Supreme Court custody decision – Japan

Supreme Court breaks new ground, ruling in favor of U.S.-based Japanese father in international custody battle



The Supreme Court ruled on Thursday in favor of a U.S.-based Japanese father seeking to reunite with his teenage son, who was taken by his estranged wife to Japan in 2016, concluding that the wife’s dogged refusal to abide by an earlier court order mandating the minor’s repatriation amounts to her “illegally confining” him.

The ruling is believed to be the first by the Supreme Court on cases where return orders by courts have been refused. It is likely to send a strong message regarding domestic legislation that is often slammed as impotent on cross-border child abductions, despite Japan’s commitments under the Hague Convention, following mounting criticism that return orders issued by courts have been ignored.

The Supreme Court sent the case back to the Nagoya High Court.

This latest case involved a formerly U.S.-based Japanese couple whose marital relationship began to deteriorate in 2008. According to the ruling, the wife unilaterally took away one of her children, then aged 11, in January 2016 and brought him to Japan where the two have since lived together.

Upon a complaint by the husband, a Tokyo court issued in September the same year a “return order” for the child under the Hague Convention, but the wife didn’t comply. When a court-appointed officer intervened to recover the child the following year the wife “refused to unlock the door,” prompting the officer to enter her residence via a second-story window, the ruling said. The mother then put up a fierce fight to retain the child, who also articulated his wish to stay in Japan.

On Thursday the top court overturned a Nagoya High Court ruling that acknowledged the child’s desire to stay in Japan. The latest ruling judged the minor was “in a difficult position to make a multifaceted, objective judgment about whether to remain under control of his mother,” citing his “heavy reliance” on her and the “undue psychological influence” she was likely exerting upon him in his life in Japan. The apparent lack of his free will, the ruling said, meant the mother’s attempt to keep the child equated to detention.

“It’s very common for taking parents to alienate the child against their left-behind parents,” said John Gomez, chairman of nongovernmental organization Kizuna Child-Parent Reunion, noting the lower court ruling ignored “the undue psychological influence, the alienation, by the taking parent against the other parent.”

“Previously, when the children give their opinion, ‘Oh I don’t want to return,’ the enforcement process would stop … But this ruling recognizes we shouldn’t only listen to the words themselves, but we should consider the context that they’ve been influenced,” Gomez continued. “It’s a very critical development.”

Japan belatedly signed the Hague Convention in January 2014, signaling a step toward overcoming its longtime notoriety as a “safe haven” for parents who abduct their children from other countries. But questions have long remained over the effectiveness of its domestic legislation tied to the treaty.

Since the pact entered into force in April the same year, there have been six cases where return orders resulted in bailiffs being dispatched to achieve the handover of children, but none were ultimately successful, according to the Foreign Ministry.

Under the law, a fine is first imposed on parents who refuse to comply with a court order to repatriate their children.

Should the parents still refuse to relinquish their control of the children, court-appointed enforcement officers will be dispatched to confront them. The bailiffs, who are tasked with convincing the parents with custody to hand over the children, are authorized to enter and search their premises as well as physically restrain them. But the law also stipulates that the officers are prohibited from exerting any physical force on the children themselves, compromising their ability to ensure the children’s return.

“So if it’s a case where a child is willing to leave but a parent is refusing to let go of the child, an enforcement officer can resort to physical force to restrain the parent. But if it’s the child who is protesting by clinging on to the parent, for example, the officer cannot do the same,” a Foreign Ministry official said.

In its 2017 Annual Report on International Parental Child Abduction, the U.S. government expressed concern over Japan’s “ability to quickly and consistently enforce return orders.”

While courts in Japan have ordered returns under the Convention, the Japanese authorities “were not regularly able to enforce these orders,” the report said, citing one particular case that remained pending for more than 12 months in which law enforcement failed to enforce the return order.

