A High Court judge has ordered a child to be returned to Japan under the Hague Convention on the Civil Aspects of International Child Abduction.
This is a multinational agreement “to provide a swift mechanism to secure the safe return of a child wrongfully removed or retained from their home country”. It can only apply if both countries involved are signatories.
In Re R (A Child), a Japanese mother brought her seven year old son with her for a yearlong academic visit to Cambridge University. The father, a professor of economics at a university in Japan, claimed she had done so without his permission.
The couple married in 2005 and separated in 2013, but have not yet divorced.
Before the mother’s move to England, the family had attended mediation in Japan. They came to an agreement about how the parents would interact, and when each of them would take care of their son. However, there was “no consensus” reached when the mother’s move was discussed.
Due to their failure to come to an agreement on that point, the mother applied to the Family Court in Tokyo so a judge could rule on the dispute. On the same day as the application was filed, the mother flew to England with her son anyway.
In response, the father applied to have his son returned under the Hague Convention.
The mother said the father’s application should fail because he could not prove he had a right to custody, nor that his son was habitually (legally) resident in Japan when the application was issued. Under Article 3 of the Convention, those are necessary for a successful application.
Sitting as a Deputy High Court judge, Her Honour Judge Finnerty noted that under Japanese law, married parents have joint custody of their children unless there is a court order to the contrary. As the parents did not get a divorce, the judge ruled that the father did have a right to custody.
She added that “the mother cannot unilaterally change the habitual residence of [her son] without the agreement of the father”.
The mother’s other defence was under Article 13 of the Convention, which stipulates that a child is not to be returned if the applying parent agrees to the removal, if the child has serious objections to returning, or if “there is a grave risk” of physical or psychological harm.
Judge Finnerty said that the evidence showed “unequivocally” that the father had not given his consent to the move. Based on an interview with the son performed by Cafcass, the judge also found that he “does not object to returning to Japan”.
Using the standard set by Baroness Hale in Re E (Children Abduction Custody Appeal) , the judge ruled that there was not enough evidence for the mother’s Article 13 defence to be established.
She therefore ordered that the child be returned to Japan forthwith.
This case is the first of its kind since Japan joined the Hague Convention on Child Abduction earlier this year.