/2024, 12:35 p.m. - Mother: Yes I just need to set the date 1/12/2024, 12:35 p.m. - Father: Ok and when are you thinking of doing it. 1/12/2024, 12:36 p.m. - Mother: I am thinking about the best date 1/12/2024, 12:37 p.m. - Father: What does the best date mean? 1/12/2024, 12:37 p.m. - Father: I suppose the sooner the better. 1/12/2024, 12:39 p.m. - Mother: No. I still have to wait 2 to 3 months for availability. But I am seeing where we are going to stay 1/12/2024, 12:40 p.m. - Father: I suppose after your operation there’ll be some recovery time how long have they recommended… 1/12/2024, 12:44 p.m. - Mother: One month but after that I will need physiotherapy for a few more months 1/12/2024, 12:44 p.m. - Father: Can the physiotherapy be in Peru 1/12/2024, 12:44 p.m. - Mother: No 1/12/2024, 12:45 p.m. - Father: Mm right. 1/12/2024, 12:54 p.m. - Father: If your operation is not for another three months they can come and stay with me… 1/12/2024, 12:57 p.m. - Father: Mm haven’t you considered bringing them to me and leaving them with me? 1/12/2024, 12:58 p.m. - Father: They have a home here 1/12/2024, 12:58 p.m. - Father: And in three months I can save up enough to stay with them without any problem 1/12/2024, 12:59 p.m. - Father: Because I also considered traveling if you had the operation. 1/12/2024, 1:03 p.m. - Mother: They have a home here anyway. We are not going to be left homeless 1/12/2024, 1:07 p.m. - Father: I think it would be easier for you not to have to take care of them when you have your operation 1/12/2024, 1:09 p.m. - Father: Think about what is best for them and their relationship with their father 1/12/2024, 1:09 p.m. - Father: They have their home here 1/12/2024, 1:11 p.m. - Father: They won’t be in someone else’s house or in some rented house who knows, there are some nasty places in the UK and I don’t think they deserve that. 1/12/2024, 1:40 p.m. - Mother: It’s not possible for them to return. Here we’ve got family support, healthcare is free, so’s school, and soon the house will be sorted. Right now, I have to put my health first. 1/12/2024, 1:40 p.m. - Father: I agree about your health 1/12/2024, 1:41 p.m. - Father: But my relationship with them is still important.[58]Father was clearly concerned that mother was intending to remain in England. He did not however raise firm objections to such a plan. Indeed, he made it clear he was open to the children remaining permanently in England, albeit with significant doubts. He began making plans for how he could deal with the house and their pets: 1/12/2024, 1:41 p.m. - Father: Or are you planning to stay live in the UK for good? I think I am entitled to know 1/12/2024, 1:47 p.m. - Father: What I see is that the time you said you were going to stay for a year is getting longer, now they’re going to go to school, meaning they’ll make friends and it’ll get harder and harder for them to want to come back. I don’t want to think the worst, Mother….. If you’re thinking of staying in the UK for good, which it seems like you are, I’m going to travel and I’ll have to find a way to be close to them 1/12/2024, 1:57 p.m. - Father: Take care and think about the best solutions for this time and be honest with me, I’m their dad If you don’t change your mind I’ll start sorting out my trip to stay with them when you have your operation. I hope you make this decision easier for me. It’d be good if you said whether you’ve already decided to stay the UK for good Because it’d make life much easier if you were upfront. There are people asking about the house. 1/12/2024, 2:59 p.m. - Father: There are two people interested in the house, they’re calling me right now, I haven’t given them an answer because I don’t know what your plan is. 1/12/2024, 2:59 p.m. - Father: Your dad can make a power of attorney letter at the embassy and I can sell it. 1/12/2024, 2:59 p.m. - Father: You tell me they’re going to school, so that means you must be thinking of staying for good. 1/12/2024, 3:00 p.m. - Father: I think it makes no sense to make things even more difficult 1/12/2024, 3:00 p.m. - Father: Let’s not waste time, I’m not against my kids living there 1/12/2024, 3:00 p.m. - Father: I understand the benefits 1/12/2024, 3:01 p.m. - Father: But I want to see how I can be close to them. 1/12/2024, 3:03 p.m. - Father: Let’s talk and reach a conclusion so I know what to do. I’ve got a dog waiting for them —if they’re not coming back I’ll give it up for adoption, same with the chickens and the rabbit, so help me decide. 