Osaka High Court (10th Civil Division)
Tribunal de Apelaciones
Presiding Judge Shinzo Shidahara; Judges Akiko Nakamura and Shin Shimato.
16 October 2019
Residencia habitual - art. 3 |
Apelación desestimada, restitución denegada
Arts 2 No 5 and 27 No 3 and 4 of the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (Law No 48 of 19 June 2013).
Daughter born in 2007 and son in 2012 ― Father, mother and both children previously Sri Lankan nationals and naturalized in Japan in 2017 ― Father living in Japan since 1999 and mother since 2002 ― Parents married in 2002 ― Father principally moved to Sri Lanka with two children in July 2017, but maintained his job, home and residence registration in Japan ― Mother also travelled back and forth ― Children enrolled at school in Sri Lanka in September 2017, but went back to their elementary school in Japan during long school breaks ― Parents separated since August 2018, followed by petitions for a custody order and divorce to the Osaka Family Court ― Mother retains son since April 2019 in Japan ― Father returned to Sri Lanka with daughter in May 2019 ― Father filed petition for the son’s return to the Osaka Family Court in June 2019 ― Petition dismissed ― Appeal dismissed and return refused by the Osaka High Court in October 2019 ― Main issue: Habitual residence of the child.
The father was living in Japan since 1999 and the mother since 2002, and they married in 2002. They were originally Sri Lankan nationals. The daughter was born in Japan in 2007 and the son in 2012, both as Sri Lankan nationals. The entire family was naturalized in Japan in June 2017. After the marital relationship deteriorated, the father principally moved with both children to Sri Lanka in July 2017, but regularly came back to Japan. Both children were enrolled at an international school in Sri Lanka in September 2017, which the mother also consented to. During school breaks the children attended their former elementary school in Japan. Thus, the children effectively returned to Japan every three to four months, for a period of one month. The mother also travelled back and forth with the children. The father upheld his job, as well as home and residence registration for himself and both children in Japan.
After a failed attempt to reconcile, the parents separated in August 2018. Shortly after, the mother filed a petition for a custody order to the Osaka Family Court, and the father countered with a claim for divorce. The mother retained the son in a shelter in Japan since April 2019. The father now lives with the daughter alone in Sri Lanka. The father petitioned for the return of the son to the Osaka Family Court on 12 June 2019.
The Osaka Family Court dismissed the return application on the grounds that the son was habitually resident in Japan when his retention commenced in Japan in April 2019. The father appealed to the Osaka High Court.
Appeal dismissed and return refused.
The Osaka High Court dismissed the appeal and refused the return of the child for lack of alleged habitual residence in Sri Lanka.
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 period, purpose and circumstances of the residence. Moreover, habitual residence of an infant needs to be determined pursuant to a common intent of the parents to give up the previous habitual residence and settle at a new residence.
The judges reasoned that before going to Sri Lanka in July 2017 the son spent about five years living with the entire family in Japan, attending kindergarten in Japan, speaking Japanese at home, and adapting to Japanese food, manners and customs, as if he were a Japanese child. There was no agreement between the parents that the father would permanently settle with the children in Sri Lanka in July 2017, and the mother thought it to be temporary. Since then, the children attended school in Sri Lanka, but regularly came back to Japan.
Against this background, the judges contended that the parents had agreed to raise the son as a Japanese child in Japan. Since the father maintained his home, residence registration and job in Japan even after July 2017, there was no common intent between the parents to give up the child’s habitual residence in Japan and settle in Sri Lanka. The child also maintained stronger social ties to Japan by regularly coming back.
As a result, the judges reasoned that the child’s habitual residence remained in Japan, so the appeal was ill-founded.
Author: Prof. Yuko Nishitani