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The father is a Russian national and the mother a Japanese national. They married in 2006 and the child was born the same year. They lived in Moscow from 2007, until the child went to Japan in May 2016. The mother followed in August 2016 and retained the child (then aged nine) in Japan.

On 22 November 2016, the father petitioned the Tokyo Family Court for return of the child to Russia, pursuant to Article 26 of the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (the "Implementation Act"). At the hearing of the child, the child expressed her wish to stay in Japan. On 11 January 2017, the parents agreed via an in-court conciliation (“conciliation agreement”) that the child and the mother would return to Russia on 12 February 2017 (“return clause”), and child support and access would be ensured, among other matters. The conciliation agreement was made binding. The child, however, refused to return and sought refuge at a church on her way home from school two days before the agreed date of return.  

The father petitioned the Tokyo Family Court for indirect execution and execution by substitute for return of the child. He further sought a habeas corpus order at the Sapporo District Court on 21 February 2018. The parties settled the matter on 30 July 2018. The judicial settlement provided, inter alia, that the child would take the state exam in Russia, the father would have access to the child, the mother would reside with the child from April 2019 in Japan, and the father would refrain from enforcing the child’s return insofar as the child took the state exam.

The mother petitioned the Court for modification to the return clause of the conciliation agreement, under Art 117(1) Implementation Act, on the basis that there was a change in circumstances, including the child’s objection and the judicial settlement reached by the parties allowing the mother to care for the child in Japan. Later, the mother referred to a Russian divorce judgment of 7 February 2019 allegedly confirming her custody. The lower instance court dismissed the mother’s claim and the mother appealed to the Supreme Court.

The lower instance decision was quashed and the case was remanded to the Tokyo High Court. The binding conciliation agreement could be modified to ensure the welfare of the child, as it was an exceptional case due to the change in circumstances.

Issues Relating to Return

The lower court (the Tokyo High Court) had dismissed the mother’s petition for modification to the return clause in the conciliation agreement. The reasoning was that Art 117 (1) Implementation Act solely applies to modification of a return order, and that the return clause alone could not be modified without touching upon other clauses such as child support and access that were also present in the conciliation agreement. The Supreme Court, however, refused to uphold the lower instance decision, and held that the return clause could be modified on the following grounds.

First, Art 117(1) Implementation Act could not be directly applied to modify a return clause made in conciliation. However, the provision does allow modification of a final and binding return order when upholding it is no longer appropriate to ensure the child’s welfare due to a change in circumstances. This also applies to cases where the parents have reached an agreement in conciliation to return the child. Notably, a return clause made in conciliation, once entered into the court record, has the same effect as a final and binding return order under Art 145(3) Implementation Act.

Second, when parties agree in conciliation on the return of the child, as well as child support and access, modification of the return clause needs to be extended to modification of the other clauses. Since this can be done in modification proceedings under the Domestic Relations Case Procedure Act, it does not constitute an obstacle to modifying the return clause.

Thus, the Supreme Court concluded that the return clause reached in conciliation can, upon the party’s request, be modified pursuant to Art 117(1) Implementation Act mutatis mutandis. The Justices quashed the lower instance decision and remanded the case to the Tokyo High Court for further examination. 

Author: Prof. Yuko Nishitani