The Hague Convention on the Civil Aspects of International Child Abduction
Our support for matters related to the Hague Convention on the Civil Aspects of International Child Abduction
We will provide support for matters related to the Hague Convention on the Civil Aspects of International Child Abduction, including proceedings for the return of children abducted or wrongfully retained across borders, and assistance in handling applications.
Article 1. What is “Hague Convention on the Civil Aspects of International Child Abduction”?
Japan became a signatory of “Hague Convention on the Civil Aspects of International Child Abduction” (hereinafter referred to as “Hague Convention”) on April 1, 2014.
This convention stipulates the procedure and the relief for cases that a child has been unlawfully taken or retained, and it also stipulates procedures for the return of the children to their state of habitual residence.
Japan has established “Act on the Implementation of Hague Convention on the Civil Aspects of International Child Abduction” (hereinafter referred to as “Implementation Act”) to perform and comply Hague Convention.
The following outlines of definitions are stipulated in Implementation Act:
- Removal: to have a child depart from the state where they hold their habitual residence, for the purpose of having the child leave the state.
- Retention: a situation where, after their departure from the state where they hold their habitual residence, a child is prevented from traveling to the state.
- State of habitual residence: a state where the child holds their habitual residence at the time of the removal or immediately before the commencement of their retention. (*partially omitted)
- Unlawful removal: a removal which is in breach of rights of custody that are attributed to a person under the laws and regulations of the state of habitual residence at the time of which the rights have actually been exercised or would have been so exercised but for the removal
- Unlawful retention: a retention which is in breach of rights of custody that are attributed to a person under the laws and regulations of the state of habitual residence at the time of the commencement of which the rights have actually been exercised or would have been so exercised but for the retention
Implementation Act stipulates procedures for return applications by parent whose children have been wrongfully removed or retained. For instance, if a married couple living in the United States experiences a deteriorating relationship, and one spouse, without the other’s consent, takes the child back to Japan, the parent from whom the child was taken (in this example, the parent residing in the United States) can generally file a return application with the Japanese family court (The Tokyo Family Court or The Osaka Family Court).
However, it is important to note that even if a court in Japan orders the return of the child, it only mandates the return to the state of habitual residence and does not require to return to the parent from whom the child was taken (in this example, the parent residing in the United States).
Therefore, in the given example, even if a Japanese court orders the return of the child to the United States based on the application of the parent from whom the child was taken (the parent residing in the United States), the parent in Japan is not obligated to live with the opposing party in the United States.
Hague Convention’s principle is that issues regarding which spouse is deemed appropriate as the custodian of the child, or the determination of custody in cases of divorce, should be decided in the state of the child’s habitual residence and not in the state to which the child has been taken.
Consequently, after the child is returned to the state of habitual residence, matters related to custody of child shall be resolved in that jurisdiction.
Moreover, since the procedures for filing a petition for the return of a child under Implementation Act are relatively recent and new court precedents are issued one after another, so we think that it is better that those considering such proceedings or those who have received a petition are advised to consult with a legal professional, such as an attorney.
Article 2: Regarding “Petition for the Return of a Child” under the Implementation Act
1. Concerning the Petition for the Return of a Child
Article 26 of Implementation Act states, “A person whose rights of custody with respect to a child are breached due to removal to or retention in Japan may file a petition against the person who has the custody of the child with a family court to seek an order to return the child to the state of habitual residence pursuant to the provisions of this Act (Here, the term of “family court” refers to either the Tokyo Family Court or the Osaka Family Court in Japan, depending on the child’s place of residence, etc.)
Furthermore, as Implementation Act generally prioritize the return of the child, Article 27 of the Act stipulates that the court shall order the return of the child when the petition for return meets under any of the following subparagraphs:
- the child has not attained the age of 16 years;
- the child is located in Japan;
- pursuant to the laws and regulations of the state of habitual residence, the removal or retention breaches the rights of custody with respect to the child attributed to the petitioner;
- at the time of the removal or the commencement of the retention, the state of habitual residence was a Contracting State of Hague Convention.
