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Nom de l'affaire
2017 (Kyo) No. 9 Case on Appeal with Permission against Modification of Final Order
Référence INCADAT
HC/E/JP 1387
Juridiction
Japon
Cour suprême du Japon
Instance Suprême
Atsushi Yamaguchi, Masayuki Ikegami, Naoto Otani, Hiroshi Koike et Katsuyuki Kizawa.
États concernés
États-Unis d'Amérique
Japon
Décision
21 December 2017
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Opposition de l'enfant au retour - art. 13(2) | Risque grave - art. 13(1)(b)
Recours rejeté, retour refusé
Arts 26, 28 and 117, Act for Implementation of the Hague Convention on the Civil Aspects of International Child Abduction; Art. 89, Rules of Procedure for cases relating to return of the child under the Act for Implementation of the Hague Convention on the Civil Aspects of International Child Abduction.
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INCADAT commentaire
Exceptions au retour
SYNOPSIS
This is the first and so far the only Supreme Court decision which modified a final and binding return order due to a change in circumstances under the Hague Convention Implementation Act. It is seen as a highly exceptional case.
4 children (2 sets of twins) wrongfully retained in Japan ― Children lived in the United States until July 2014, when the elder twins were 11 years and 7 months old and the younger twins 6 years and 5 months old ― Married parents ― Father national of the United States ― Mother national of Japan ― Order for the return of all children became final and binding in January 2016 ― The Supreme Court upheld the Osaka High Court decision modifying the return order due to change in circumstances and dismissed the petition for the return of the children ― Main issues: Grounds for refusal of a return order ― The elder twins’ objection to being returned ― A grave risk of placing the younger twins in an intolerable situation by separating them from their siblings
RÉSUMÉ
Facts
The parents are an American father and a Japanese mother who were married and living in the United States. In July 2014, the mother removed their four children to Japan when the elder twins were 11 years and 7 months old and the younger twins 6 years and 5 months old. In breach of her promise to return to the United States, the mother wrongfully retained the children in Japan. The 1980 Hague Child Abduction Convention entered into force between the United States and Japan on 1 April 2014.
The father petitioned the Japanese courts for return of the children in August 2015. The Osaka High Court accepted the petition and ordered the return of all four children, holding that return was in the interests of the elder mature twins despite their objection to being returned, and that there was no grave risk of placing the younger twins in an intolerable situation by returning them to the United States. The return order became final and binding in January 2016. However, all the children continued to stay in Japan. In September 2016, execution of the return order by substitute was attempted, but failed.
Meanwhile, the father’s living conditions in the United States noticeably deteriorated. The family home was put to auction in February 2016, and he moved into a room at an acquaintance’s house in August of that year. The mother applied to the Japanese courts to modify the return order and dismiss the father’s petition for return of the children pursuant to Article 117(1) of the Hague Convention Implementation Act (“Japanese Act”), on the grounds that it would be inappropriate to return the children in the light of this change in circumstances. The Osaka High Court granted the mother’s application in February 2017.
Ruling
Appeal dismissed and return refused. The Supreme Court ruled that the lower court had applied the law correctly.
Grounds
Objections of the Child to a Return - Art. 13(2)
Please see the combined analysis of the Court's decision under "Grave Risk" below.
Grave Risk - Art. 13(1)(b)
The Supreme Court upheld, as a highly exceptional case, the Osaka High Court decision modifying the original return order and dismissing the father’s petition for return of the children due to a change in circumstances under Article 117(1) of the Japanese Act.
According to the Supreme Court, there was a change in circumstances after the original return order had become final and binding. Namely, the father’s living conditions were found to have seriously deteriorated to the extent that the children could no longer be duly cared for, even if they were to be returned to the United States. Consequently, the Supreme Court found the following grounds for refusal of the return order.
First, the Justices held that the elder twins, who were mature enough to have their views considered, consistently objected to being returned to the United States (Art. 13(2) of the Convention; Art. 28(1) No. 5 of the Japanese Act). After the circumstances changed, return of the elder twins could no longer be justified on grounds of their interests outweighing their objection. Second, the Justices contended that there was a grave risk of placing the younger twins in an intolerable situation (Art. 13(1)(b) of the Convention; Art. 28(1) No. 4 of the Japanese Act) should they be returned to the United States alone, particularly because they would be separated across borders from their siblings, to whom they had a close attachment.
Author: Professor Yuko Nishitani
INCADAT comment
Economic Factors
Article 13(1)(b) and Economic Factors
There are many examples, from a broad range of Contracting States, where courts have declined to uphold the Article 13(1)(b) exception where it has been argued that the taking parent (and hence the children) would be placed in a difficult financial situation were a return order to be made.
