Case Law Search

This case concerned a 6 year old child born  in Japan. With the agreement of the father, the mother went to France with the child on 3 April 2018, to care for her sick father until his death. It was agreed that she would return to Japan with the child at the end of March 2019. The mother however refused to go back to Japan. The parents separated in September 2018.

On 27 March 2019, the father brought the case before the District Family Court (juge aux affaires familiales du tribunal judiciaire) of Nanterre to obtain the return of the child to Japan under the 1980 Convention. The return of the child was ordered. The mother filed an appeal before the Court of Appeal (cour d’appel) of Versailles, which upheld the return decision on 28 November 2019. The mother appealed this decision before the Supreme Court (Cour de Cassation).

Appeal dismissed. The Supreme Court upheld the Court of Appeal’s ruling.   

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

The mother challenged the Court of Appeal’s decision which did not find a grave risk of harm of the child in case of return, pursuant to Art. 13(1)(b) of the 1980 Convention. The mother argued that a return would carry a grave risk of psychological harm for the child, in light of the possible separation between her and the child due to the mother’s immigration situation, having lost her permanent residence status and needing to apply for a visa and due to a risk of the mother being deprived of her parental rights once back in Japan, noting that the child, aged 7 by that time, has always lived with her.

The Supreme Court upheld the Court of Appeal’s finding that there was no risk that the mother would lose her parental rights, as Art. 818 of the Japanese Civil Code establishes the principle of joint parental authority during marriage and Art. 819 provides that, in the event of divorce, the parents may agree on which parent will exercise parental authority, and that a father may exercise such authority only with the mother’s consent. The Supreme Court also upheld the Court of Appeal’s view  that, at that stage of the proceedings, it was not possible to prejudge the difficulties involved in settling the mother’s immigration  status in Japan nor was it possible to prejudge the approach the  Japanese courts would take in this case, given that Japanese family law provides for mediation procedures as well as for divorce by mutual consent. The Supreme Court highlighted that both parents had already engaged in international mediation and the father’s messages showed that he did not intend to break ties between the mother and child but rather offered to help the mother find a place to stay in Japan and to pay the rent. The Supreme Court, therefore, upheld the Court of Appeal’s finding that the mother had not sufficiently demonstrated that she would be unable to return to Japan with the child.

Author: Camille Druilhet