1/12/2024, 3:04 p.m. - Father: I want to help please 1/12/2024, 3:04 p.m. - Father: I want to do what’s best for my kids 1/12/2024, 3:07 p.m. - Mother: We’re staying until my foot is better. They were going to go to school there and they wanted to go, so I’m looking at applications. 1/12/2024, 3:07 p.m. - Mother: Now if everything goes well I think it’s better that we live here 1/12/2024, 3:08 p.m. - Father: Sure I understand 1/12/2024, 3:08 p.m. - Father: So what have you thought about my kids and me have to ask, beg, assume just to get you to tell me if you’re planning to stay for good please.[59]Although Father offered to pay for the family to return to Peru, mother was clear they would need to remain until after her operation. Father at times insisted on knowing when the children would return but appeared to accept that the mother would need to remain for her operation and the consequence that the children would be in England for another 6 months. Again, he indicated he was actively making arrangements in Peru to reflect the children being in England for such an extended stay (most significant messages in bold) : 2/2024, 9:52 a.m. - Father: I will get you your return flight to England 2/12/2024, 9:53 a.m. - Father: When do you want the money 2/12/2024, 9:53 a.m. - Father: No, actually I will buy your return flight 2/12/2024, 9:54 a.m. - Mother: No, we are staying here now until my operation 2/12/2024, 9:54 a.m. - Mother: I have to do several appointments before the date 2/12/2024, 9:54 a.m. - Father: You see you tell me something and it’s not true 2/12/2024, 9:54 a.m. - Father: Ok 2/12/2024, 9:56 a.m. - Father: Then let’s talk, it’s not right for you to say I’ll have the operation and we’ll see 2/12/2024, 9:57 a.m. - Father: Have the operation and come back after two months 2/12/2024, 9:58 a.m. - Father: And I’ll see our children, we’ll talk with them, if they want to go to the UK to live and understand what it means I won’t keep them here against their wishes 2/12/2024, 1:21 p.m. It would be so easy to tell each other everything and work together from that. I understand about your operation and now that I see more clearly that you should stay until the operation because I believe what you’re saying, I hope it’s true… 10/12/2024, 11:42 a.m. - Father: When are they coming back. 10/12/2024, 11:42 a.m. - Father: I want to see the flight tickets they’ve got. 10/12/2024, 11:44 a.m. - Father: Give me dates please. 10/12/2024, 11:44 a.m. - Mother: They eat really well. I’m working and I’ve got more than enough for food. 10/12/2024, 11:44 a.m. - Father: I want to see the flight tickets 10/12/2024, 11:45 a.m. - Father: And return dates 10/12/2024, 11:47 a.m. - Father: Flight tickets and return dates 10/12/2024, 11:48 a.m. - Father: If they don’t have a return date I’ll travel to bring them back. 10/12/2024, 11:48 a.m. - Father: Who’s going to look after them while you recover. 10/12/2024, 12:11 p.m. - Father: Return dates as shown on the flight tickets please, and the information I asked for. I assume this is because of your operation since here they’ve got a house. I’m going to check school places at S school, I’ll keep Luna and the cats for when they come back, which should be in six months max. 10/12/2024, 1:18 p.m. - Mother: These are the flights for 31 Dec. I haven’t changed them because I don’t know when my treatment will be finished. 16/12/2024, 2:55 p.m. - Father: I’m asking because there’s a couple, friends of Y, who want to rent the house... and I want to know when they’re coming back, so if needed we can make a contract based on their return It’s handy for us because they could look after the cats and Luna. 16/12/2024, 4:31 p.m. - Mother: We’ll be here at least 6 months. The surgery is 2–3 months and then another 2–3 months of recovery and physio 16/12/2024, 4:45 p.m. - Father: Ok, so shall we rent it out for 6 months? 