International Family Law regarding Divorce, 1980 Hague Child Abduction Cases, and Inheritance

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Interpretation of ”A grave risk to the child           defense"(Article 28(1)ⅳ,(2))

Article 28(1)(ⅳ) corresponds to Article 13(1) b) of the Convention.

 In the items of Article 28(2) of the Act, the circumstances which are envisioned to be comparatively common and important of the circumstances are enumerated. These circumstances should be considered in deciding the existence of grounds for refusal of return of (1)~(3) (13). 

Looking at the relevant decisions as well, in the cases where the existence of grounds for refusal of return in Article 28 (1)(ⅳis in dispute, basically, the decisions are made in consideration of the circumstances listed in Article 282).

There is no provision corresponding to Article 28(2) in Article 13 b of the Convention.                                  However, recognizing the existence of grounds for refusal to return due to grave risk to the child under Article 28 (2), which has no corresponding provision in the Convention, will not necessarily be liberally granted. 

Of the circumstances of Article 28(2) of the Act, the circumstance considered most important is the risk of violence, etc. by LBP (Article 28(2)(ⅰ),(ⅱ))

There is a trend of requiring that violence, etc. of a certain intensity be conducted continuously and constantly in order to say that there was violence, etc. by LBP. 

 

Protective measures

If premised on violence, etc. by LBP done in the past, even if it could be said there is a possibility of the same violence, etc. being repeated if the child is returned to the country of habitual residence, if there is a legal system for the protection of TP and the child in the country of habitual residence (“protective measures”) and it can be said it is possible to remove the risk of violence, etc. by LBP through such protective measures, as a result, it is decided that there is no risk of violence, etc. by LBP.

Article 28(2)(ⅲ) 

The below factors are taken into consideration.

 

there is difficult circumstances for care, and in such determination;

 the circumstances of visa status in the country of habitual residence and the possibility of getting such acquisition;

existence and degree of work motivation and work capacity;

 possibility of ensuring workplace and school to be attended by the child, etc.;

existence and degree of assistance to be received from family friends, and support organizations; and

existence and degree of physical and mental health issues of alcohol and drug dependency and mental

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Attorney at law
Makiko Mizuuchi
Legal Profession Corporation CastGlobal        Kawaguchi Office

303 Second Masaki Building, 2-4-5 Namiki, Kawaguchi City               Saitama Prefecture, 332-0034, Greater Tokyo Area                        Half an hour train ride from Central Tokyo 

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