Tokyo High Court (5th Civil Division)
Presiding Judge Hitomi Akiyoshi; Judges Yoshiki Matsutani and Hiroshi Konishi.
UNITED STATES - STATE JURISDICTION
12 June 2020
Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b) |
Appeal dismissed, return ordered
Arts 2 No 5, 27 No 3, and 28(1) No 4 and (2) No 3 of the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (Law No 48 of 19 June 2013).
Japanese child born in 2014 ― Father and mother previously foreign nationals and naturalized in Japan ― Parents married in 2001 in Japan ― Parents and child moved to the US in July 2017 ― Child obtained health insurance and enrolled in kindergarten in the US ― Parents established a company and started a business in December 2017 in the US ― Marital relationship deteriorated, and father removed child to Japan in April 2019 ― Neither father nor mother had a long-term visa for the US ― Mother filed petition for the child’s return to the Tokyo Family Court in December 2019 ― Return ordered ― Appeal dismissed and return ordered by the Tokyo High Court in June 2020 ― Main issue: Habitual residence of the child and grave risk defence.
The father and mother were foreign nationals and naturalized in Japan. They married in 2001 in Japan. The father started working at a company and purchased an apartment in Japan. The child, a Japanese national, was born in 2014. In July 2017, the father quit his job and moved to the US with his wife and child. The parents rented out their apartment in Japan for three years, while signing a health insurance contract and enrolling the child in kindergarten in the US. In December 2017, the parents established a company for investment in the US, which was transformed into a pizza restaurant business as a franchisee in November 2018.
The parents visited Japan with the child in February 2019 and were supposed to come back again two months later for an E2-visa application at the US embassy in Tokyo. The marital relationship gradually deteriorated. After secretly selling his car and withdrawing the child from the kindergarten in the US in early February 2019, the father returned to Japan with the child without prior notice to the mother and terminated the franchise contract in April 2019. The mother moved out of their apartment in the US and came to Japan in June 2019, only to find out that the father and child had obtained a new residence registration in Japan. The father now earns his living in Japan and the child attends a kindergarten there. The mother eventually petitioned for the return of the child to the Tokyo Family Court on 23 December 2019.
The Tokyo Family Court ordered the return of the child on the grounds that the child was habitually resident in the US and there was no grave risk for the child to be returned. The father appealed to the Tokyo High Court.
Appeal dismissed and return ordered.
The judges opined that habitual residence is a place where a person lives for a certain period of time. It ought to be determined according to the purpose, period and circumstances of the residence. Moreover, habitual residence of an infant at five years old, as in the underlying case, ought to be determined pursuant to a common intent of the parents toward fixing a stable residence.
In light of the circumstances of the case, the judges reasoned that the child went to the US at the age of three with both parents, who had a concrete business plan and obviously clear intent to stay there for a longer period of time. Furthermore, the child lived in the US for about one year and seven months until April 2019, where the child was enrolled in kindergarten and had a stable life with the parents. Thus, the child was held to have habitually resided in the US when removed to Japan.
The father brought about the grave risk defence, contending that neither the father nor the mother had residential status in the US, so the circumstances made it difficult for them to provide care to the child. However, the judges reasoned that despite the uncertainty of running a business and obtaining a long-term visa in the US, the parents and child as Japanese nationals would in any case be able to enter US soil without a visa for 90 days. Since they had also previously stayed with the mother’s brother and took care of the child there, no grave risk for the child could be ascertained.
Author: Prof. Yuko Nishitani