2017 (Ju) No. 2015

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This case concerns the custody of a Japanese couple’s son who was born and raised in the United States until the mother, without the father’s consent, took him to Japan when he was 11 years old. Pursuant to the Japanese implementation of The Hague Convention on the Civil Aspects of International Child Abduction, the father, whose life was still based in the U.S., petitioned for the return of the son to the U.S. A family court in Tokyo granted the petition. However, the attempt to enforce the order of the court failed as the mother strongly resisted when a court execution officer approached her––the son also voiced his desire to stay in Japan at the time. Subsequently, the father requested habeas corpus relief seeking release of the child. The High Court dismissed the request. In this appeal, the Supreme Court of Japan reversed the High Court’s ruling and remanded the case. In its reasoning, the Supreme Court first recalled its old ruling that care for a child is tantamount to “restraint” within the meaning of the Habeas Corpus Act and the Habeas Corpus Rules in special circumstances where it cannot be deemed that the child is staying with the care provider based on the child’s free will, even if the child is capable of making her/his own decisions. The Supreme Court found such a special circumstance––undue emotional influence from his mother––existed with respect to the son in light of the fact that he was not capable of making decisions regarding his life when he was taken to Japan, he appeared to have had less than sufficient opportunities to communicate with his father, and he had been largely dependent on his mother. Furthermore, the Supreme Court found that the restraint at issue was unequivocally unlawful, taking into account that the mother had refused to follow the family court’s order to return the child to the United States, and that there was no special circumstance in which removing the child would be significantly unjust. This Supreme Court’s unanimous decision may be an indication that the Court will put significant weight on compliance with The Hague Convention on the Civil Aspects of International Child Abduction.



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