Consent – Art. 13(1)(a)
The Osaka High Court judges held that, despite the assertion of the mother that the father consented to or acquiesced in the removal of the child to Japan, there was no evidence for this assertion. The father had consented only to the mother going to Japan with the child for a short period of time for the purpose of the funeral of her mother.
Grave Risk – Art. 13(1)(b)
The mother argued that the father’s petition for return of the child be dismissed due to a grave risk that the return would expose the child to physical or psychological harm. However, the Court held that, first, the violent acts of the father did not include direct physical violence towards the child, so there was no risk that the child would be subject to his violence. Secondly, there was no risk that the mother would be subject to violence by the father in such a manner as to cause psychological harm to the child, since there was neither evidence that the father exercised physical violence towards the mother in the child’s presence, nor that the father’s acts of shouting, hitting a closet or tearing his clothes reached a degree capable of causing psychological harm to the child. Third, the judges held that providing care for the child in France itself was not difficult. Although the mother could be arrested in France and hindered from returning there following her wrongful retention of the child, the father, who was living a normal life apart from his alcohol problems and was willing and capable of working, could take care of the child
Objections of the Child to a Return – Art. 13(2)
A Family Court investigating officer extensively interviewed the child when the child was 11 years and 11 months old. The officer confirmed that the child was mature enough to understand his circumstances objectively, build his own opinion and express it in his own words. The child expressed a wish not to be returned to France because of his hatred toward the father and difficulty at school where the child had few friends. The child was much better accustomed to the life with the mother in Japan and had many friends at his Japanese school.
The Osaka High Court judges assessed that the child sincerely expressed his strong wish to stay in Japan. The child arguably not only sought to avoid the psychological burden of returning to France and living with the father, but also compared his school life and friends between France and Japan. The Court reflected on which environment was more advantageous to the child by looking into the future. The child even refused to being returned to France with the mother. In addition, the child was able to explain to the Family Court investigating officer what he did not know or remember and gave a logical explanation about his school life, however when it came to subjects concerning the father, the child became emotional and could no longer give logical explanations. Thus, in the judges’ view, the child can be presumed to have expressed sincere wishes to stay in Japan and cannot be considered to be strongly influenced or induced by the mother. Hence, the judges relied on the child’s objection as a ground for refusal of returning the child pursuant to Art. 28 (1) No. 5 of the Hague Convention Implementation Act.
Author: Prof. Yuko Nishitani