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The father and the mother were both Japanese nationals. They married in 2002 and had three children, their son F born in 2004, son C in 2006 and daughter D in 2008 in Japan. The family moved to France in 2010 so the father could train as a pastry chef. The father was later employed by several pastry shops, and the mother by a Japanese restaurant from 2015. The two youngest children, C and D, attended kindergarten and school, learned to speak French fluently and were well settled in France. On 20 April 2017, the father filed for divorce in the courts in France. A separation decree was rendered on 21 December 2017, ordering joint parental responsibility, the children’s residence with the mother, and the father’s access, while the father’s relocation with their children to Japan was held inadmissible until the end of the school year in July 2020. The father moved out to live in an apartment nearby in February 2018. 

With the mother’s consent, the father travelled to Japan with the three children, F, C and D, on 29 July 2019 to spend the summer holidays there. The father, however, refused to return on 19 August 2019 with the children to France, as he had agreed with the mother to do, and started to retain all three children with him in the paternal grandparents’ home in Japan. The father enrolled C in Middle School and D in Elementary School in Japan.

To have C and D returned to France, the mother sought assistance of Japan’s Central Authority in March 2020 and petitioned for the return of C and D to the Osaka Family Court on 27 July 2020. By this time, the oldest child was 16 years old, and therefore the 1980 Convention did not apply to him. After issuing a ne exeat order on 5 August 2020, the Osaka Family Court ordered the return of C and D on 11 September 2020. The father’s appealed to the Osaka High Court.

On appeal, the lower instance decision of the Osaka Family Court was upheld and the Osaka High Court ordered the return of the children, C and D, from Japan to France. The Court rejected the father’s argument that the return of the children should be refused because the mother had not exercised her custody rights and because of the children’s views.

Acquiescence - Art. 13(1)(a)

The Osaka High Court rejected the father’s argument that the mother had not exercised her custody rights of the children at the time of the father’s retention, or that the mother had acquiesced to the father’s retention.

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

The Court did not accept there was grave risk for the children to be returned to France, since the mother’s previous exercise of custody did not constitute illicit neglect, and France’s response to COVID-19 no longer required being subject to lockdown or travel bans.

Objections of the Child to a Return - Art. 13(2)

The Family Court Investigating Officer interviewed C and D, who could mostly reply in Japanese themselves. C was then 13 years old and had a sufficient ability to understand and express his opinion. While C expressed his preference to stay with his family and friends in Japan, he did not dislike the idea of returning to France to live with the mother and D, possibly also with the father. D was then 11 years old and mature enough to express her own views. D also expressed her preference to stay in Japan due to her family and friends present there and her wish to establish a photography club at middle school. D, however, did not exclude the option of returning to France or living with the mother either. 

Furthermore, the Court determined that the father had exercised considerable influence on C and D, threatening not to return to France without the eldest child, F, although F had long expressed a wish to go to high school in Japan. The Court considered that C’s and D’s preference to stay in Japan, therefore, ought to be understood as strongly affected by the father’s view. As a result, the courts agreed that the ground for refusal of return, based on the children’s objections to being returned, did not apply. 

The Osaka High Court upheld the Osaka Family Court’s decision to return the youngest two children, C and D to France, to live with their mother.

Author: Prof. Yuko Nishitani