2018.03.15

2017 (Ju) 2015

Minshu Vol. 72, No. 1

Judgment regarding a case of request for habeas corpus relief seeking release of a child taken away across borders to Japan, in which care for a child with mental capacity was held to fall under “restraint” referred to in the Habeas Corpus Act and the Habeas Corpus Rules

Case of a request for habeas corpus relief

Judgment of the First Petty Bench, quashed and remanded

Nagoya High Court, Kanazawa Branch, Judgment of November 7, 2017

1. Even if a restrained person (child) taken away by a restraining person (mother) across borders to Japan is now 13 years of age and with mental capacity and is manifesting the intention to stay with the restraining person, under the circumstances held in the judgment, such as the following (1) and (2), it can be said that the restrained person is in a situation where it is difficult for the restrained person to sufficiently obtain the multifaceted and objective information necessary to make a decision regarding whether the restrained person is going to stay with the restraining person, and that the restraining person unduly influences the restrained person’s emotions in making such decision. Therefore, there are exceptional circumstances where the restrained person cannot be said to be staying with the restraining person by the restrained person’s free will, and care for the restrained person by the restraining person falls under “restraint” referred to in the Habeas Corpus Act and the Habeas Corpus Rules.

(1) The restrained person had lived in the United States since his birth until he was brought to Japan and had no living basis in Japan. In such a situation, the restrained person was brought to Japan when he was 11 years and three months of age due to the above-mentioned taking away, and since then, it cannot be found that he has had sufficient opportunities to communicate with the requester (father), who has his residence in the United States, and he has been in a situation where he is compelled to live heavily dependent on the restraining person since he came to Japan.

(2) Even though a final order ordering the restraining person to return the restrained person to the United States became final and binding based on the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction, the appellee showed an attitude that she would not return the restrained person to the United States, and also in the attempted execution by substitute of the return of the child, she resisted the execution fiercely in front of the restrained person.

2. In the case of a request for habeas corpus relief seeking release of a child taken away across borders to Japan, if the restraining person keeps restraining the child by caring for the child without following a final order ordering the restraining person to return the child to the country where the child has habitual residence based on the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction even though the order became final and binding, unless there are exceptional circumstances where release of the child from the care is found to be extremely unjust, the restraint of the child by the restraining person has conspicuous illegality.

(Regarding 1 and 2) Article 2, paragraph (1) of the Habeas Corpus Act

(Regarding 1) Article 3 and Article 5 of the Habeas Corpus Rules

(Regarding 2) Article 4 of the Habeas Corpus Rules



Habeas Corpus Act

Article 2 A person who is physically restrained otherwise than by due procedure under law may make a request for relief from the restraint as provided for by this Act.



Habeas Corpus Rules

Article 3 As used in the Act and these Rules, the term “restraint” means deprivation or restriction of someone’s physical freedom, such as arrest, internment, and detention, and the term “restraining person” means, in the case where the restraint is conducted at a facility, such as a public agency office or a hospital, the administrator of the facility, and in other cases, the person who actually conducts the restraint.



Article 5 A request under Article 2 of the Act may not be made contrary to the intent manifested freely by the restrained person.



Article 4 A request under Article 2 of the Act may be made only when it is conspicuous that the restraint is conducted or the judicial decision or disposition on restraint is made without authority or in gross violation of the means or procedure specified by laws and regulations; provided, however, that if there is an alternative means that is appropriate for providing relief, such request may not be made unless it is evident that it is impossible to provide relief by the alternative means within a reasonable period of time.

The judgment in prior instance is quashed.

This case is remanded to the Nagoya High Court.

Reasons for the petition for acceptance of final appeal filed by the counsels for the final appeal, IMAZATO Keiko and SANO Miyuki

1. In this case, the appellant of final appeal, who has his residence in the United States of America, is requesting release of a restrained person based on the Habeas Corpus Act, alleging that the appellee of final appeal, who is the appellant’s wife and has her residence in Japan, is restraining the physical freedom of the restrained person, who is the second son of the appellant and the appellee, not by due procedure under law.

2. The outline of the facts that became final and binding in the judgment in prior instance is as follows:

(1) The appellant and the appellee, who both have Japanese nationality, got married in Japan in 1994, and had their first son (born in 1996) and their first daughter (born in 1998), and then the four family members immigrated together to the United States in around 2002.

