One of the biggest concerns about using the Hague Abduction Convention in Japan is the idea that a Taking Parent will be able to argue that returning the child to the United States would expose the child to a grave risk of harm, often arguing that the harm comes from the Left Behind Parent’s abusive or violent behavior. This article addresses how Japanese Hague judges make a grave risk determination.
IFL Voices: Protective Measures Considered by Hague Judges in Japan when Assessing Grave Harm
Article 28(1)(iv) of the Hague Implementation Act provides as follows: “[t]here is a grave risk that their [the 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.” Article 28(2) provides situations that might be a grave risk of harm to a child: “(i) whether or not there is a risk that the child would be subject to physical violence or any other words and deeds which would cause physical or psychological harm (referred to as “violence, etc.” in the following item) by the petitioner in the State of habitual residence; (ii) whether or not there is a risk that the respondent would be subject to violence, etc. by the petitioner in such a manner as to cause psychological trauma to the child, if the respondent and the child entered into the State of habitual residence”.
In order to determine whether a child is exposed to a grave risk of harm if returned, protective measures in the habitual residence are considered. Even if there is a possibility that the same violence will be repeated if the child is returned to the country of habitual residence, if there is a legal system in the country of habitual residence to protect the lives of the Taking Parent and the child (protective measures), and if the protective measures can eliminate the violence by the Left Behind Parent, it is determined that there is no risk of violence by the Left Behind Parent.
In a September 15, 2017 decision in the Osaka High Court, in a case where a child was removed from Singapore to Japan, the court stated the following regarding protective measures: “[t]he Singaporean personal protection order was found to have had deterring effects.” [Please note: in this case, the court stated that “the father (left behind parent) was not constantly exercising serious violence against the mother (taking parent)” and noted that the court denied the father’s violence to the mother).
On the other hand, Tokyo High Court held, on July 14, 2015, as follows regarding protective measures. The child was removed from Turkey to Japan. “In light of the situation in Turkey, the judges reasoned that a domestic violence restraining order would not guarantee a sufficient protection for the mother and the child, and that it was not clear whether they could reside in a shelter and have an effective protection there.”