Tokyo Family Court (1st Family Division)
Presiding Judge Humi Hosoya; Judges Saeko Nakai and Ken-ichi Watanabe.
11 December 2018
Settlement of the Child - Art. 12(2) |
Arts 28(1) No 1, 4 and 5 of the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (Law No 48 of 19 June 2013).
3 children habitually resident in Spain ― Father Spanish national, mother Japanese national ― Parents married in 2009 in Japan ― Upon marriage, father adopted mother’s child born out of wedlock in 2006 ― Two children were born within wedlock in 2011 and 2015 ― Parents first lived together in Japan and later relocated to Spain in May 2011 ― Mother brought three children to Japan in May 2017 and notified Father of her intent to divorce and stay in Japan ― Father filed petition for the return of the children to the Tokyo Family Court in October 2018 ― Petition dismissed ― Main issue: Settlement of the children.
The father is a Spanish national, the mother a Japanese national. They married in Japan in 2009. At the same time, the father adopted the mother’s child C born out of wedlock in 2006. Within their marriage, the son D was born in Japan in 2011 and, after the entire family moved to Spain, the daughter E was born there in 2015. The mother removed all three children to Japan on 13 May 2017 and informed the father, 10 days later, of her intent to file for divorce and stay in Japan with their children. The mother declared consensual divorce on 26 May 2017 and continued to reside in Japan with their children past 5 September 2017, when she was supposed to take a flight with them to go back to Spain. After an attempt at mediation failed, the father petitioned for the return of the children to the Tokyo Family Court on 16 October 2018.
Appeal dismissed and return refused.
The Tokyo Family Court dismissed the petition for the return of the children after particularly examining the ground for refusal based on the settlement of the children in the new environment.
The judges noted that children C and D commuted to elementary school in Spain from May 2011 until May 2017, while child E never went to kindergarten or a day care centre there. The children used to spend 2-month holidays in Japan every summer. After being retained in Japan, C and D were enrolled at an elementary school and E at a day care centre. According to an interview by the Family Court Investigating Officer, all the children could speak Japanese, were doing well at school or day care centre, and were accustomed to Japanese culture and life.
The judges considered that the mother continued to reside in Japan with their children past 5 September 2017, when they were supposed to take a flight to go back to Spain, so the children’s retention commenced on that date at the latest. It was not until more than one year later that the father filed a petition for the return of the children to the Tokyo Family Court on 16 October 2018. Thus, the judges opined that the ground for refusal was fulfilled owing to the children’s settlement in the new environment, and there was no reason for the judges to exercise discretion to order the return of the children nonetheless.
Author: Prof. Yuko Nishitani