Buscador de jurisprudencia

The parents married in 2008. They lived in Singapore from 2014 and permanently resided there. Their son was born in 2014. In August 2017, they took a one-week trip abroad and stayed in Japan overnight on 30 August, when the father, after drinking, hit the mother’s face with significant force, and caused bruising, a sprain of her cervical vertebrae and a partial fracture of her left rib, in the child’s presence. Her complete recovery from the injuries was expected to take two weeks. The father was arrested on 31 August and released two days later in Japan, pending criminal proceedings. The father was prohibited to leave Japan without permission of the authorities.

On 15 September 2017, the father and the mother, each represented by an attorney, reached an agreement. Based on a draft prepared by the father, the settlement was signed, according to which the father consented to paying 1 million Yen to compensate the mother’s damage, the mother and the father would live separately, the mother would reside and care for the child in Japan, the father would pay 300,000 Yen monthly as maintenance, and the father would have a visitation arrangement with the child in Japan.

After this settlement, the father returned to Singapore. The father petitioned for a divorce and access order to the Tokyo Family Court on 9 November 2017 via a conciliation. He also petitioned for the return of the child to Singapore on 21 December of the same year. According to the return petition of the father, the mother had retained the child in Japan since 6 December 2017 at the latest.

The Tokyo Family Court dismissed the return application. The father appealed to the Tokyo High Court without success.

Appeal dismissed and return refused.

Consent - Art. 13(1)(a)

The parties’ settlement of 15 September 2017 was key in this respect. In the settlement, the parties agreed on living separately and the mother residing and taking care of the child in Japan without a fixed timeframe. The wording of the settlement ought to be understood as allowing the mother’s and the child’s long-term residence in Japan. The clauses on maintenance obligations and jurisdiction also presupposed that the mother and the child would reside in Japan for a long period of time. In accordance with their agreement, the father himself notified the kindergarten in Singapore of the child’s withdrawal and sent the mother’s and child’s belongings to Japan. Because the draft settlement was prepared by the father with his attorney, the settlement was duly agreed and signed by him, despite the fact that he was under pressure due to a possible criminal charge in Japan and concerned for his work in Singapore. As a result, the father was held to have properly consented to the retention of the child by the mother in Japan.  

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

Although the father was not violent towards the mother during their marriage in general, the violent acts that took place overnight in Japan in August 2017, in the child’s presence, were serious and shocking. These acts also caused serious injuries to the mother. The Court concluded that, once returned to Singapore, there was a grave risk that the mother would incur serious injury in such a manner as to cause psychological harm to the child. The fact that the father had never exercised physical violence towards the child did not alleviate the possibility of grave risk to the mental well-being of the child.

Author: Prof. Yuko Nishitani