Recherche de décisions

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. 

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

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