Supreme Court of Japan (First Petty Bench)
Superior Appellate Court
Presiding Judge, Justice Atsushi Yamaguchi; Justices Masayuki Ikegami, Hiroshi Koike, Katsuyuki Kizawa, and Takuya Miyama.
UNITED STATES OF AMERICA
15 March 2018
Case remitted to lower court
Non-Convention Issues | Issues Relating to Return
Case remitted to lower court
Art. 2(1) of the Habeas Corpus Act (Law No 199 of 30 July 1948); Arts 4 and 5 of the Habeas Corpus Rules (Rules of the Supreme Court No 22 of 21 September 1948); Arts 26, 28, 134(1), 137, 138, 140(1) of the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (Law No 48 of 19 June 2013); Art. 89 No 2 of the Rules of Procedure for Case relating to Return of Child under the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (Rules of the Supreme Court No 5 of 13 November 2013).
1 child wrongfully removed at age 11 years and 3 months ― National of Japan and the United States ― Married parents ― Father and mother nationals of Japan ― Father was granted sole custody by a court in the United States after the return order became final and binding ― Child lived in the United States until 12 January 2016 ― Application for return filed with the courts of Japan in July 2016 ― Return ordered and execution by substitute failed (due to the mother’s strenuous resistance and the child’s objection); the father subsequently filed a request for habeas corpus relief ― Main issues: Non-Convention Issues, Issues Relating to Return ― There are special circumstances in which a mature child cannot be seen to be staying with the abducting parent based on his free will, so continued care of the child in defiance of a return order can amount to “restraint” under the Habeas Corpus Act and Habeas Corpus Rules ― Where continued “restraint” by the abducting parent in breach of a return order is “conspicuously illegal”, the requirements of a habeas corpus order are met.
The parents are both Japanese nationals. After their marriage, they first resided in Japan. The first son was born there in 1996 and the daughter in 1998. After the entire family moved to the United States, the second son was born there in 2004. He is a national of Japan and the United States. In January 2016, the mother took the second son aged 11 years and 3 months to Japan without the consent of the father and remained with the son thereafter in Japan. The 1980 Hague Child Abduction Convention entered into force between the United States and Japan on 1 April 2014.
In July 2016, the father filed a petition for return of the second son with the Tokyo Family Court. The judges rendered a return order in September 2016, which became final and binding. Following a petition of the father, in May 2017 a court execution officer attempted to carry out an execution by substitute and sought to persuade the mother to release the child, but she resisted strenuously. The child also objected to being returned and expressed his wish to stay in Japan. The officer closed the case for failure to release the child.
The father petitioned for divorce and custody before the courts in the United States and obtained a sole custody order by August 2017. The child told his attorney that he sincerely wished to stay in Japan after being well settled there, and that he was relieved to be away from the father who could become violent. The mother cared for the son while working as a pharmacist, and the son went to school and had good relationships with his mother, relatives and friends in Japan.
The father filed a petition at the Nagoya High Court for a habeas corpus order, which aims to restore freedoms of an illegally restrained person by expeditious summary proceedings. The petition was dismissed on the following grounds. First, the judges opined that the son had become settled in the social and family environment in Japan and freely expressed his wish to stay there, such that the care of the mother did not constitute a “restraint” under the Habeas Corpus Act and Habeas Corpus Rules. Second, the judges held that, even if the care of the mother constituted a “restraint” under the Habeas Corpus Act and Habeas Corpus Rules, it was not so “conspicuously illegal” as to fulfill the requirements of a habeas corpus order in the light of the circumstances of care and the age and intention of the son. The fact that the return order had become final and binding was not held relevant in this respect.
The lower instance judgment was quashed. The case was remanded to the Nagoya High Court.
Please see the combined analysis of the Court's decision under "Issues Relating to Return" below.
The Supreme Court unanimously quashed the Nagoya High Court (Kanazawa Branch) judgment and remanded the case to the Nagoya High Court.
First, the Justices opined that care of a child who has mental capacity could constitute a “restraint” under the Habeas Corpus Act and Habeas Corpus Rules in special circumstances in which the child could not be seen to be staying with the caregiver based on his free will. According to the Justices, when a child is abducted across borders to Japan, the decision whether to stay with the caregiver has serious consequences and is difficult to make for the child. Moreover, the child often has difficulties in obtaining the necessary and unbiased information to make such a decision, due to the emotional conflicts between the parents, alienation from the left behind parent and being placed in an unfamiliar environment. In the opinion of the Justices, therefore, it was necessary to carefully assess the information the child could obtain and possible psychological influence of the taking parent.
The Justices recognised that, in the underlying case, the son aged 13 had been living in the United States until he came to Japan at 11 years and 3 months, when he did not have adequate mental competence to make the type of decision in question yet. Since then, the child scarcely had contact with the father. Instead, the son largely depended on the mother who was opposed to his return and strenuously resisted the execution by substitute in front of him. In the light of these circumstances, the Justices reasoned that the child had difficulties in obtaining unbiased and objective information sufficient to make up his mind on whether to stay with the mother, and she unduly affected him emotionally. The Justices, therefore, concluded that there were special circumstances in which the child could not be seen to be staying with the mother based on his free will, to the effect that care by the mother constituted a “restraint” under the Habeas Corpus Act and Habeas Corpus Rules.
Second, the Justices opined that, when a child is wrongfully removed across borders to Japan, “restraint” of the child by the taking parent despite a final and binding return order is so “conspicuously illegal” as to fulfill the requirements of a habeas corpus order under the Habeas Corpus Act and Habeas Corpus Rules, unless there are special circumstances that would render release of the child from care of the taking parent extremely inappropriate.
The Justices contended that, in the underlying case, the mother thwarted the execution by substitute and continued to care for the child in breach of the return order. In the absence of the said special circumstances, the Justices held that “restraint” of the child by the mother was “conspicuously illegal”.
Consequently, the Justices decided unanimously that the lower instance judgment be quashed on the ground of clear violation of law or regulation. While holding that the petition for a habeas corpus order be granted subject to the above-mentioned facts, the Justices decided to remand the case to the lower court for further examination, particularly with a view to ensuring the appearance of the child before the court.
Author: Professor Yuko Nishitani