Buscador de jurisprudencia

The parents and the children resided in France. The father filed for divorce in April 2017 in France. The court ordered as interim measures on 21 December 2017 that the parents exercise joint custody and live separately, and the children reside in the mother’s house in France. The parents separated on 15 February 2018. The father removed two of their children to Japan on 29 July 2019. On 11 September 2020, the Osaka Family Court ordered the return of the children (Case Name: (Ie Nu) No. 5 and 6), which became final and conclusive on 9 December 2020 (“return order”).

In France, the court rendered a divorce decree on 23 November 2020. In the divorce proceedings, both parents were represented by their respective attorneys, one child was heard and the report of hearing the children by the Osaka Family Court Investigating Officer was considered. The French court opined that the return order of the Osaka Family Court would become ineffective, on the grounds that the parents were to exercise joint custody, but the children were to reside at the father’s home in Japan in their best interests and the mother was only granted visitation rights. The court order was declared provisionally enforceable. The mother filed an appeal on 14 December 2020.

While the divorce case was pending in France, the Osaka Family Court granted the mother’s claim for indirect compulsory execution of the return order on 1 February 2021, ordering the father to pay 10,000 JPY per child every day unless returning the children to France within 14 days (Art. 134 of the Implementation Act). Upon appeal, the Osaka High Court reversed the decision to honor the custody decision of the French court on 14 April 2021. The judges held that this was in line with the objective of the 1980 Convention to return the children to the state of habitual residence to enable the courts there to determine custody issues on the merits and did not contradict Art. 28 of the Implementation Act (Art. 17 of the 1980 Convention). Moreover, the court opined that returning the children to France would only burden them to come back to Japan again. The mother appealed against this decision to the Supreme Court. In the meantime, the children have been returned to France following compulsory execution by substitute.

The Supreme Court upheld the Osaka High Court decision and dismissed the mother’s claim for indirect compulsory execution, on the grounds that the children have already been returned to France following compulsory execution by substitute.

Issues Relating to Return

The Supreme Court upheld the Osaka High Court decision and dismissed the mother’s claim for indirect compulsory execution. The reason was that the children had already been returned to France following compulsory execution by substitute (Art. 134 of the Implementation Act). In the court’s view, because the purpose of compulsory execution was already fulfilled, the underlying claim for indirect compulsory execution became unlawful.

Justices Yasumasa Nagamine and Eriko Watanabe delivered a concurring opinion. In their view, although the Osaka High Court dismissed the mother’s claim for indirect compulsory execution considering the custody order of the French court, this may conflict with the purpose of the 1980 Convention and the intent of its Art. 17 and the corresponding Art. 28(3) of the Implementation Act, which prohibits the court from dismissing the petition for the return of child only on the grounds that a custody decision on the merits has been rendered in a foreign country. 

Author: Prof. Yuko Nishitani