Source:  “Supreme Court breaks new ground, ruling in favor of US-based Japanese father in international custody battle”, The Japan Times, 15 March 2018 


C (Children)

The Supreme Court has given a decision in the case of C (Children).  It is a decision concerned with habitual residence and wrongful retention under the Hague Convention.  There is an article about the decision in the Law Society Gazette and the full judgment can be read here.  I reproduce below the press summary issued by the Court:

In the matter of C (Children) [2018] UKSC 8
On appeal from [2017] EWCA Civ 980
JUSTICES: Lady Hale (President), Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hughes
This matter centres around a married man and woman who, until 2015, had been living together in Australia with their two children. By the end of 2014 the marriage was in difficulties. The mother, who holds British citizenship, wanted to make a trip to England with the children before returning to work from maternity leave. The father agreed to an eight-week stay. The mother and the children came to England on 4 May 2015 where they have since remained. Discussions between the mother and father resulted in the father agreeing to an extension of the eightweek visit up to a year. Based on the extension, the mother gave notice to her employer and looked for work in England.  In September 2015, the mother enrolled the older child at a local pre-school. Without telling the father, on 2
November 2015, she applied for British citizenship for both children who had entered England on six-month visitor visas. Her solicitors wrote a letter to the immigration authorities on her behalf indicating that she and the children could not return to Australia for fear of domestic abuse.
In continuing correspondence, the father pressed the mother on the children’s expected date of return. The mother indicated that she did not know what her plans were but made clear that she would not be returning in May 2016. In June 2016, she expressed her intention to remain in the UK.
The father made an application in the High Court under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “Abduction Convention”). The issue of when the mother had decided not to return to Australia was in contention. The mother’s own case was that by April 2016 she had felt she and the children would not be returning. The arguments before the Court meant that, on any view, there was a decision not to return to Australia before the expiry of the agreed year. The judge held that the children were habitually resident in England and Wales by the end of June 2016 so that mandatory summary return was unavailable under the Abduction Convention. But he accepted mother’s evidence that she did not have the intention, in November
2015, or before April 2016, not to return to Australia.
The mother now appeals against the Court of Appeal’s decision. The issues in the appeal are: (1) what is the effect on an application under the Abduction Convention if a child has become habitually resident in the destination state before the act relied on as a wrongful removal or retention occurs; and (2) if a child has been removed from
their home state by agreement with the left-behind parent for a limited period can there be a wrongful retention before the agreed period of absence expires (so-called “repudiatory retention”)? The father cross-appeals on the issue of habitual residence.
The Supreme Court allows the appeal and dismisses the cross appeal. Lord Hughes gives the lead judgment with whom Lady Hale and Lord Carnwath agree. Lord Kerr and Lord Wilson each give judgments concurring on the two points of principle but dissenting on the outcome of this case on its facts.
Issue 1
When considering the general scheme of the Abduction Convention, the construction that summary return is available if, by the time of the act relied on as a wrongful removal or retention, a child is habitually resident in the state where the application for return is made is unpersuasive. That construction is inconsistent with the operation
of the Abduction Convention since 1980 and its treatment by subsequent international legal instruments. [19]
The Abduction Convention is designed to provide a summary remedy which negates the pre-emptive force of wrongful removal or retention and to defeat forum-shopping. [21] The point of the scheme adopted by the Abduction Convention was to leave the merits to be decided by the courts of the place of the child’s habitual residence. If the forum state is the habitual residence of the child, there can be no place for a summary return to
somewhere else, without a merits-based decision. This understanding of the scheme of the Abduction Convention is reflected in the provisions of both the Revised Brussels II Regulation and the 1996 Hague Convention on Recognition, Enforcement and Coperation in respect of Parental Responsibility and Measures for the Protection
of Children. [23]
The Abduction Convention cannot be invoked if by the time of the alleged wrongful act, whether by removal or retention, the child is habitually resident in the state where the request for return is lodged. In such a case, that state has primary jurisdiction to decide on the merits, based on the child’s habitual residence, and there is no room
for a mandatory summary decision. [34]
Issue 2
Repudiatory retention has been recognised in some jurisdictions, but no generally accepted international practice or authority exists on the point. [39] The desirability of inducing a prompt change of mind in the retaining parent is an argument for recognising a repudiatory retention when and if it occurs. The 12 month time limit for seeking mandatory summary return runs from the point a repudiatory retention occurs and that period may pass before an applicant is aware of the repudiatory retention. However, it is not a limitation period but a provision in the child’s interest to limit mandatory summary return. Once elapsed it renders a summary return discretionary.