16/12/2024, 4:46 p.m. - Father: When will you have the return flight date? 16/12/2024, 4:56 p.m. - Mother: Yes 16/12/2024, 4:57 p.m. - Mother: I don’t know, I want to know the surgery date first so I can calculate properly 16/12/2024, 5:00 p.m. - Father: Ok, let me know please 16/12/2024, 5:00 p.m. - Father: As soon as you know 16/12/2024, 5:19 p.m. - Mother: ok[60]Messages passing between the parties in the immediate weeks following the children remaining in England are also instructive as regards Father’s actual position. There is no message in which he clearly sets out his objection to the children’s continued presence in England or demands that they be returned to Peru. There are a number of messages in which he sets out his doubts and uncertainty regarding them remaining in England. There are however also a number of messages in which he is openly and positively exploring the children remaining permanently in England (again, most significant messages in bold): 26/01/2025, 12:02 a.m. - Father:I don’t have time to look for the messages but your comment was I’m going to stay until my recovery and a few months after that, I’m going to look at whether we stay here for good. That is an imposition 26/01/2025, 12:05 a.m. - Father: Now I just told you that I could look into travelling but your comment was the truth you’re going to see how you get on and you’re looking at where to stay… that’s not helping make it possible for your children to see their father. You know that to go to your country I require an invitation and maybe a place to stay, so you don’t want to make it easier for your children to see their father. 26/01/2025, 12:08 a.m. – Mother:I said we’ll see. There’s no imposition 26/01/2025, 4:55 a.m. - Father: Only if it turns out that they don’t want to come back and want to live there, because for me what they want is important... I don’t think it’s right to say that they’re kids so they shouldn’t have an opinion or be listened to... only if we all decide that they want to live there for good would it then make sense to sell the house…but that would mean that I would have to go to the UK as well to be able to share our time with them and to be with them. 26/01/2025, 5:02 a.m. - Father: It’s really hard for me to go back to working in the mine and well I don’t want you to sympathise but I do want you to understand that the decision we all made to live in England means a big change for me, but I can deal with it to be close to my kids. 26/01/2025, 5:19 a.m. - Father: Now it’s already been two months since you decided to stay because of your operation. I suggested that you come back by yourself and I’d take care of my kids, but no… you imposed your decision on me and I have to accept it and wait until who knows when you decide whether to come back or not… that’s not right. Your health is no longer my responsibility, but because of your health I have to be away from my kids for over a year… I suggested travelling and you didn’t want to… now I hope you’re more clear, I can’t keep waiting for your hospital to give you a date that I don’t know when it’ll be, and from there the time for your recovery, which I don’t know either… who’s going to look after my kids? I think I’m the most suitable person to be with them. You’re imposing on me that my kids will be looked after by your dad, your mum, your sister, but that’s not right, that’s wrong. You have to accept that because of your health we’re all being affected, so you need to make a sacrifice and let me take care of my kids… I’m planning to travel for that. 26/01/2025, 3:22 p.m. - Father: Now I just want us to talk about what to do for the best for my kids D, K and P … I’m grateful to you for these 10 years as a family and I wish you the best in your life… Let’s see if living there is what’s best for everyone. I’ve been thinking a lot and I see that it’s a good option. There’s only one house here, there’s no family nearby, and I wouldn’t be with them all the time either because I’d be working… education is also better in your country. Well, I think the plan, at least mine, was always to go and live there. It would be good to talk to my kids and find out what they want… obviously if I have to see about moving to the UK, maybe at the beginning I’d need your help with a place and an invitation, and after that I know I can get settled… we could sell the house, the car, the motorbike, well the motorbikes, and everything, and tidy up the house a bit more so it can be sold faster and for a better price.