7 July 2016
Résidence habituelle - art. 3 | Droit de garde - art. 3
Recours rejeté, retour refusé
Arts 27 No 3, 28(1) Nos 1-4 and 6 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 (UK national) removed from Singapore to Japan ― Parents married in 2010, living together mostly in Singapore and briefly in Japan ― Father Singaporean national, mother Indian national ― Divorce in 2014 ― Father provided with access right, Mother with right to primarily care for the child and freely relocate with the child to Japan ― Mother went to Japan with the child and returned to Singapore in 2014 ― Failed access, Father sought a modification of the relocation clause and the modality of access ― Mother definitively removed the child to Japan in 2015 ― Assistance of the Central Authority of Japan revoked in 2016 ― The father filed a petition for the child’s return to the Osaka Family Court in 2016 ― Petition dismissed ― Appeal dismissed and return refused by the Osaka High Court in 2016 ― Main issues: Habitual residence of the child ― Rights of custody of the father or the Singaporean court.
The father is a Singaporean national, the mother an Indian national. They married in 2010 in Singapore and the child (U.K. national) was born in 2011. They mostly lived together in Singapore, and briefly in Japan in 2013. As their relationship deteriorated, the father returned to Singapore alone.
The father petitioned for divorce to the Singaporean courts in 2014. The mother re-entered Singapore with the child, who started to go to school there. Pursuant to the parents’ agreement, the judge declared divorce and joint custody over the child, providing the father with access right, and the mother with right to care and control the child and to freely relocate with the child to Japan at her expense. The mother returned to Japan with the child.
Later in 2014, the mother came back to Singapore and signed an employment contract as well as a two-year lease contract. As she allegedly prevented the father from seeing the child, the father filed a petition to the Singaporean courts in 2014, seeking a modification to the relocation clause and the modality of access. While the case was pending, the mother removed the child to Japan in 2015. The mother declared in her affidavit that she was free to relocate, and that her return to Singapore was meant to be only for a couple of months. The father did not submit an affidavit against his promise, and further withdrew his petition.
In 2016, the father filed an application for the child’s return with the Central Authority of Singapore, which was further transmitted to the Central Authority of Japan. However, assistance was revoked due to inappropriate indications in the application. The father petitioned for return of the child to the Osaka Family Court. Upon dismissal, he appealed to the Osaka High Court, but remained unsuccessful.
Appeal dismissed and return refused.
The Osaka High Court opined that, while the mother had moved with the child to Japan after reaching an agreement on divorce in 2014, she re-entered Singapore with the child to start working there and the child started to go to school. The habitual residence of the child was transferred from Japan to Singapore. Thus, at the time of removal to Japan in 2015, the child was habitually resident in Singapore.
The Osaka High Court held that neither the father nor the Singaporean court had rights of custody pursuant to Art. 27 No. 3 of the Hague Convention Implementation Act at the moment of the child’s removal to Japan in 2015. First, the judges denied the father’s rights of custody, because the father did not have the right to determine the child’s residence due to the relocation clause in the divorce decree that authorized the mother to freely take the child to Japan. Nor did the father have “inchoate rights of custody” at common law, on the ground that he was not actually taking care of the child. Second, the judges considered possible rights of custody of the Singaporean court. They reasoned that, at common law, rights of custody in a court are provided in light of the nature and content of the petition, as well as the development of the procedure. In his petition, the father sought an amendment to the relocation clause in the divorce decree and modification of his access to the child. However, the father failed to submit his affidavit and withdrew his petition with leave of the court. In light of these facts, the Osaka High Court concluded that the Singaporean court did not possess rights of custody.
Author: Prof. Yuko Nishitani