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Nom de l'affaire
2019 (Ra) No. 300 Appeal case against an order to return the child
Référence INCADAT
HC/E/JP 1625
Juridiction
Japon
Deuxième Instance
États concernés
Brésil
Japon
Décision
27 March 2019
Définitif
Résidence habituelle - art. 3 | Consentement - art. 13(1)(a) | Risque grave - art. 13(1)(b)
Recours rejeté, retour ordonné
Arts 27 No 3, and 28(1) No 3, 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)
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SYNOPSIS
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1 child born in 2015 in Japan ― Father and child Brazilian nationals, mother unknown ― Unmarried parents ― Mother and child lived in Japan for one year and moved to Brazil in March 2016 ― Mother removed the child to Japan in November 2018 ― Drinking alcohol, use of drugs and verbal violence of the father ― Father filed a petition for the child’s return to the Tokyo Family Court in October 2018 ― Return ordered ― Appeal dismissed by the Tokyo High Court in March 2019 ― Main issues: habitual residence, consent or acquiescence, and grave risk.
RÉSUMÉ
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Facts
Both the father and the child are Brazilian nationals. The mother is of Japanese descent and had lived in Japan since 1996 (her nationality is unknown). The parents met in 2012 while living in Brazil. They remained unmarried. During her pregnancy, the mother alone returned to Japan, gave birth to the child in 2015 and stayed there for almost one year. In March 2016, the mother moved to Brazil with the child to join the father and stayed there until 18 November 2017. The father would drink alcohol or use drugs even during the daytime and often shouted at the mother. In August 2017, the mother sought refuge at the Female Police Station and was informed of provisional protective measures against domestic violence in Brazil.
The mother ultimately removed the child from Brazil without prior notice to the father and arrived in Japan on 20 November 2017. The father petitioned for return of the child to the Tokyo Family Court on 18 October 2018.
The Tokyo Family Court ordered return of the child. The mother appealed to the Tokyo High Court without success.
Ruling
Appeal dismissed, return ordered.
Grounds
Habitual Residence - Art. 3
Habitual residence is a place where the person lives for a certain period of time. It ought to be determined according to the purpose, period and circumstances of the residence.
Since the child was living in Brazil from March 2016 till November 2017 and went to kindergarten, and the mother had a temporary work in Brazil, the child was habitually resident at the time of the wrongful removal to Japan. Habitual residence cannot be held as located in Japan in light of the weak connection of the mother and the child with Japan for lack of Japanese nationality and sufficient knowledge of Japanese language.
Consent - Art. 13(1)(a)
There was no record indicating a prior consent or subsequent acquiescence of the father to remove the child to Japan. The father may have been aware of a possible temporary stay of the child in Japan, but never agreed to a long-term stay.
Grave Risk - Art. 13(1)(b)
The father often drank alcohol or used drugs even during the daytime, and shouted at the mother. However, there was no evidence that the father’s drinking or use of drugs caused material risk of grave harm to the child. Nor was there any evidence that his shouting caused any grave risk to the child, even though the mother once called the Female Police Station to seek refuge from the father’s verbal violence.
Author: Prof. Yuko Nishitani