Osaka High Court (9th Civil Division)
Presiding Judge Toru Matsuda; Judges Yoshinori Tanaka and Mari Watanabe
29 August 2016
Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2)
Appeal dismissed, return refused
Art 27 Nos 1-4, Art 28 (1) Nos 3-5 and (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 removed to Japan ― National of Algeria and Japan ― Married parents ― Father an Algerian national, Mother a Japanese national ― Parents married in France in 1998 ― Child born in 2004 and lived in France until 2015 ― Mother removed and has retained the child in Japan ― Petition for return of the child filed with the Osaka Family Court ― Petition dismissed ― Appeal to the Osaka High Court dismissed ― Main issues: Father’s Consent or Acquiescence ― Grave Risk for the Child ― Child’s objection
The father is an Algerian national, the mother a Japanese national. They married in France in 1998 and were living there. The child was born in 2004. The child is a national of Japan and Algeria. The child was enrolled at school in 2010 in France. The father would shout, hit a closet or tear his clothes after drinking since around 2011 and was hospitalized due to alcohol addiction in 2012. The mother reported incidents of the father’s verbal or physical violence to the police several times.
In 2015, when the mother’s mother passed away, she went to Japan with the child with the father’s limited consent and remained there with the child. The child was enrolled at school in Japan in 2015. Despite the father’s attempts to make contact through phone calls or letters, the child wrote back to say that he refused to talk to him. The father is unemployed and is currently in training for a new job.
The father filed a petition for return of the child at the Osaka Family Court. While the judges did not find that the father had consented or acquiesced to the child staying in Japan, nor that there was a grave risk that the return would cause physical or psychological harm to the child, they found that the child, who was then about 12 years old and mature enough to understand the circumstances and express own views, vigorously opposed to being returned to France because of the father and because of the French school where the child had fewer friends than in Japan. Thus, on ground of the child’s objection, the Osaka Family Court dismissed the petition for return of the child. The father’s appeal to the Osaka High Court remained unsuccessful.
Appeal dismissed and return refused
The Osaka High Court judges held that, despite the assertion of the mother that the father consented to or acquiesced in the removal of the child to Japan, there was no evidence for this assertion. The father had consented only to the mother going to Japan with the child for a short period of time for the purpose of the funeral of her mother.
The mother argued that the father’s petition for return of the child be dismissed due to a grave risk that the return would expose the child to physical or psychological harm. However, the Court held that, first, the violent acts of the father did not include direct physical violence towards the child, so there was no risk that the child would be subject to his violence. Secondly, there was no risk that the mother would be subject to violence by the father in such a manner as to cause psychological harm to the child, since there was neither evidence that the father exercised physical violence towards the mother in the child’s presence, nor that the father’s acts of shouting, hitting a closet or tearing his clothes reached a degree capable of causing psychological harm to the child. Third, the judges held that providing care for the child in France itself was not difficult. Although the mother could be arrested in France and hindered from returning there following her wrongful retention of the child, the father, who was living a normal life apart from his alcohol problems and was willing and capable of working, could take care of the child
A Family Court investigating officer extensively interviewed the child when the child was 11 years and 11 months old. The officer confirmed that the child was mature enough to understand his circumstances objectively, build his own opinion and express it in his own words. The child expressed a wish not to be returned to France because of his hatred toward the father and difficulty at school where the child had few friends. The child was much better accustomed to the life with the mother in Japan and had many friends at his Japanese school.
The Osaka High Court judges assessed that the child sincerely expressed his strong wish to stay in Japan. The child arguably not only sought to avoid the psychological burden of returning to France and living with the father, but also compared his school life and friends between France and Japan. The Court reflected on which environment was more advantageous to the child by looking into the future. The child even refused to being returned to France with the mother. In addition, the child was able to explain to the Family Court investigating officer what he did not know or remember and gave a logical explanation about his school life, however when it came to subjects concerning the father, the child became emotional and could no longer give logical explanations. Thus, in the judges’ view, the child can be presumed to have expressed sincere wishes to stay in Japan and cannot be considered to be strongly influenced or induced by the mother. Hence, the judges relied on the child’s objection as a ground for refusal of returning the child pursuant to Art. 28 (1) No. 5 of the Hague Convention Implementation Act.
Author: Prof. Yuko Nishitani