Australia
Director General of the Department of Family and Community Services v. Davis (1990) FLC 92-182 [INCADAT Reference: HC/E/AU 293]
The fact that the mother could not accompany the child to England for financial reasons or otherwise was no reason for non-compliance with the clear obligation that rests upon the Australian courts under the terms of the Convention.
Canada
Y.D. v. J.B. [1996] R.D.F. 753 (Que. C.A.) [INCADAT Reference: HC/E/CA 369]
Financial weakness was not a valid reason for refusing to return a child. The Court stated: "The signatories to the Convention did not have in mind the protection of children of well-off parents only, leaving exposed and incapable of applying for the return of a wrongfully removed child the parent without wealth whose child was so abducted."
France
CA Lyon, 19 septembre 2011, No de RG 11/02919 [INCADAT Reference: HC/E/FR 1168]
The existence of more favourable living conditions in France could not be taken into consideration.
Germany
7 UF 39/99, Oberlandesgericht Bamberg [INCADAT Reference: HC/E/DE 821]
New Zealand
K.M.A. v. Secretary for Justice [2007] NZFLR 891 [INCADAT Reference: HC/E/NZ 1118]
Financial hardship was not proven on the facts; moreover, the Court of Appeal considered it most unlikely that the Australian authorities would not provide some form of special financial and legal assistance, if required.
United Kingdom - England and Wales
In early case law, the Court of Appeal repeatedly rejected arguments that economic factors could justify finding the existence of an intolerable situation for the purposes of Article 13(1)(b).
Re A. (Minors) (Abduction: Custody Rights) [1992] Fam 106 [INCADAT Reference: HC/E/UKe 48]
In this case, the court decided that dependency on State benefits cannot be said in itself to constitute an intolerable situation.
B. v. B. (Abduction: Custody Rights) [1993] Fam 32, [1993] 2 All ER 144, [1993] 1 FLR 238, [1993] Fam Law 198 [INCADAT Reference: HC/E/UKe 10]
In this case, it was said that inadequate housing / financial circumstances did not prevent return.
Re M. (Abduction: Undertakings) [1995] 1 FLR 1021 [INCADAT Reference: HC/E/UKe 20]
The Court suggested that the exception might be established were young children to be left homeless, and without recourse to State benefits. However, to be dependent on Israeli State benefits, or English State benefits, could not be said to constitute an intolerable situation.
United Kingdom - Scotland
Starr v. Starr, 1999 SLT 335 [INCADAT Reference: HC/E/UKs 195]
IGR, Petitioner [2011] CSOH 208 [INCADAT Reference: HC/E/UKs 1154]
Switzerland
5A_285/2007/frs, IIe Cour de droit civil, arrêt du TF du 16 août 2007 [INCADAT Reference: HC/E/CH 955]
Zimbabwe
Secretary For Justice v. Parker 1999 (2) ZLR 400 (H) [INCADAT Reference: HC/E/ZW 340]
There are some examples where courts have placed emphasis on the financial circumstances (or accommodation arrangements) that a child / abductor would face, in deciding whether or not to make a return order:
Australia
Harris v. Harris [2010] FamCAFC 221 [INCADAT Reference: HC/E/AU 1119]
The financially precarious position in which the mother would find herself were a return order to be made was a relevant consideration in the making of a non-return order.
France
CA Paris, 13 avril 2012, No de RG 12/0617 [INCADAT Reference : HC/E/FR 1189]
In this case, inadequate housing was a relevant factor in the consideration of a non-return order.
Netherlands
De directie Preventie, optredend voor zichzelf en namens Y (de vader /the father) against X (de moeder/ the mother) (7 February 2001, ELRO nr.AA9851 Zaaknr:813-H-00) [INCADAT Reference: HC/E/NL 314]
In this case, financial circumstances were a relevant factor in the consideration of a non-return order.
United Kingdom - Scotland
C. v. C. 2003 S.L.T. 793 [INCADAT Reference : HC/E/UKs 998]
An example where financial circumstances did lead to a non-return order being made.
A, Petitioner [2011] CSOH 215, 2012 S.L.T. 370 [INCADAT Reference: HC/E/UKs 1153]
In this case, adequate accommodation and financial support were relevant factors in the consideration of a non-return order.
European Court of Human Rights (ECrtHR)
Šneersone and Kampanella v. Italy (Application No 14737/09) [INCADAT Reference: HC/E/ 1152]
The ECrtHR, in finding that there had been a breach of Article 8 of the European Convention on Human Rights (ECHR) in the return of a child from Latvia to Italy, noted that the Italian courts exercising their powers under the Brussels IIa Regulation, had overlooked the fact that it was not financially viable for the mother to return with the child: she spoke no Italian and was virtually unemployable.
(Author: Peter McEleavy, April 2013)