The restrained person was born in the United States on mm/dd, 2004, and since a notification of the intention to reserve Japanese nationality was conducted as prescribed in Article 104, paragraph (1) of the Family Register Act, he has dual United States and Japanese nationality.

(2) The relationship between the appellant and the appellee deteriorated from around 2008. Around January 12, 2016, without obtaining the consent of the appellant, the appellee entered Japan, bringing the restrained person (11 years and three months of age at that time) with her, and since then until now, she has lived with the restrained person in City A and cared for the restrained person.

(3) In July 2016, the appellant filed a petition to the Tokyo Family Court based on Article 26 of the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (hereinafter referred to as the “Implementation Act”), seeking an order to the appellee to return the restrained person to the United States. In September 2016, the Tokyo Family Court rendered a final order ordering the appellee to return the restrained person to the United States (hereinafter referred to as the “Return Order”), and then the Return Order became final and binding.

(4) Based on the Return Order, the appellant filed a petition for the execution by substitute of the return of child (Article 137 of the Implementation Act) to the Tokyo Family Court and obtained an order to have a third party implement the return of child (Article 134, paragraph (1) and Article 138 of the Implementation Act).

On May 8, 2017, court execution officers attempted to carry out an act necessary for releasing the child from the care of the appellee as prescribed in Article 140, paragraph (1) of the Implementation Act (the act, hereinafter referred to as the “Release Implementation”). In the Release Implementation, since the appellee refused to open the front door regardless of repeated requests from the court execution officers, the court execution officers entered the residence by opening up a second-floor window. Even after that, the appellee kept resisting the Release Implementation fiercely by getting into one bed with the restrained person and holding tightly to him. The court execution officers tried to persuade the restrained person to return to the United States, but the restrained person refused to be persuaded, stating that he wanted to stay in Japan and did not want to go to the United States. The court execution officers closed the case involving the Release Implementation on the ground that it was impossible to release the child from the care of the appellee (Article 89, item (ii) of the Rules of Procedures for Case relating to Return of Child under the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction).

(5) The appellant filed an action to a superior court of California in the United States, seeking a divorce from the appellee and also an order regarding custody with respect to the restrained person, etc. By August 15, 2017, the court issued an order to the effect that the appellant was granted sole custody of the restrained person, etc.

(6) On September 27 and October 6, 2017, the restrained person had interviews with an attorney of the restrained person. In the interviews, the restrained person told his attorney that he was deeply frustrated with the manifestation of his intention to stay in Japan being accepted as being the result of the appellee’s pressure, and that he wanted to strongly declare that he desired to live in Japan of his own free will. As reasons for the above-mentioned desire, the restrained person stated that since he had just managed to get accustomed to life in Japan, it would be difficult to return to and live in the United States, and that since the appellant sometimes verbally abused and acted violently to the restrained person when the appellant was drunk, even though not to the extent of injuring the restrained person, the restrained person in one sense felt relieved at being separated from the appellant by coming to Japan. Just for information, the restrained person partially misunderstood the procedure based on the Implementation Act relating to the Return Order and procedure regarding custody, etc. with respect to the restrained person at the superior court of California in the United States, but correctly understood about them through explanation of his attorney.

(7) The appellee is now working as a pharmacist while caring for the restrained person by preparing meals, etc.

The restrained person attended an elementary school in City A after coming to Japan and moved up to a junior-high school in City A in April 2017. The restrained person is working hard at studying and club activities, has good relationships with friends and teachers, is on good terms with the appellee at home and is keeping in touch with his brother, sister and other relatives. Furthermore, the restrained person now has no problem communicating with others in Japanese and is able to express himself logically appropriately for his age.

3. In light of the above-mentioned facts, the court of prior instance dismissed the appellant’s request by determining as follows:

(1) The restrained person has now got accustomed to the living environment in Japan, is establishing good personal relationships and enjoying his school life, and is on good terms with the appellee at home. He seems to be emotionally stable and is growing up soundly, developing appropriately for his age. In addition, there appears to be no circumstance showing that he lacks the capacity to make decisions. In light of these facts, the restrained person cannot be construed to have manifested the intention to stay in Japan in contradiction to his true intent, and it should be said that he manifested such intention by his free will. Therefore, the appellee’s care for the restrained person cannot be found to fall under “restraint” referred to in the Habeas Corpus Act and the Habeas Corpus Rules, and it should be said that the appellant’s request in this case is contrary to the intent manifested freely by the restrained person.

