From Guest Blogger, Hirotaka Honda of The Honda Law Office
Japanese courts are coming in line with other courts about habitual residence in 東京高等裁判所令和元年（ラ）第２４０８号子の返還決定に対する抗告事件, Tokyo High Court Reiwa Gannen(Ra) No 2408 Appeal against a return order of a child.
On 15 May 2020, the Tokyo High (appeal) Court made a ruling, giving more weight on how children adapted themselves to a place when they decide on habitual residence in Hague 1980 cases. The court judged on the habitual residence in the same way as other courts do, looking at every factor that relates to a degree of integration by the child into a social and family environment.
In the first instance, the Tokyo Family Court gave great weight to the intention of the child’s parents (actually a parent) and found habitual residence in the Philippines. The appeal court revoked the decision and dismissed the petition for a return order.
The ruling of the first instance was in line with the ruling of the Osaka High (appeal) Court on 24 February 2017. It wrote,“Habitual residence is the place where the person is always living. It is not a mere residence but a place where the person lives for a long time. Habitual residence should be decided by considering length of dwelling, purpose of dwelling, state of dwelling and other facts. When the child is an infant, like this case, whether the child has got habitual residence should be decided considering the intention of both parents to get a habitual residence.”
While the court was thinking about their decision after I and my friend sent position papers as the counsels for the appellant, luckily the Supreme Court of the United States of America ruled, “What makes a child’s residence ‘habitual’ is therefore ‘some degree of integration by the child in a social and family environment.’” It issued this opinion on 25 February 2020, citing cases of the Court of Justice of the European Union, the United Kingdom, Canada, and Australia.
The Tokyo High (appeal) Court added phrases of “according to the situation of each case” and “degree of how the child adapted himself” to the formula of the Osaka High Court.
The parents were living in Japan and 46 days after the child was born to them, the parents left Japan with the child for the Philippines. They then had been moving among the Philippines, Hong Kong, Vietnam, Taiwan, and Macao for ten and half months. They lived in the Philippines for more than six months. The appeal court pointed out details of the family’s every movement. They explicitly considered: (1) the length of the stay in the Philippines, a long period without a visa, and frequent leaves from the Philippines, (2) the father aiming at tax avoidance, the parents seeking the help of maids, but the father making the maids quit, (3) keeping a residence and office in Japan, the father instructing the employees in Japan, and scarcely doing business in the Philippines, and (4) resister of the child’s address in Tokyo, a health check in Japan, the child benefits of Japanese local government, visiting an infant school in Japan, and no medical, welfare or educational connection with the Philippines. The court did not find the habitual residence in the Philippines.
The case is being appealed.
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