Recherche de décisions

The father is a US national and the mother a Japanese national. They started to live together in 2015 in the US. In 2016 they had a child (US and Japanese national), while the mother was married to another US national. Subsequently, the mother divorced and had the paternity of the father established.  

The father had been using cannabis and was prosecuted without being convicted in 2018. At the start of 2017, the mother incurred damage due to the father’s domestic violence, stayed in a shelter for several months, and obtained a restraining order in May 2017, which was though soon revoked. In October 2018, the parents, living in different cities, agreed on joint custody and parenting with equal share of time, allowing the mother to take the child for three weeks to Japan every year. This parenting arrangement was approved by the US court. 

The mother came to Japan in December 2018 for three weeks with the father’s consent, but did not return to the US. The father petitioned to the Tokyo Family Court on 8 July 2019 for return of the child. The mother attempted suicide but was rescued and hospitalised.  

The Tokyo Family Court dismissed the return application based on Article 13(1)(b) grave risk of harm to the child, considering the high probability that the mother would commit suicide should the return of the child be ordered. The father appealed to the Tokyo High Court.

Appeal allowed, return ordered.

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

The judges first examined Art 28 (2) No 1-3 Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (Law No 48 of 19 June 2013) that define “grave risk”. They opined that the father’s continued use of cannabis or past violence against the mother did not amount to grave risk for the child to be subject to physical or psychological harm, considering that the father had a medical prescription to use cannabis under control and was not proven to possibly cause harm to the child because of that, nor had the father exercised violence against the mother since January 2017 although they were constantly in touch and travelled together with the child. Nor did the judge ascertain circumstances that would render the provision of care for the child difficult in the US, because the parents used to abide by the parenting arrangement and the mother had entrusted the father with care and custody of the child while in the US.

Unlike the lower instance, the judges did not accept high risk of suicide by the mother. The High Court reasoned that the mother was neither depressive nor had mental illness. The attempt of suicide was rather caused impulsively by her feeling of anxiety, fear, helplessness and despair due to the heated custody disputes. After being released from the hospital, she has been mentally stable and visited the hospital only every other week. Furthermore, her relatives had not taken any measures to prevent her suicide. The judges, therefore, did not affirm that there was a grave and serious risk of the mother committing suicide, nor grave risk for the child to be returned to the US.

Author: Prof. Yuko Nishitani