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The father was an Australian national and the mother a Japanese national. The parents were unmarried and met each other via the internet around May 2017. In 2019, the father briefly visited the mother in Japan and she became pregnant. In July of the same year, the mother moved to Australia to give birth to the child and cohabit with the father. Both parents continuously had disagreements with each other. By the time of the child’s birth, the mother did not wish to raise their child in Australia. After their daughter was born, the father neglected to take care of the baby and shook the child in a violent manner on one occasion. The father caused mental distress to the mother by exercising verbal violence and neglecting the child. The mother also felt isolated in Australia and suffered from depression.

With the father’s consent, the mother went with the daughter to Japan 43 days after her birth. On 24 December 2019, the maternal grandfather declined the father’s visit to Japan, saying that the mother would not be returning to Australia with the child. After the maternal grandfather informed the father of this, the father petitioned for the return of the child to the Osaka Family Court in 2020.

The Osaka Family Court ordered the return of the child in January 2021, determining that the child’s habitual residence was in Australia, in the absence of the parents’ agreement to raise the child in Japan and as to who should have custody over the child. The father appealed the decision to the Osaka High Court.

On appeal, the Osaka High Court reversed the first instance decision of the Osaka Family Court and dismissed the father’s petition for the child’s return from Japan, holding that the child’s habitual residence was not in Australia.

Habitual Residence - Art. 3

The Osaka High Court held that the 1980 Convention aims to return the child to the state of habitual residence, with a view to realising the child’s interests, having custody disputes on the merits determined by the courts in the State of the child’s habitual residence, and deterring forum shopping in child abduction cases. Thus, the child’s habitual residence ought to be understood as the country where the child is integrated into its family and social environment. Following the established standards in Europe and the United States (Monasky v. Taglieri), the judge ought to consider, primarily from the viewpoint of the child, various circumstances to determine the child’s degree of integration into the social environment, such as (i) the child’s social connection in view of the child’s language, school, kindergarten, and participation in community activities, (ii) the length of the child’s stay in the State, and (iii) the parents’ intent for where the child should live.   

In the underlying case, the child had only lived in Australia for 43 days and did not have any meaningful connection with the society there. As for the parents’ intent, they did not share a common view, at the time of the child’s birth, that the child would be raised in Australia given that the mother, at that time, did not wish to continue cohabiting with the father in Australia. Thus, the child never acquired habitual residence in Australia and therefore there was no basis for the Court to order the child’s return there.  

Author: Prof. Yuko Nishitani