The concern that repudiatory retention would make Abduction Convention applications longer and more complicated is a point well made. However, Family Division judges are used to managing applications actively and controlling any tendency to spill outside the relevant issues. Further, if repudiatory retention requires an overt act or statement,
this lessens the danger of speculative applications. [46-48]
Repudiatory retention is possible in law. The objections to it are insubstantial, whereas the arguments in favour are convincing and conform to the scheme of the Abduction Convention. It would be unwise to attempt an exhaustive definition of proof or evidence. An objectively identifiable act of repudiation is required, but it need
not be communicated to the left-behind parent nor does an exact date need to be identifiable. [50-51]
On the present facts there could not have been a wrongful retention in April 2016 as the mother’s internal thinking could not by itself amount to such. If she had such an intention in November 2015, the application to the immigration authorities could have amounted to a repudiatory retention. But it was open to the judge to believe
the mother’s evidence that she did not possess this intention in November. [55] There is no basis in law for criticising the judge’s decision as to habitual residence. [57]
Lord Kerr dissents on the outcome of this case on its facts. He expresses misgivings about repudiatory retention requiring an overt act by the travelling parent. [63] The judge’s finding that wrongful retention did not arise in this case could not be reconciled with his statement that the mother had concluded by April 2016 that she and the children should remain in England. [68] Moreover, the judge’s conclusion that the mother had not formed any intention to retain the children in England in November 2015 is insupportable as he failed to address the question of what bearing the letter of November 2015 had on her intention. [72]
Lord Wilson also dissents on the outcome of this case on its facts. The solicitor’s letter to the immigration authorities in November 2015 represented a major obstacle to any finding that the mother had not by then intended to keep the children in the UK indefinitely. The judge’s finding as to the mother’s intention in November
2015 was flawed and the Court of Appeal were correct to order a fresh inquiry into her intention. [91-92]
References in square brackets are to paragraphs in the judgment
NOTE: This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document.
Judgments are public documents and are available at:


Japan’s Supreme Court hands down a road map for parental child abductions

Japan’s Supreme Court hands down a road map for parental child abductions
by Colin P.A. Jones


Dec 31, 2017



In 2014, after years of diplomatic pressure and countless horror stories about parents losing all contact with children taken to or retained in Japan, the nation finally joined the Hague Convention on the Civil Aspects of International Child Abduction. This should have relegated to history Japan’s growing reputation as a “black hole” of abduction of children by one parent — usually the Japanese one —after the breakdown of a marriage or other relationship.
Less than four years later, in a sadly predictable ruling issued on Dec. 21, Japan’s Supreme Court confirmed abductions can continue. The difference seems to be that lower courts will pay lip service to the ideals of the convention by going through the motions, and various well-intentioned institutions now exist to help achieve the amicable resolutions that should ideally end such cases. But visitation with taken children will still be difficult or impossible, return orders will remain unenforceable and, at the end of it all, courts will be able to find it best for the children to stay in Japan.


The baroque procedural regime adopted by Japan to implement the convention was designed to give lower courts various ways to avoid returning children. Now that the top court has ratified such a result, we can probably expect to see more cases like this.
Children will be the principal victims of such abductions. However, I can’t help but feel sympathy for Japan’s Ministry of Foreign Affairs. It bore the brunt of foreign criticism before Japan joined the treaty and, acting as Central Authority under it since , has devoted significant resources to resolving cases and helping the parents and children involved in such cases. This judgment will probably now make its job that much harder.

Escape hatches do their job

The case on which the court ruled has already been widely reported in the Western press. It involved the four children of an American father and Japanese mother.
According to the Supreme Court’s judgment they were brought to Japan by the mother in July 2014 with a promise they would be returned to their home in the United States the following month. They stayed. The following year the father applied to a Japanese court for a return order under the Hague Convention.
In 2016, the Osaka High Court issued an order that the children should be returned. The court found that the older children (11 at the time they were brought to Japan) were found to not want to return, but returning just the younger ones (who were both 6) would have been bad for all of them.
The basic concept underlying the convention is that children in these situations should be returned — promptly — by courts where they have been taken to their jurisdiction of habitual residence, and decisions about their long-term best interests should be made by courts there. The convention provides a few exceptions where returns can be refused, specifically: (i) if the child “objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views” and (ii) “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
Having obtained a return order, the father then set about trying to enforce it. Here he encountered the unpleasant reality that Japanese family court orders involving children are generally unenforceable. No adults get arrested or even punished for noncooperation, meaning abducting parents (and the family members who often help them) can flaunt the law and the rulings of Japanese courts. This is relatively common knowledge within Japan, where even domestic divorces can see a child unilaterally taken by one parent and the other losing all contact for years. That a case like this would arise under the Hague Convention was always predictable; it was just a matter of when it would happen.
Whilst refusing to cooperate with the return order, the mother filed a motion to have the whole matter reconsidered based on changed circumstances. This was one of the escape hatches built into Japan’s implementing act — the ability of a losing party to seek a new trial (after an appeal!), even though the whole point of the process is to get kids back home as quickly as possible.
The Osaka High Court did rule expeditiously on this motion (impressive when one considers it can take years or even decades for a wrongly convicted criminal defendant to get a retrial based on new evidence) and — lo and behold — found it was no longer appropriate to return the child because the father lacked the wherewithal to support them. (That the father had been forced to pursue ruinously expensive cross-border litigation to remedy the abduction did not seem to matter.)
This was the other bolt-hole built into Japan’s implementing act: the ability of judges to consider the child-rearing capabilities of both parents in determining whether the exception in (ii) above might apply. In other words, the court did a custody evaluation about what would be in the best interests of the children, which is one of the basic things that is not supposed to happen in Hague Convention cases. The basic premise, again, is that custody determinations should be made by courts where the children have been habitually resident.
That this escape hatch would be used in a difficult case such as this was also predictable. Otherwise Japan’s courts would have suffered the ongoing bother and embarrassment of a demonstrably unenforceable return order hanging out in limbo in a high-profile case.

