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The father is a Turkish national, the mother a Japanese national. They married in Turkey in 2012 and had a son in the same year. The parents shared custody rights under Turkish law.

The mother alleged that the father sexually abused their son by playing with his genitals and that he exercised violence against her from time to time, grabbing or biting her in arms, hitting or kicking on arms or hips, or hitting her in face, some of which left bruises. When she briefly went back to Japan in 2013, the doctor detected a deformed intervertebral disk in hips and broken coccyx. The mother alleged that the injury was inflicted by the father, but the causal relationship was controversial due to a delayed diagnosis.

The mother hired an attorney to petition for divorce. After she took the child to Japan in 2014, the attorney applied for a domestic violence restraining order in Turkey. The Family Court granted an order, prohibiting the father to threaten, insult or exercise violence against the mother for three months. The 2012 “Law No. 6284 to Protect Family and Prevent Violence against Woman” of Turkey provides for that the public prosecutor can intervene and order the arrest of a person breaching a restraining order, and that the victim can be accompanied by police and ask the government for a shelter, a financial support, and legal or psychological advice.  

The father petitioned to the Tokyo Family Court for return of the child. Despite the alleged violence by the father, the judges did not find sufficient evidence and rendered a return order, relying on protective measures to be provided in Turkey

Although the Tokyo Family Court had ordered return of the child, the Tokyo High Court allowed appeal and reversed the decision, refusing to order a return on the ground of there being a grave risk for the child, considering the violent acts of the father.

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

Unlike the Tokyo Family Court, the Tokyo High Court ascertained that there was grave risk of subjecting the child to serious physical or psychological harm by returning the child to Turkey.

The Tokyo High Court judges considered several reports on domestic violence in Turkey, which described that a restraining order often remains ineffective in the absence of efficient police intervention or forceful prosecution. The Turkish patriarchal society allegedly does not readily allow protecting women anonymously, which led to a high number of women being cared for in a shelter but killed. The availability of shelters also seems to be limited.

The Tokyo High Court judges evaluated evidence differently from the Tokyo Family Court, finding that the father’s sexual abuse of the child, as well as the causal relationship between his exercise of physical violence against the mother and her broken coccyx to be decisive.

It was held, first, since the child would stay close to the mother, the father’s exercise of violence against the mother entails grave risk of directly subjecting the child to physical and psychological harm. Second, observing the father exercising violence against the mother may well cause psychological harm to the child. In light of the situation in Turkey, the judges reasoned that a domestic violence restraining order would not guarantee a sufficient protection for the mother and the child, and that it was not clear whether they could reside in a shelter and have an effective protection there. Third, the judges considered that, due to sexual abuse by the father and his alcohol addiction, the mother ought to be the primary care-giver, whereas the father did not cooperate for the mother to obtain a visa or pay maintenance in the past.

As a result, the judges concluded that there was a grave risk that the return of the child would expose him to physical or psychological harm or place him in an intolerable situation. Thus, they opined that the petition for return of the child ought to be dismissed.

Author: Prof. Yuko Nishitani