Objections of the Child to a Return – Art. 13(2)
The father argued that B and D had attained an age and degree of maturity at which it is appropriate to take account of their views, and that they objected to being returned to the state of their habitual residence even though their objections primarily focused on specific circumstances or domestic violence that occurred in that state.
It ought to be considered, however, that the Child Abduction Convention is based on the idea that promptly returning abducted children to the state of their prior habitual residence serves their best interests. This is because, first, a cross-border abduction is deemed to have harmful effects on the children by forcing them to live under a different language or in a different cultural environment and, second, disputes over custody on the merits ought to be determined in the state of their habitual residence where they are socially embedded. Thus, the children’s views to be considered pursuant to Art 28(1) No 5 of the Implementation Act are not geared toward their opinions on the individual circumstances ― such as particular situations or domestic violence ― that occurred in the state of their habitual residence, but rather toward the question of ?whether the children object to being returned to their state of habitual residence?.
In the underlying case, neither B nor D can be held to object in this sense to being returned to the United States. Even if B were mature enough to have his views heard, separating B from the other siblings and letting only B stay in Japan would entail a grave risk of causing harm to B. Given that B would presumably be sufficiently protected after return with the assistance of the Department of Human Services (DHS), the courts and other institutions in the United States, ordering the return of the children serves B’s interests.
Grave Risk – Art. 13(1)(b)
The father asserts that there is a grave risk of causing harm to the children by returning them to the United States under Art 28(1) No 4 of the Implementation Act.
However, the factors indicated by the father do not suffice to justify his allegations. First, the mother has a good chance to obtain a visa to legally stay in the United States, enabling her to take care of the children properly. Second, though the eldest child G once had fight with B and caused a bruise at B’s leg, there is no evidence that G caused injuries to B otherwise or continuously, nor did the fight in the past go beyond a usual sibling quarrel. Third, there is no evidence that return would cause psychological harm to the children.
Author: Prof. Yuko Nishitani