[61]Father’s actions thereafter are also significant. As confirmed in his oral evidence, in March of 2025 he began to take practical steps to enable him to travel to England for an extended visit. He rented out the family home for 6 months in order to save funds, made arrangements for the care of the family pets and resigned from his employment. None of those steps are consistent with Father travelling to England for the purpose of bringing the children back to Peru either because he was of the mindset that they should have been returned at the end of December 2024, or because he was expecting them to be returned at a date in March or May 2025. Indeed, renting out the family home and thereby depriving the family of accommodation is inexplicable if he genuinely believed the children would be returning with him. He also discussed selling various possessions in Peru: 22/4/2025, 2:39 p.m. - Mother: F’s interested in the fridge and I’m going to offer it to her for 2 thousand soles. When will you be in Q? Or they can pick it up from the tenants if they want 22/4/2025, 4:30 p.m. - Father: Before traveling to the UK, I have to pass through Q. And when I return from the UK I’ll be going back to Q and I’ll be using the kitchen and everything in it For now, I think what you can sell is your car, your personal stuff, and grandpa’s motorcycle.[62]The court also notes Father’s concession in his oral evidence that he agreed to an open-ended extension to the children remaining in England beyond 30th December 2024. That concession is consistent with his messages and actions.[63]Taking all of the evidence together, the court is therefore satisfied on the basis of Father’s words and actions that he agreed to the children remaining in England beyond 30th December 2024 on an open-ended basis, being open to exploring whether it was best for the family to remain permanently in the UK. No date was set for the children’s return.[64]It follows that there was no wrongful retention of the children on 30th December 2024 or in March 2025 or May 2025.[65]The next question for the court is whether there was a wrongful retention of the children by Mother on 18th July 2025 when she informed Father that she intended to remain in England with the children. Again, her decision would only amount to a wrongful retention if Father did not consent to the children remaining.[66]The messages sent by Father in July 2025 are again instructive. There is again no message in which Father objects to the children remaining in England, indicates he does not agree or demands their return to Peru. The messages are in fact clearly to the contrary, with Father responding that he will take steps to resolve his immigration and employment status so that he may also remain: 18/7/2025, 11:12 a. m. - Mother: We’re not going to return to Peru but I can help in whatever I can so that you maintain your relationship with them 18/7/2025, 11:14 a. m. - Father: Hmm, can I go see him? It would depend on whether he gets better, I suppose. If they’re going to travel, I’d like to spend more time with them... I have only travelled here to be with them. I have to go back soon... 18/7/2025, 11:20 a. m. - Father: Ok thanks.. I’m going to see an immigration lawyer in a few days. I think if you decide not to return, I have no other option but to see if they let me work so I can come back soon... or stay here, I don’t know... If you can recommend an immigration lawyer or a website I’d appreciate it.[67]It is also significant in the court’s view that the parents settled into a routine of sharing the care of the children and Father agreed to them having a holiday in Spain. Those actions are again entirely contrary to a parent who objected to their presence in England and was insisting on their return to Peru.[68]The court is again satisfied in the basis of Father’s expressed words and actions that he agreed to the children remaining in England.[69]In the court’s judgment, Father’s clear opposition to the children remaining in England developed in September 2025, culminating in Father seeking legal advice and unequivocally demanding their return to Peru on 5th October 2025. That change in Father’s position is in the court’s judgment consistent with the deteriorating picture on the ground: the growing tension in the relationship between the parents, disputes over P’s school attendance, the difficulties that emerged in the living arrangements for the children, and the maternal family withdrawing the practical support from Father that had made his continued stay in England practically tenable. On the balance of probabilities, it was these events that led Father to withdraw his agreement to the children remaining in England and demanding their return to Peru.[70]On the balance of probabilities, the Court therefore finds that any alleged wrongful retention of the children occurred on the 5th October 2025 when Father clearly communicated his withdrawal of consent to Mother.

