We can assist in returning a child to a foreign state from Japan in accordance with the provisions of the Hague Convention.
Since the Hague Convention entered into force in Japan in 2014, a left-behind parent whose parental rights have been breached by the removal or retention of a child has been able to file a petition for the return of the child to the country of his/her residence.
Such petitions for the return of children are heard by the Tokyo Family Court and Osaka Family Court, and the proceedings are not open to the public.
Under Article 27 of the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction, the Court, when it finds that the petition for the return of child satisfies all of the grounds listed below, shall order the return of child:
(1) The child has not attained the age of 16;
(2) The child is located in Japan;
(3) Pursuant to the laws or regulations of the country of habitual residence, said removal or retention breaches the rights of custody with respect to the child attributed to the petitioner; and
(4) At the time of said removal or the commencement of said retention, the country of habitual residence was a Contracting State to the Convention.
As for (3) above, the applicant will need to prove that the removal or retention is wrongful.
Article 28 of the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction provides:
(1) Notwithstanding the provisions of Article 27, the court shall not order the return of a child when it finds that any of the grounds listed in the following items exists; provided, however, that even in cases where there exist grounds prescribed in items (i) to (iii) or item (v), the court may order the return of the child if it finds that it serves the interests of the child to have him/her returned to his/her state of habitual residence after taking into account all the circumstances:
(i) The petition for the return of the child was filed after the expiration of the period of one year since the time of the removal or the commencement of the retention of the child, and the child is now settled in his/her new environment;
(ii) The petitioner was not actually exercising the rights of custody at the time of the removal or the commencement of the retention of the child (except in the case where it could be deemed that the rights of custody would have actually been exercised by the petitioner but for said removal or retention);
(iii) The petitioner had given prior consent or subsequently approved the removal or retention of the child;
(iv) There exists a grave risk that his/her return to the state of habitual residence would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation;
(v) The child objects to being returned, in a case where it is appropriate to take account of the child’s views in light of his/her age and degree of development;
(vi) It would not be permitted by the fundamental principles of Japan relating to the protection of human rights and fundamental freedoms to return the child to the state of habitual residence.
(2) The court, when judging whether or not the grounds listed in item (iv) of the preceding paragraph exist, shall consider all circumstances such as those listed below:
(i) Whether or not there is a risk that the child would be subject to the words and deeds, such as physical violence, which would cause physical or psychological harm (referred to as “violence, etc.” in the following item) by the petitioner, in the state of habitual residence;
(ii) Whether or not there is a risk that the respondent would be subject to violence, etc. by the petitioner in such a manner as to cause psychological harm to the child, if the respondent and the child entered into the state of habitual residence;
(iii) Whether or not there are circumstances that make it difficult for the petitioner or the respondent to provide care for the child in the state of habitual residence.
(3) The court shall not dismiss the petition for the return of child only on the grounds that a judicial decision relating to the custody of the child has been issued in Japan or that there is a possibility that a judicial decision relating to the custody of the child issued in a foreign state becomes effective in Japan; provided, however, that the court is not precluded from taking into account the reasons for the aforementioned judicial decision relating to custody of the child in its judicial decision on the petition for the return of child.
Article 28(1)(v) refers to the child’s objection to returning to his/her state of habitual residence.
As not much time has passed since the Act entered into force, the precise meanings of the individual clauses are still subject to interpretation by Japanese courts.