Refusal of child return order under Hague Pact ruled illegal in Japan

March 16, 2018

Tokyo- Japan's Supreme Court ruled Thursday that it is illegal to refuse an order to return a child under the Hague treaty to settle cross-border custody disputes, unless under exceptional circumstances.

The top court overturned a ruling by Nagoya High Court's Kanazawa branch, which dismissed a petition by a Japanese husband living in the United States requesting that his Japanese wife, a Japanese resident, return their US-born second son living in the Asian country to the United States.

Making a judgment on such a refusal for the first time, the top court sent back the case to the high court.

The Japanese couple used to live in the United States together. As their relationship deteriorated, the wife returned to Japan in 2016 with the son, now 13.

Based on the Hague Convention on the Civil Aspects of International Child Abduction, the husband sought the return of the son. But the wife refused a Tokyo Family Court order to hand over the son to the husband.

As the wife resisted enforcement officers' attempt to separate the son from her, the husband filed a habeas corpus petition.

In the day's ruling, the top court's First Petty Bench said it is difficult for a child to collect in an unbiased way information that is necessary to make a decision.

The wife's side claimed that the second son hopes to stay in Japan. But the court said that the opinion of the son is not necessarily based on his own will as he was 11 years old when he returned to Japan.

The wife is holding the son unjustly and it is basically illegal not to abide by an order to return a child under the treaty, the ruling said.

As the son needs to appear at court in order to realize the handover, the top court sent the case back to the high court.

Since Japan joined the treaty in 2014, an order to return a child in Japan to a foreign country under the pact has become final in 23 cross-border custody disputes, according to the Foreign Ministry.

In six cases, enforcement officers tried to separate children from parents, but all attempts failed and none of the children were handed over. Jiji Press