Top court decides on custody

It is this ruling that the five judges on the Supreme Court’s 1st Petty Bench upheld. Judgments of Japan’s Supreme Court are often terse, particularly when dealing with subjects like excessive detention, police misbehavior, constitutional violations and so forth. Part of the rationale may be that, except in rare cases, the top court only considers appeals as to matters of law and does not revisit lower court findings of fact, and the judgment just needs to contain conclusions about the applicable law.
When it comes to family cases, however, the court sometimes breaks from this staid mold and its judges presume to explain what is best for children they have never even met. In their December ruling the court declared in no uncertain terms that “the appellant (father) lacks the financial basis to appropriately care for the children, and cannot be expected to receive ongoing support in their care and support from his family.” It would thus be bad for the children to be returned to America.
That in the course of ruminating on the best interests of the children the judges did not find it worth mentioning that they had been denied all contact with their father during the entire process is simply indicative of how little importance the Supreme Court attaches to the parent-child relationship, at least when it is inconvenient to the result that best suits the court system.
At risk of sounding repetitive, who is best suited to care for the children is precisely the type of decision that the Hague Convention expects to be made in the home country. Moreover, Article 20 of the treaty clearly states that “a decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.” Perhaps the court just found this language inconvenient when for all intents and purposes it conclusively determined the merits of the custody issues in this particular case — where the children would grow up and who would raise them.
There you have it. Courts in other countries should now be on notice that, despite Japan joining the Convention and a diligent Central Authority providing assistance to parents of taken children, return orders issued by the nation’s courts remain unenforceable, contact can be safely denied, Japanese judges looking for ways to let children stay in Japan can simply find fault with the left-behind parent’s imagined parenting capabilities and higher courts will ratify that decision as being “in the best interests of the children.”
By demonstrating such a low threshold for refusing returns and condoning noncooperation with enforcement proceedings, the Supreme Court’s ruling seems likely to serve as a road map for further abductions to come.
Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone.

Source:  “Japan’s Supreme Court hands down a road map for parental child abductions”, The Japan Times, 31 December 2017

Top court reverses 2016 international child custody decision

Top court reverses 2016 international child custody decision

Dec 29, 2017


The Supreme Court has ruled in favor of a mother who sought to revoke a January 2016 decision to hand over her children to their U.S.-based father, saying he lacks the capacity to raise them. The original decision was based on an international treaty to help settle international child custody disputes.
The original Osaka High Court ruling also stated that returning to the United States would be beneficial for the children.


