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IFL Voices: Children Heard in Japanese Family Court Cases

Makiko Mizuuchi

IFL Voices: Children Heard in Japanese Family Court Cases
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The Japanese Courts have implemented a process by which children can be heard in Hague Convention and custody cases under the Hague Implementation Act, Article 28(1)(v).

Under the Hague Implementation Act, Article 28(1)(v), one of the grounds for refusal of return of a child is that the child objects to being returned, in a case where it is appropriate to take account of the child’s views in light of their age and degree of maturity.  In Japan, the investigation of the child’s objections is not conducted by a judge, but by a family court investigation officer appointed by the family court.

In cases involving child custody, the views of the child are also heard, but similarly, the investigation of the child’s objections is not conducted by a judge, but by a family court investigation officer appointed by the family court.

The family court must hear statements from a child of 15 years of age or older for a ruling of permission for the resumption of parental authority or right to manage assets of the child (Domestic Relations Case Procedural Act 169(1)(iv), Personal Status Litigation Act, 32(4)).

In court practice, even in cases involving children under 15 years of age, the family court investigation officer will generally hear the statements of the child from around the age of 10 and older.

With respect to the Hague case, the Osaka High Court held, on August 16, 2016, regarding the objection of the child to return as follows. The child was removed from France to Japan. “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.”

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