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Japan: Supreme Court Affirms Reversal of Order to Return Children with Dual Citizenship

(Jan. 12, 2018) On December 21, 2017, Japan’s Supreme Court affirmed a High Court decision that reversed a previous order for the mother of four children with dual Japan-US citizenship to return the children to their father in the United States. ( Sup. Ct., Case No. 2017 (kyo) 9 (Dec. 21, 2017) (in Japanese; click characters beside PDF icon at the bottom), COURTS IN JAPAN .)
The appellant was a male US citizen and the appellee his wife, who is a Japanese national. Their four children were born while they were living in the US. In July 2014, the Japanese wife and the four children went to Japan for a six-week stay agreed on by both the wife and husband. In August 2014, the parents agreed that the wife and children’s stay in Japan would be extended because the husband was having difficulty finding employment in the US, and the husband also agreed that the four children would be enrolled in school in Japan in September 2014. The husband and his mother separately visited the children in Japan later that year. ( Id. ; Subcommittee Hearing : Hope Deferred: Securing Enforcement of the Goldman Act to Return Abducted American Children , Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations, 113th Cong. (July 14, 2016) (statement of James Cook), House of Representatives website.)
In January 2015, the husband filed for divorce in the US. In July 2015, he filed an application with the US State Department to request the children’s return to the US. ( Subcommittee Hearing , supra .) The application was based on the Convention on the Civil Aspects of International Child Abduction (Child Abduction Treaty), Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW. Japan also has a law to implement the Convention: Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (Implementation Act), Act No. 48 of 2013 (Japanese Law Translation website). During the investigation procedure, the Osaka Family Court found the husband did not have the financial resources to raise the children. In October 2015, the Osaka Family Court decided the two elder children would stay in Japan and the two younger ones would go back to the US. The Court found, in principle, that all the children should be returned under the Convention and the domestic law implementing the Convention. ( Subcommittee Hearing , supra ; Child Abduction Treaty art. 12; Implementation Act art. 27.) However, the two elder children objected to the return, and the Court found that they were mature enough to object. (Child Abduction Treaty art. 13; Implementation Act art. 28, para. 1, item 5.) Both sides appealed the decision. In January 2016, the Osaka High Court found that the two elder children’s objections were valid but also that it would be better for them to go back to the US. Therefore, the High Court ordered the wife to return all four children to the US. (Case No. 2017 (kyo) 9.) The High Court decision was finalized in the same month. ( Id. )
However, the wife did not comply with the court order. Even after she was ordered to pay 5,000 yen (about US$4,500) per person for every day she did not comply with the return order, she did not return the children. ( Subcommittee Hearing , supra .) In September 2016, the enforcement officers’ attempts to remove the children from their mother’s residence in Japan were not successful because the children refused to leave. (Case No. 2017 (kyo) 9; Simon Scott, Three Years After Japan Signed Hague, Parents Who Abduct Still Win , LINKEDIN (Oct. 30, 2017).)
On the other hand, in February 2016, the house in the US where the family used to live was placed under auction, and in August 2016, the husband moved out the house and began living in one room in a third party’s house. (Case No. 2017 (kyo) 9.)
In early 2017, the wife filed a petition to change the return order because the situation had changed since the order was issued. (Implementation Act art. 117.) The Osaka High Court agreed with the wife and reversed the original decision, declining the husband’s request to return the children to the US. It was this decision that the Supreme Court affirmed in December 2017. The Court stated that the living environment that would be provided for the children had worsened to an extent the Court could not ignore. The Court found that the benefits of the two elder children returning to the US despite their objections had been lost, and that it had become more likely that the two younger children would be in an unbearable situation. (Case No. 2017 (kyo) 9.)

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