Buscador de jurisprudencia

The father and mother were Japanese nationals and cohabited from early 2017 in Japan while the father was still married to another woman. The child (Japanese national) was born in 2017 in Japan and was acknowledged by the father. In December 2017, the parents and the child  went to the Philippines, where the cost of living was lower. The parents soon purchased a condominium in the Philippines as an investment and remained there but maintained their apartment in Japan. Without a long-term visa, the family travelled back and forth from the Philippines, including via third states, in order not to exceed the permitted 30-day stay in the Philippines. The parents married in April 2018 in Japan upon the father’s divorce.

Around July 2018, the father decided to apply for a long-term visa and stay in the Philippines purportedly for tax evasion purposes. He also requested the mother to refrain from going to Japan until April 2019. In the fall of 2018, after several serious quarrels and verbal attacks, the father detained the mother in a room of their condominium in the Philippines and prohibited her from taking care of the child. The mother escaped and rushed to police but decided not to make a report. On 10 November 2018, the mother removed the child to Japan. The mother instituted proceedings in the Tokyo Family Court, seeking a divorce and custody order on 6 February 2019 and a maintenance order against the father on 11 September 2019. The father petitioned for the return of the child to the same court on 11 October 2019.

The Tokyo Family Court ordered the return of the child, on the basis that the child’s habitual residence was in the Philippines and there was no grave risk posed by the child’s return. The mother appealed to the Tokyo High Court.

Appeal allowed and return refused in the absence of the child’s habitual residence in the Philippines.

Habitual Residence - Art. 3

The Tokyo High Court allowed the appeal and dismissed the return application for lack of the child’s habitual residence in the Philippines.

The judges opined that habitual residence is a place where a person lives for a certain period of time. It ought to be determined in each individual case according to various relevant factors, particularly, the purpose, period, and circumstances of the residence. Even if the child is an infant, his or her habitual residence ought to be determined pursuant not only to a common intent of the parents, but also the degree of integration of the child, among other factors.

In the present case, the judges reasoned that the child stayed in the Philippines for over six months from December 2017, when the parents first went to the Philippines, until November 2018, when the child was removed from the Philippines to Japan. For lack of a long-term visa, however, the family frequently travelled back and forth, including via third states, and did not permanently stay in the Philippines.

Furthermore, in the opinion of the judges, the purpose of living in the Philippines, to entrust household workers with child-rearing and other duties, was not fulfilled, and the centre of the parents’ life and work was not located in the Philippines. Although the residence registration of the child in Japan had been removed, it was reinstated in February 2018, and the child had visited a social worker and underwent a health examination in Japan. On the other hand, the child did not establish any connection with the Philippines in medical, welfare or educational aspects.

In light of these circumstances, the judges concluded that there was no intent of the parents to establish their permanent residence to take care of the child in the Philippines, nor was the child sufficiently adapted to the Philippines. Thus, the High Court held the child’s habitual residence was not in the Philippines and dismissed the return application.

Author: Prof. Yuko Nishitani