International Family Law (Divorce, Prenuptial Agreement, and Adoption),  Inheritance(Succession, Will and Trust, and Hague Child Abduction Cases in Tokyo, Japan

International Family Law 
and Inheritance in Tokyo,      Japan


 

Legal Profession Corporation CastGlobalToikyo Office          34F Atago Green Hills MORI Tower2-5-1 Atago, Minato-ku, 
Tokyo、105-6234, Japan


Office Hours 9:30~17:30
      on weekdays                                         

Makiko Mizuuchi(Ms), Attorney-at Law, admitted to practice in
Japan and California, U.S.A. is in charge.
      

03-5405-7850

Published Legal Precedents on the Hague Child   Abduction cases

Supreme Court cases

Some court precedents regarding the return of children are listed in INCADAT, the database of the Hague Conference on Private International Law.
If you are interested, please refer to it.
Here is an overview of recent court precedents regarding publicly available discussions.

Of these, 3 are Supreme Court decisions.

・The Supreme Court First Petty Bench decision, March 15 2018(Grounds Non-Convention issues; Habeas Corpus )

Child return was ordered and indirect enforcement failed due to the mother’s strenuous resistance and the child’s objection. The father filed a request for habeas corpus relief.

The Supreme Court ruled that there are special circumstances in which a mature child cannot be seen to be staying with the taking parent based on his free will, so continued care of the child in defiance of a return order can amount to “restraint” under the Habeas Corpus Act and Habeas Corpus Rules. The continued “restraint” by the taking parent in breach of a return order is regardes as “conspicuously illegal”. Therefore, the Supreme Court ruled that the requirements of a habeas corpus order are satisfied. 

The Supreme Court First Petty Bench decision, December 21 2017(Grounds Objections of the Child to a Return)

This is the only Supreme Court decision in Japan that modified a final and binding return order based on a change in circumstances, underArt.117(1) of  the Hague Convention Implementation Act.

Four children (two sets of twins), previously living in the U.S. and wrongfully retained in Japan, were initially ordered to be returned in January 2016.

However, the Osaka High Court amended the order, citing changes in the children's situation.

The Supreme Court upheld this modification and denied the father's petition to enforce the original return order.

Supreme Court First Petty Bench Decision April 16, 2020

The Supreme Court concluded that the return clause reached in conciliation can, upon the party’s request, be modified pursuant to Art 117(1) Implementation Act mutatis mutandis. The Justices quashed the lower instance decision and remanded the case to the Tokyo High Court for further examination. 

   

 

A Recent lower court case

There is a recent lower court case involving a dispute over habitual residence.

Tokyo High Court Decision, May 15, 2020

The Tokyo High Court ruled on the issue of a child's habitual residence in a case involving wrongful retention under the Hague Convention.

Contrary to the initial decision by the Tokyo Family Court, which had prioritized the parents' intentions and found the Philippines to be the habitual residence, the high court reversed the decision.

By focusing on objective factors such as the duration of residence, purpose, living conditions, and the child's integration into social and familial environments, the court found that the child was not habitually resident in the Philippines, and therefore dismissed the petition for return(Hanrei Times No.1502 

 

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Attorney at law
Makiko Mizuuchi
Legal Profession Corporation CastGlobal        Tokyo Office

34F Atago Green Hills MORI Tower                   2-5-1 Atago, Minato-ku, Tokyo 105-6234, Japan

Tel  81+(0)3-5405-7850

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