AFFAIRE

Texte complet non disponible

Nom de l'affaire

2020 (Ra) No. 1299 Appeal case against dismissal of case seeking return of children

Référence INCADAT

HC/E/JP 1560

Juridiction

Pays

Japon

Degré

Deuxième Instance

États concernés

État requérant

États-Unis d'Amérique

État requis

Japon

Décision

Date

3 September 2020

Statut

Confirmé par l'instance supérieure

Motifs

Droit de garde - art. 3

Décision

Recours rejeté, retour refusé

Article(s) de la Convention visé(s)

3 13(2)

Article(s) de la Convention visé(s) par le dispositif

3

Autres dispositions

Arts 26, 27 Nos 3 and 28(1) Nos 4 and 5 of the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (Law No 48 of 19 June 2013)

Jurisprudence | Affaires invoquées

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Publiée dans

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SYNOPSIS

Synopsis disponible en EN

Two children retained in Japan ― United States nationals born in 2009 and 2012 ― Married parents living in the United States ― Father and mother nationals of the United States ― Father and children travelled to Japan from November 2018 and resided there from 2019 ― Mother visited father and children in Japan several times but did not relocate there ― Mother and fathers’ relationship deteriorated and father retained children in Japan from November 2019 ― Father instituted in-court conciliation to obtain sole custody before the Japanese courts in January 2020 ― Mother sought return of the children in the Japanese courts in February 2020 ― Japanese courts dismissed the claim as children were habitually resident in Japan ― Habitual residence determined on the grounds of the children’s close connection and integration into their social and family environment ― Limited role of the parents’ intentions in determining habitual residence ― Main issue: Habitual residence.

RÉSUMÉ

Résumé disponible en EN

Facts

The mother and the father are both United States nationals. They married in 2007. Their first son “A” was born in 2009 and second son “B” in 2012. The mother had another child born in 1999 from her previous marriage. The parents had lived together in the United States since 2007.

In November 2018, the father went to Japan along with A and B for a short-term visit regarding a business opportunity, and returned to the United States in mid-February 2019. Shortly thereafter, the father and A and B obtained a five-year visa and, after some travel back and forth, the father and A and B went to Japan where they remained from 16 August 2019. The father maintained his residence in the United States.

The mother visited the father and A and B in Japan several times from December 2018. The mother sought to move to Japan and looked for a job there. However, the parents’ relationship gradually deteriorated. The mother and father agreed to cancel A’s school enrollment in the United States and enrolled A and B in an international school in Japan from April and August 2019 respectively. The mother voluntarily paid both children’s one-year tuition in July 2019. The father registered A and B for health care in Japan. On 16 November 2019, the father ended his relationship with the mother and retained both children in Japan.

The mother came to Japan twice between November 2019 and January 2020, but never requested that the father return A and B to the United States. In January 2020, the father instituted in-court conciliation before the Tokyo Family Court to obtain sole custody. On 25 February 2020, the mother petitioned the Tokyo Family Court for the return of A and B to the United States. 

Ruling

Appeal dismissed and return refused as the children were found to be habitually resident in Japan.

Grounds

Rights of Custody - Art. 3

In accordance with the reasoning provided by the lower court, the Tokyo High Court dismissed the appeal. The Court held that habitual residence of the child is determined according to whether the child is closely connected with the state and integrated into its social and family environment, considering the length, purpose, and circumstances of their stay, and the meaning and purpose of the 1980 Child Abduction Convention. The intent of the parents is only a complementary factor in examining the degree of the child’s integration. When the child is a baby or small infant, the degree of the child’s integration is assessed through their primary caregiver. This notion of habitual residence derives from case law of the Court of Justice of the European Union and the Supreme Court of the United States, which ought to be followed in Japan for the sake of uniform treaty interpretation.

In the present case, immediately before the father started to retain A and B on 16 November 2019 in Japan, both children had resided there for about one year with a long-term visa, residency, and health care registration. Both children were enrolled in elementary school in Japan. Despite their United States-nationality and poor Japanese language skills, A and B had a close connection with Japan and were integrated into its social and family environment. Considering the criteria to establish habitual residence including the children’s age, the intent of the parents was not decisive in determining their habitual residence. Nor had it been ascertained that the parents had agreed to end the children’s stay in Japan in November 2019, in the instance the mother did not move to join the family. Consequently, A and B's habitual residence was established in Japan when the father started to retain the children there.

Author: Prof. Yuko Nishitani