Osaka High Court (9th Civil Division)
Presiding Judge Toru Matsuda; Judges Takahiro Hiwada and Ayako Takahashi
15 September 2017
Grave Risk - Art. 13(1)(b) | Acquiescence - Art. 13(1)(a) | Acquiescence - Art. 13(1)(a)
Appeal dismissed, return ordered
Arts 27 Nos 1-4, 28(1) Nos 2-4 and 28(2) of the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (Law No 48 of 19 June 2013).
1 child wrongfully retained in Japan ― National of Singapore and Japan ― Married parents ― Father national of Singapore – Mother national of Japan ― Child lived in Singapore until 2016 ― Application for return filed with the Central Authority of Singapore in 2016 ― Petition for return filed with the courts of Japan in 2017 ― Return ordered ― Main issues: acquiescence and Art. 13(1)(b) grave risk exception to return – There is no grave risk in ordering the return of the child in cases involving domestic violence between the parents where a protection order is in place in the requesting State and where there is no evidence that any violence has been committed against the child ― It cannot be said that a parent has not actually exercised rights of custody at the time of removal if he did not know the whereabouts of the child at that time ― A parent has not approved of or acquiesced in the retention if he filed a return application with the Central Authority of the requesting State about one month after coming to know of the removal, and with the courts of the requested State almost one year after the removal, respectively.
The parents are a Singaporean father and a Japanese mother who were married in 2014 and living in Singapore. The daughter, born in 2014, is a national of Singapore and Japan. In 2016, following acts of domestic violence committed by the father, the mother moved to a shelter with the child and obtained a personal protection order from the Family Court in Singapore. She then took the child to Japan in 2016 and was still residing there at the time of the decision. The father filed an application for the child’s return with the Central Authority of Singapore in 2016, which was transmitted to and approved by the Central Authority of Japan. The mother requested a divorce from the father, but he refused. The father subsequently filed a petition for return with the Osaka Family Court in 2017. During that time, the father had access to the child in Singapore and Japan.
The Osaka Family Court ordered return (19 June 2017, Case Name: 2017 (Ie Nu) No. 3). The judges did not accept the arguments raised by the mother that there was a grave risk of exposing the child to physical or psychological harm in ordering her return, that the father was not exercising rights of custody at the time of the child’s retention or that he subsequently approved of or acquiesced in the retention.
Author: Prof. Yuko Nishitani
The decision and reasoning of the lower court was affirmed by the Osaka High Court. The appeal was dismissed and return ordered.
Firstly, the mother contended that the father was exercising violence, creating a grave risk of harm to her life and body, and may well continue exercising such violence in a way that would expose the daughter to psychological harm by witnessing it (given that the Singaporean personal protection order allegedly did not have the effect of preventing the father’s violence against the mother). Secondly, the mother asserted that providing care for the daughter in Singapore would be difficult, as the daughter was claimed to have already fully settled in Japan, return would cause her serious physical and psychological harm, and the father would use violence against the daughter also in the future.
However, the Court held that these arguments did not have sufficient grounds. With regard to the first point raised by the mother, the father was not constantly exercising serious violence against her and the Singaporean personal protection order was found to have had deterring effects. As for the second point, it was held to be adequately possible for the daughter, now 2 years and several months old, to become settled again in Singapore. Ordering her return could not be considered to cause serious physical or psychological harm to her. Nor was there any evidence that the father had been violent towards her. The expert opinion and the medical certificate submitted by the mother could not be accepted, on the grounds that they did not provide a diagnosis resulting from substantive medical examination, but were limited to stating a mere presumption or possibility of causing serious physical or psychological harm to the daughter by returning her to Singapore.
The mother further asserted that the father was not actually exercising rights of custody after she left home and moved to a shelter with the daughter. However, the Court noted that the only reason why he could not exercise his rights of custody was that the mother and daughter did not reveal their whereabouts while hiding themselves in the shelter. Considering that the father did not give up his rights of custody, the alleged ground for refusal was held not to apply.
Subsequent approval (Art 28(1) No 3 of the Implementation Act)
The mother contended that the father subsequently approved of or acquiesced in the retention of the child in Japan, as he did not immediately file a petition for return with the courts of Japan, only doing so after almost one year had lapsed since the removal. As a matter of fact, however, the father filed a return application with the Central Authority of Singapore about one month after coming to know about the removal of the child in 2016. The return application was transmitted to and approved by the Central Authority of Japan. The mother requested a divorce from the father, but he refused. He then had access to the child the following year in Japan. The father eventually filed a petition for return with the Osaka Family Court in 2017. Given these circumstances, the father cannot be held to have subsequently approved of or acquiesced in the retention, even though he filed a petition for return almost one year after the removal.