Assistance in Returning a Child to a Foreign State from Japan under the Hague Convention

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.