The Hague Convention (Convention on the Civil Aspects of International Child Abduction)　

Procedures for the Order for the Return of Child

Procedures for the Order for the Return of Child are the procedures under which a court orders a person (the respondent) that takes custody of a child under the age of 16 in Japan to return the child to a contracting state to the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter referred to as "the Hague Convention") where the child had habitual residence (hereinafter referred to as "the state of habitual residence"), when removing the child to Japan or retaining the child in Japan infringes on the petitioner's rights of custody of the child according to the law of the state of habitual residence.

【Grounds for Return of Child】

(1) The child has not attained the age of 16.

(2) The child is located in Japan.

(3) Pursuant to the laws or regulations of the state of habitual residence, the removal or retention breaches the rights of custody with respect to the child attributed to the petitioner.

(4) At the time of the removal or the commencement of the retention, the state of habitual residence was a Contracting State to the Hague Convention.

Even when all Grounds for Return of Child are recognized, if any of the Grounds for Refusal of Return of Child, which are listed from (1) to (6) below, is found, the court shall not order the return of child (The court may still order the return of child if it recognizes, considering overall circumstances, that return of child to the state of habitual residence would serve the interests of the child, even if there exists any of the grounds listed from (1) to (3) or (5) below.).

【Grounds for Refusal of Return of Child】

(1) In the case where the petition for return of child was filed after the expiration of the period of one year since the time of the removal or the commencement of the retention of the child, and the child is now settled in his/her new environment;

(2) In the case where the petitioner was not actually exercising the rights of custody at the time of the removal or the commencement of the retention of the child (except in the case where it could be deemed that the rights of custody would have actually been exercised by the petitioner but for said removal or retention);

(3) In the case where the petitioner had given prior consent or subsequently approved the removal or retention of the child;

(4) In the case where there exists a grave risk that child's return to the state of habitual residence would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation;

(5) In the case where the child objects to being returned, in a case where it is appropriate to take account of the child's views in light of his/her age and degree of development;

(6) In the case where the return of the child to the country of habitual residence would not be permitted by the fundamental principles of Japan relating to the protection of human rights and fundamental freedoms.

In proceedings for the Order for the Return of Child, it is important for both parties to allege and submit evidence adequately from early stages of the proceedings. In addition, legal knowledge of both Japan and the state of habitual residence is necessary for the proceedings. Furthermore, all written documents to be submitted to the court should be prepared in Japanese. Therefore, the person who is considering to file a petition to the court is advised to consult with an attorney. Once you appoint an attorney, the attorney will carry out, as your agent, alleging and proving including preparation of necessary documents. If you are interested in introduction to Japanese attorneys, please refer to Lawyer Referral Service for Hague Convention Cases or contact the Ministry of Foreign Affairs, which is the Central Authority of Japan.

Hague Convention Division, Consular Affairs Bureau, the Ministry of Foreign Affairs
Address：Kasumigaseki 2-2-1, Chiyoda-ku, Tokyo, Japan, 100-8919
Telephone Number：+81-3-5501-8466
Email Address：hagueconventionjapan@mofa.go.jp

In order to prevent the respondent from taking the child out of Japan during the procedures for the Order for the Return of Child, you may file another petition for issuance of an Order of Ne Exeat to bar the other party to take the child out of Japan, or of an Order of Passport Surrender to submit the child's registered passport to the Minister for Foreign Affairs.
In order to give an order on a petition for the return of child, the court requests both parties to submit documents of allegations (written petition, written response, or written statement, etc.) or supporting evidence to the court. Then the court directly hears from the parties about the case. If it is considered necessary, a Family Court Investigating Officer [Note] may meet the petitioner, the respondent or the child to carry out an investigation.

[Note] "Family Court Investigating Officers" are court officials in Japan, who conduct investigation into the fact by order of a judge and submit a report to the judge. They are specialists in the field of human sciences such as psychology, sociology, pedagogy, and social work and engaged in the scientific function of the family court.

For swift determination of the case, both parties are required to allege and prove promptly and accurately

As mentioned above, in procedures for the Order for the Return of Child, the court orders the respondent to return the child to the state of habitual residence as long as the Grounds for Refusal of Return of Child listed from (1) to (6) are not found. The Hague Convention prescribes the necessity to act expeditiously in proceedings. Therefore, both parties are required to allege and prove promptly and accurately for swift determination of the case. Since in procedures for the Order for the Return of Child, as mentioned above, you would need legal knowledge of Japan and of the state of habitual residence, you are advised to request consultation with an attorney depending on your needs.

Procedures for the Order for the Return of Child are not procedures to make decisions on custody rights or parental authority

The procedures for the Order for the Return of Child solely intends the return of the child to the state of his/her habitual residence, and the court will not decide on who should be granted custody rights, or parental authority of the child. Therefore, once the court in Japan makes a decision for return of child, the child will be returned to the state of his/her habitual residence, and then a judgment will be made under the procedures in the said state on who should be granted custody rights or parental authority of the child. Even if an adjudication[Note] case on designation or modification of parental authority holder or on disposition of custody rights of the child or a divorce case where these matters are being examined is pending before a family court in Japan, the family court cannot make a judicial decision on the above mentioned cases, unless the decision to dismiss the petition for the return of child at the judicial authority has become final and binding.

[Note] "Adjudication" is a judge's final decision in domestic relation cases and "adjudication procedures" is a generic term for the procedures relating to adjudication.

During procedures for the Order for the Return of Child, it is possible to have discussion between both parties for an amicable solution

Whether the child should be returned should desirably be discussed between both parties for the interests of the child. Therefore, it is possible to seek a settlement in the procedures, or to have discussion by referring the case to conciliation procedures (Referral to Conciliation) if both parties give consent. For more details about conciliation procedures, refer to "Conciliation in a Case on the Order for the Return of Child"