2017 (Ju) No. 2015 Case of a request for Habeas Corpus relief

INCADAT legal file Hague parental abduction

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The parents are both Japanese nationals. After their marriage, they first resided in Japan. The first son was born there in 1996 and the daughter in 1998. After the entire family moved to the United States, the second son was born there in 2004. He is a national of Japan and the United States. In January 2016, the mother took the second son aged 11 years and 3 months to Japan without the consent of the father and remained with the son thereafter in Japan. The 1980 Hague Child Abduction Convention entered into force between the United States and Japan on 1 April 2014.
In July 2016, the father filed a petition for return of the second son with the Tokyo Family Court. The judges rendered a return order in September 2016, which became final and binding. Following a petition of the father, in May 2017 a court execution officer attempted to carry out an execution by substitute and sought to persuade the mother to release the child, but she resisted strenuously. The child also objected to being returned and expressed his wish to stay in Japan. The officer closed the case for failure to release the child.
The father petitioned for divorce and custody before the courts in the United States and obtained a sole custody order by August 2017. The child told his attorney that he sincerely wished to stay in Japan after being well settled there, and that he was relieved to be away from the father who could become violent. The mother cared for the son while working as a pharmacist, and the son went to school and had good relationships with his mother, relatives and friends in Japan.
The father filed a petition at the Nagoya High Court for a habeas corpus order, which aims to restore freedoms of an illegally restrained person by expeditious summary proceedings. The petition was dismissed on the following grounds. First, the judges opined that the son had become settled in the social and family environment in Japan and freely expressed his wish to stay there, such that the care of the mother did not constitute a ?restraint” under the Habeas Corpus Act and Habeas Corpus Rules. Second, the judges held that, even if the care of the mother constituted a ?restraint” under the Habeas Corpus Act and Habeas Corpus Rules, it was not so ?conspicuously illegal” as to fulfill the requirements of a habeas corpus order in the light of the circumstances of care and the age and intention of the son. The fact that the return order had become final and binding was not held relevant in this respect.