Japan’s Supreme Court Orders Child To Be Returned To The USA In Parental Abduction Case
By J.S. von Dacre –
Investigative Journalist of the International Criminal Court against Child Kidnapping
In a ground-breaking case, Japan’s Supreme Court issued the decision to overturn a ruling by the Kanazawa Branch of the Nagoya High Court, which had previously dismissed a father’s request to have his U.S.-born son returned to the United States.
Both parents, who were Japanese, became embroiled in a lengthy and controversial custody battle when the mother left the United States to return to Japan with their child in January 2016.
Despite the mother’s argument that her 13-year-old son wanted to remain in Japan, the top court referred to the Hague Convention on the Civil Aspects of International Child Abduction, and described the mother’s actions as a “clear illegality”. As such, it ordered for the case to be reviewed by the Kanazawa Branch of the Nagoya High Court.
The treaty calls for the prompt return of a child to his or her country of residence, if requested by the child’s other parent and states:
“From the Convention’s standpoint, the removal of a child by one of the joint holders without the consent of the other is equally wrongful, and this wrongfulness derives in this particular case not, from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise,”
In accordance with the Hague Convention, the Tokyo Family Court had initially issued the mother with an order in November 2016 to have the child returned. However, when the enforcement officers arrived at her home, she would not co-operate.
An officer forcibly entered her premises via a window, but she would still not comply, hiding with her son under a blanket. The authorities left not long after, determining the mission to be unsuccessful.
The father then filed a habeas corpus appeal, which in Latin translates to “produce the body”. It is a jurisdictive procedure that has been around for centuries, stemming from one of the earliest forms of human rights law before any such laws existed. In the United States, habeas corpus was one of the few guidelines regarding human rights in the U.S. Constitution before the Bill of Rights was included.
The Kanazawa Branch of the Nagoya High Court, however, dismissed the father’s claim by saying:
"Custody transfer is against the son's will and the Hague Convention does not influence judgment on a habeas corpus petition."
The ruling reverted to the norm of what Japanese courts did before Japan entered into the Hague Convention. This would have been to consider that the child was happy and his desire to remain in Japan.
The Supreme Court asserted that not only was this in violation of the Hague Convention but that children deprived of one parent, may harbor opinions swayed by the abducting parent.
Professor Kazuhiko Yamamoto of Hitotsubashi University, an expert on the Hague Convention on the Civil Aspects of International Child Abduction, told Mainichi:
"As a result of the (Supreme Court's) ruling, it can be expected that the parents' custody battle will be resolved early through mediation and settlements. It has been pointed out that orders to return children (under a Japanese law concerning the convention) are not being sufficiently fulfilled, so it can be said that this latest decision is a hint that the system needs to be re-evaluated."
To learn more about the crime of parental child kidnapping and the help available to “left behind” parents, please contact the International Criminal Court against Child Kidnapping.
The victims of child & Human rights violation, if not getting timely and suitable justice in the court of law in their countries, can appeal to the INTERNATIONAL CRIMINAL COURT AGAINST CHILD KIDNAPPING.