Habitual residence:

[71]The relevant date at which the habitual residence of the children thus falls to be considered is 5th October 2025. The retention of the children in England is only wrongful for the purposes of the Hague Convention if the children, as at that date, remained habitually resident in Peru. As the authorities make clear, that is a question of fact to be determined by the court.[72]The court reminds itself that for habitual residence to be established the residence of the child must reflect some degree of integration in a social and family environment. No minimum period of time is required to establish habitual residence. The necessary degree of integration can develop quite quickly. The key consideration is the stability of residence.[73]The court also has to consider the children’s practical connection with the country in which habitual residence is now claimed. Relevant matters will include: the reasons for the parents’ move to and stay in the jurisdiction; the child’s nationality; the child’s schooling; the child’s linguistic knowledge; family and social relationships; whether there is a right of abode; and whether there are durable ties with the country of claimed habitual residence.[74]Looking at the children’s connection with England, it is of course significant that they are dual British nationals, they speak English and by October 2025 they had been living in England since July 2024, so some 15 months. The court is cognisant of the fact that during this period they lived with some uncertainty as to how long they were to remain in this jurisdiction. In their discussions with Cafcass the children were clear that they had understood they were coming to England for a holiday and then ‘just stayed’. At least until their father joined them in July 2025, and although very frequent video contact was taking place, they were also living with the fracture in their relationship with him and the anxiety and uncertainty as to how that was going to be resolved in the future. As the mother readily conceded, they missed him. The children’s uncertain relationship with their father given he initially remained in Peru and has no right to reside in the United Kingdom is an important consideration impacting on the children’s stability.[75]However, during this lengthy period living in the England, it is clear the children have been able to establish significant familial and social relationships. They have a sense of belonging within their maternal family, having benefited from their support since arriving here. After initially experiencing the instability of moving between the homes of the maternal grandmother and maternal grandfather, in November 2025 the mother acquired her own independent accommodation for herself and the children. The older children are settled and doing extremely well within school, which they commenced in December 2024, making friendships and engaging in a range of social extra-curricular activities. The school reports evidence how well the children have transitioned to mainstream education here. School has been more challenging for P, but he is being supported to feel more comfortable in that environment. The children have all been registered with GPs and a dentist since October 2024. Their life here is stable. There is a very significant degree of integration into English daily life. Their sense of stability has undoubtedly been strengthened by the presence of their father in England since July 2025, and the role he has been able to play since then in sharing their care.[76]The court must then compare these factors with the children’s connection in Peru. Undoubtedly, prior to coming to England in July 2024, the children were wholly integrated into daily life in Peru. They were all born there and have only ever lived in Peru. However, in the 15 months before October 2025, the children’s ties to Peru had weakened and become more distant. Their family home had been rented out and arrangements made for the care of pets. Whilst they have paternal family in Peru, the relationships have dwindled since they have been in England. They were not in education when they left Peru in July 2024 and there are no school places currently identified and secured for them. Although they had friendships with local children, it is unclear the extent to which they have been maintained.[77]Given the ages of the children, the position of the parents is also of relevance. Children will usually, but not necessarily, have the same habitual residence as the parent who cares for them. Parental intention is relevant but not determinative. Mother is settled, happy and secure in England, where she was born and raised and all her family resides. She has now been employed here since June 2025 and is fully integrated. Although mother’s original intention was for her and the children to be here for a holiday, it has been her clear intention since July 2025 to remain here and make this her and the children’s permanent residence. That intention was known unequivocally by Father from 18th July 2025. Father, although subject to considerable immigration uncertainties, has now been living here for 10 months. He has no employment in Peru at the current time. Since the children have been residing here, he has been open to remaining permanently in England with them.[78]The children’s understanding of their current circumstances is somewhat uncertain. Their discussions with Ms Huntingdon revealed a degree of caution and ambivalence about whether they wished to remain living in England. On balance, it was the view of Ms Huntingdon that D and K wished to remain here, albeit with their father living here as well. P expressed a wish to return to Peru.[79]In considering these various factors, the court is satisfied, and finds as a fact, that by 5th October 2025, England had become the children’s habitual residence, and indeed had been for some time. Over the course of the 15 months since they arrived here, they had developed strong and lasting ties within this jurisdiction, and had become fully integrated into English life. They had acquired the necessary degree of stability.[80]That being the court’s conclusion, there has been no wrongful retention of the children from their state of habitual residence for the purposes of the 1980 Hague Convention, and the father’s application for summary return must be dismissed.[81]For the avoidance of doubt, if the court were wrong as to the children’s date of retention and habitual residence, the court would have been satisfied on the basis of the WhatsApp messages set out above (and in accordance with the principles set out in Re H (Abduction: Acquiescence) [1997] UKHL 12) that Father in fact consented to the children remaining here until 5th October 2025. Mother thus discharges the burden of establishing the defence under article 13(a) and a discretion as to whether the children should be ordered to return to Peru arises. In such circumstances, and in light of the children’s length of time in this country, their integration into day-to-day life, the lack of any stable accommodation, financial support or educational provision in Peru and the distance we now are from the core objectives underpinning the Hague Convention, the court would not have exercised its discretion to order their return. The jurisdiction of England and Wales is now better placed to exercise its welfare jurisdiction for the children. Harris J 21st May 2026