And, as the return of the child is a fundamental principle, in the case of the movement of a child between countries that are parties to Hague Convention, the petitioner can relatively easily prove these four grounds.
First, in ground ②, it is easily proven with documents such as a passport that the child is under 16 years.
Next, regarding the child’s whereabouts in ground ②, in many cases, the child is likely to be with the Japanese party’s family, and even if the petitioner does not know the exact address of the child in Japan, the petition for the child’s return is still possible. The Ministry of Foreign Affairs will investigate the child’s whereabouts and report to the court in such cases (in principle, the child’s whereabouts are not disclosed to the petitioner in this case).
Furthermore, for ground ④ regarding the contracting country, for example, as reference information, a list of contracting countries is available on the following page of the Ministry of Foreign Affairs website:
https://www.mofa.go.jp/mofaj/files/100012143.pdf
Also, as for foreign laws in ground ③, this is also provided as reference information (with no guarantee of accuracy). Information on the laws of the state of habitual residence regarding custody and guardianship is available on the following page of the Ministry of Foreign Affairs website:
https://www.mofa.go.jp/mofaj/files/100012143.pdf
2. Grounds for Refusal of Return of a Child
However, Article 28 of Implementation Act specifies the following grounds for refusing the return of a child:
Article 28, Paragraph 1 “Notwithstanding the provisions of the preceding Article, the court must 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 (1) through (3) or item (5), the court may order the return of a child if it finds that it serves the interests of the child to have them returned to their state of habitual residence after taking into account all the circumstances:
(1) the petition for the return of a 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 their new environment;
(2) 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 the removal or retention);
(3) the petitioner had consented to the removal or retention before the removal or the commencement of the retention or subsequently approved the removal or retention after the removal or the commencement of the retention;
(4) there is a grave risk that their 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;
(5) the child objects to being returned, in a case where it is appropriate to take account of the child’s views in light of their age and degree of maturity;
(6) 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.
Implementation Act also outlines the provisions of Article 28(2) of the implementing legislation for Hague Convention, emphasizing the factors considered by the court when determining the existence of the item (4) above.
Implementation Act Article 28(2): The court, when judging whether or not the grounds listed in item (4) of the preceding paragraph exist, is to consider all circumstances such as those listed below:
(1) whether or not there is a risk that the child would be subject to physical violence or any other words and deeds 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;
(2) 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 trauma to the child, if the respondent and the child entered into the state of habitual residence;
(3) whether or not there are circumstances that make it difficult for the petitioner or the respondent to provide custody for the child in the state of habitual residence.
To assert a claim based on these refusal grounds, it is essential to gather evidence supporting the factors outlined in Article 28(2). Consultation with a lawyer is recommended to understand the specific evidence required.
In addition, Japanese appellate courts sometimes refuse return of a child by determining that the foreign jurisdiction is not the child’s state of habitual residence.
The concept of “habitual residence” is defined in Implementation Act as a state where the child holds their habitual residence at the time of the removal or immediately before the commencement of their retention. (*partially omitted)
And Japanese courts consider various factors in determining habitual residence, including the duration and purpose of residence, living conditions, the intentions of the parties (parents), the child’s language, school attendance, participation in community activities, adaptation to the local social environment, common custody policies, residence, registration, employment, and the child’s school situation, among other elements.
Notice
1) The English translations of laws on this site were created by processing the English translations from the Ministry of Justice’s “Japanese Laws and Regulations Foreign Language Translation Database System” listed below.
“Japanese Law Translation”
https://www.japaneselawtranslation.go.jp/ja/laws/view/4008
We do not assume and accept any responsibility or liability regarding the translation above.
2) Your use of this site is governed by the laws of Japan and any dispute arising out of or in connection with the use of any information or materials from this website shall be subject to the exclusive jurisdiction of the Tokyo District Court in Japan.
3) Our services shall be provided in Japan only.
4) We do not guarantee any courts or any authorities make decisions same as this website.
5) We do not assume and accept any responsibility or liability regarding this website.