However, according to the Dec. 21 ruling by the Supreme Court’s First Petty Bench, the father lost their home, and his capacity to raise the children has “worsened to the point that it cannot be overlooked.”
The court said the father “does not have the financial capacity to properly take care” of the children, given his inability to provide a stable residence. This kind of arrangement will “not benefit” the children, according to the court.
Originally, the family lived in the United States until the mother returned July 2014 to Japan with the four children, aged 6 to 11. The two parents disagreed on whether to return to the United States, prompting the father in August 2015 to petition for their return to the U.S.
The original high court ruling was finalized January 2016. But in February the same year, the house in the United States was put up for auction, and the father started living at an acquaintance’s house. Additionally, the children refused to return to the United States.
Japan joined the 1980 Hague Convention on the Civil Aspects of International Child Abduction in April 2014. The Hague treaty sets out rules and procedures for promptly returning children under 16 taken or retained by one parent as a result of a failed marriage to their country of habitual residence, if requested by the other parent.
Before Japan joined the treaty, it had been accused of being a haven for international child abductions.
Domestic legislation relevant to the Hague pact stipulates that a decision can be changed if it is deemed that sticking to the original decision would be unreasonable based on a change in circumstances.
Bearing in mind this provision and a change in the father’s financial capacity to raise the children, the mother petitioned to have the 2016 ruling changed.


Source:  “Top court reverses 2016 international child custody decision”, The Japan Times, 29 December 2017

London event: Taking Flight – Domestic Violence and Child Abduction

An international child abduction lecture is taking place next month at the London College where I undertook my LLM degree; the speaker is Baroness Hale of Richmond.  Lady Hale, who I have (successfully) conducted Supreme Court litigation before (albeit not in this context), is a former family law academic (Professor at the University of Manchester, before joining the Law Commission prior to her appointment to the High Court) who now sits as the Deputy President of the UK’s Supreme Court.  With the current President, Lord Neuberger, due to retire later this year, Lady Hale is widely tipped to replace him. I disagree with much of what she has written – more so as an academic than a judge – but, despite this, her views on the many issues thrown into play in this day and age, and as summarised below, by international parental child abduction will be well worth listening to.

Details and booking link below:

UCL Faculty of Laws logo.jpg

Taking Flight – Domestic Violence and Child Abduction

Thursday 16 March 2017, 18:00 – 19:00

Gustave Tuck Lecture Theatre, Wilkins Building, Gower Street, London WC1E 6BT

Speaker: The Rt. Hon. The Baroness Hale of Richmond DBE (The Supreme Court)
Chair: Lady Justice Black

(Head of International Family Justice)
Admission: Free
Accreditation: This event is accredited with 1 CPD hour with the SRA and BSB
Series: Current Legal Problems 2016-17

About the lecture:

Increasing concerns that victims of domestic violence, who flee the country with their children, are effectively being forced, under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, to return to face their abusers, led to calls for a Protocol to the Convention which would make special provision for such cases. Instead, however, the Hague Conference on Private International Law has established a Working Group with the aim of developing a Guide to Good Practice in relation to article 13(1)(b) of the Convention. This provides an exception to the automatic return of children to their country of habitual residence required by article 12, where there is a grave risk that their return would expose them to physical or psychological harm or otherwise place them in an intolerable situation.

The Working Group has not found this an easy task. It raises so many difficult questions of principle. Should concern for the victims of domestic violence ever override the concern for the welfare of children which the Convention aims to protect? When is a risk of harm to a parent also a risk of harm to a child? How is a court in the receiving country to resolve disputes about who did what to whom? How effective are protective measures in the home country? What can the receiving country do both to assist the home country and to provide protection in the meantime? How does the interface with the 1996 Hague Convention on the Protection of Children work? Is Europe a special case? And what about the human rights of the children and both of their parents? Perhaps above all, is there a risk that, in its anxiety to preserve the integrity of the 1980 Convention, the Working Group will lose sight of the reasons why it was set up?

About the speaker:

Brenda Hale is the most senior woman judge in the United Kingdom. She became a High Court Judge in 1994, after a varied career teaching law at the University of Manchester and reforming the law as a member of the Law Commission. She was promoted to the Court of Appeal in 1999 and to the House of Lords in 2004. In 2009, the ‘Law Lords’ became the Supreme Court of the United Kingdom, where she has been Deputy President since 2013. Her principal interests are in family, social welfare and equality law.

About Current Legal Problems:

The Current Legal Problems annual lecture series was established over sixty years ago. The lectures are public, delivered on a weekly basis and chaired by members of the judiciary.

The Current Legal Problems (CLP) annual volume is published on behalf of UCL Laws by Oxford University Press, and features scholarly articles that offer a critical analysis of important current legal issues.

It covers all areas of legal sponsorship and features a wide range of methodological approaches to law. With its emphasis on contemporary developments, CLP is a major point of reference for legal scholarship.

Find out more about CLP on the Oxford University Press website

To book:  “Taking Flight – Domestic Violence and Child Abduction”, UCL Faculty of Laws Events Page