Russie, Fédération de
28 February 2019
Droit de garde - art. 3 | Risque grave - art. 13(1)(b)
Recours rejeté, retour ordonné
Arts 27 No 3, and 28(1) No 1-6 and (2)(3) of the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (Law No 48 of 19 June 2013)
One child (Russian national) born in 2014 resided in Russia ― Father and mother Russian nationals ― Parents married in 2014 in Russia ― Parents divorced in 2016 ― Mother took the child to Japan in October 2017 and settled there following her remarriage ― A ne exeat order of the Russian court was partly set aside by confirming the child’s temporary residence in Japan in January 2019 ― Central Authority of Japan assisted the Father with a return application in July 2018 ― Father filed petition for the child’s return to the Tokyo Family Court in October 2018 ― Return ordered ― Appeal dismissed by the Tokyo High Court in February 2019 ― Main issues: rights of custody and grave risk.
The father, the mother and the child are all nationals of the Russian Federation. The parents married in Russia in 2014 and the child was born in the same year. After the parents started to live separately in Russia in June 2016, the mother petitioned for the payment of child support against the father, which was granted as a monthly payment of 5,000 RUB in August 2016. The father regularly visited the child and partly fulfilled the maintenance obligations. The parents agreed in divorce proceedings that the mother would be the child’s primary caregiver, and obtained a divorce decree in September 2016.
Around 30 October 2017, the mother moved to Japan with the child without the father’s consent and settled there with her new husband subsequent to their marriage in December 2017. The child started to go to kindergarten in Japan in April 2018.
In May 2018, the father obtained a ne exeat order from the Russian courts in respect of the child, in addition to a visitation order issued in March 2018. The visitation order was supplemented by another ne exeat order against the mother in September 2018. However, a court decree followed in January 2019, confirming the child’s temporary residence in Japan and setting aside the ne exeat order rendered in May 2018 to the extent that the child was allowed to stay in Japan. After the Japanese Central Authority assisted the father with a return application under the 1980 Child Abduction Convention on 24 July 2018, the father ultimately petitioned for the return of the child to the Tokyo Family Court on 18 October 2018.
On the grounds of a careful examination of the requirements for return and grounds for refusal, the Tokyo Family Court ordered the return of the child. The mother appealed to the Tokyo High Court without success.
Appeal dismissed and return ordered.
Pursuant to Russian law, both parents have equal parental rights and responsibilities before and after divorce, so the father had rights of custody at the time of the removal of the child to Japan. Moreover, rights of custody were actually exercised by the father in Russia, who had regular visitation with the child and partially paid child support.
The ne exeat order obtained by the father in Russia in May 2018 was set aside by another court decree in January 2019, which confirmed the child’s temporary residence in Japan. However, the existence of such a foreign court decree on the merits of custody, which may be recognized in Japan, cannot be relied on to refuse return of the child under the Hague Convention. In addition, this court decree does not retroactively remedy the mother’s wrongful removal of the child in breach of the father’s rights of custody in October 2017. Since this court decree solely authorizes the child’s temporary residence in Japan, custody disputes between the parents persist, which ought to be reasonably resolved by the Russian courts following the return of the child.
The mother’s assertions that the separation from the primary caregiver and the return of the child to poor living conditions would expose the child to grave risk were not agreed to by the judges. Further, the assertions of the father’s domestic violence lacked objective evidence. Even if there were indeed some violent acts in the past, they do not immediately constitute a grave risk for the child to be returned to Russia.
Author: Prof. Yuko Nishitani