Buscador de jurisprudencia

The mother and the father are both Japanese nationals. They were married in 2001 and lived in the United States. They had 5 children born after the marriage G (born in 2001), B (2003), D (2006), E (2008) and F (2010). The father began to be violent towards the mother in 2009 and in 2011 the couple separated. The mother obtained a restraining order against the father for the third time in 2012, which also provided her with provisional custody rights over the 5 children, allowing her to take care of them except for the father’s agreed access time. In 2014, although his access time was over, the father did not bring the 4 youngest children (B, D, E and F) back to the mother and took them via Canada to Japan. He has resided in Japan since then with the 4 children. 

In 2014, prior to this removal, the mother had instituted divorce proceedings against the father in the United States, in which the spouses had reached a settlement that the mother would obtain sole custody rights after the divorce. Subsequently to the removal, the United States judge rendered a divorce decree, declaring the mother as the sole custodian. The mother eventually filed an application for return of the children under the 1980 Hague Convention at the Tokyo Family Court in 2014. The Convention had entered into force between the United States and Japan on 1 April 2014.

The Tokyo Family Court ordered return of all 4 children to the United States in 2015. The the father argued that the children objected to being returned and there was a grave risk in returning the children but the judges did not find these grounds to be met. The father filed an appeal.  

Appeal dismissed and return ordered. All four children ought to be returned to the United States, as the lower court had correctly decided.

Objections of the Child to a Return - Art. 13(2)

The father argued that B and D had attained an age and degree of maturity at which it is appropriate to take account of their views, and that they objected to being returned to the state of their habitual residence even though their objections primarily focused on specific circumstances or domestic violence that occurred in that state. 

It ought to be considered, however, that the Child Abduction Convention is based on the idea that promptly returning abducted children to the state of their prior habitual residence serves their best interests. This is because, first, a cross-border abduction is deemed to have harmful effects on the children by forcing them to live under a different language or in a different cultural environment and, second, disputes over custody on the merits ought to be determined in the state of their habitual residence where they are socially embedded. Thus, the children’s views to be considered pursuant to Art 28(1) No 5 of the Implementation Act are not geared toward their opinions on the individual circumstances ― such as particular situations or domestic violence ― that occurred in the state of their habitual residence, but rather toward the question of “whether the children object to being returned to their state of habitual residence“.  

In the underlying case, neither B nor D can be held to object in this sense to being returned to the United States. Even if B were mature enough to have his views heard, separating B from the other siblings and letting only B stay in Japan would entail a grave risk of causing harm to B. Given that B would presumably be sufficiently protected after return with the assistance of the Department of Human Services (DHS), the courts and other institutions in the United States, ordering the return of the children serves B’s interests.

Grave Risk - Art. 13(1)(b)

The father asserts that there is a grave risk of causing harm to the children by returning them to the United States under Art 28(1) No 4 of the Implementation Act. 

However, the factors indicated by the father do not suffice to justify his allegations. First, the mother has a good chance to obtain a visa to legally stay in the United States, enabling her to take care of the children properly. Second, though the eldest child G once had fight with B and caused a bruise at B’s leg, there is no evidence that G caused injuries to B otherwise or continuously, nor did the fight in the past go beyond a usual sibling quarrel. Third, there is no evidence that return would cause psychological harm to the children. 

Author: Prof. Yuko Nishitani