(2) Considering the situation of the appellee’s care for the restrained person, the restrained person’s age and will, even if the appellee’s care for the restrained person falls under “restraint” referred to in the Habeas Corpus Act and the Habeas Corpus Rules, its illegality cannot be construed to be conspicuous, and the fact that the Return Order became final and binding does not affect the result of this case.

4. However, the above-mentioned determination in prior instance cannot be affirmed. The reasons are as follows:

(1) Whether the appellee’s care for the restrained person falls under “restraint” referred to in the Habeas Corpus Act and the Habeas Corpus Rules

Regarding care for a child with mental capacity, if there are exceptional circumstances where such child cannot be said to be staying with the person who has custody of the child by the child’s free will, the care for such child by the above-mentioned person should be construed to fall under “restraint” referred to in the Habeas Corpus Act and the Habeas Corpus Rules (see 1986 (O) No. 644, Judgment of the Second Petty Bench of the Supreme Court of July 18, 1986, Minshu Vol. 40, No. 5, at 991). As in this case, if a child who was taken away across borders to Japan by one of the parents caring for the child makes a decision on whether the child is going to stay with the parent by whom the child was taken away, in light of the fact that such decision making involves the question of which country the child will be based in in the future, and also the question of which nationality the child will choose in the future if the child has dual nationality, such decision making is important and difficult for such child. Moreover, in the case where a child is taken away as mentioned above, since it can be considered that there is a serious emotional conflict between the father and the mother in general, and contact between such child and a parent living in a different country becomes significantly difficult, and such child will be forced to live in an environment of language, culture, etc. that is different from those before the taking away, it can be said that it is not a rare case for such child to be placed in a situation where it is difficult for such child to obtain the comprehensive information necessary to make the abovementioned decision. Given these facts, in determining whether a decision made by such child is by the child’s free will, basically, points such as whether such child has sufficiently obtained the multifaceted and objective information necessary for making the above-mentioned important and difficult decision, and whether the parent by whom such child was taken away unduly influences such child’s emotions should be carefully considered.

Seeing this case from the above point of view, the restrained person is now 13 years of age and can be found to have mental capacity. However, the restrained person had lived in the United States since his birth until he came to Japan and had no living basis in Japan. In such a situation, the restrained person came to Japan when he was 11 years and three months of age, which was a time when he could not be said to necessarily have sufficient mental capacity regarding the above-mentioned problems, and since then, there appears to be no fact that he has had sufficient opportunities to communicate with the appellant, and he can be said to have been in a situation where he is compelled to live heavily dependently on the appellee since he came to Japan. Under the above-mentioned circumstances, even though the Return Order became final and binding, the appellee showed an attitude that she would not return the restrained person to the United States, and also in the execution by substitute of the return of child based on the Return Order, she resisted the Release Implementation fiercely in front of the restrained person. In light of these facts, the restrained person is placed in a situation where it is difficult for him to sufficiently obtain the multifaceted and objective information necessary to make a decision regarding whether he is going to stay with the appellee, including information relating to the meaning of the Return Order and the execution by substitute of the return of child based on such order, and his life after being returned to the United States pursuant to the Return Order. Moreover, it is inevitable to say that the appellee unduly influences the restrained person’s emotions in making such decision.

For the above reasons, it should be said that there are exceptional circumstances where the restrained person cannot be said to be staying with the appellee by his free will, and the appellee’s care for the restrained person falls under “restraint” referred to in the Habeas Corpus Act and the Habeas Corpus Rules. In addition, in light of the above holding, the request in this case cannot be found to be made contrary to the intent manifested freely by the restrained person (Article 5 of the Habeas Corpus Rules).

(2) Whether the restraint by the appellee has conspicuous illegality (Article 2, paragraph (1) of the Habeas Corpus Act, and Article 4 of the Habeas Corpus Rules)

In the case of a request for habeas corpus relief seeking release of a child taken away across borders to Japan, if the restraining person keeps restraining the child by caring for the child without following a final order ordering the restraining person to return the child to the country where the child has habitual residence based on the Implementation Act even though the order became final and binding, unless there are exceptional circumstances where the release of the child from the care is found to be extremely unjust, the restraint of the child by the restraining person should be said to have conspicuous illegality.

Seeing this case from the above point of view, it is obvious that even though the procedure of execution by substitute of the return of child was attempted based on the Return Order, the appellee resisted the procedure and keeps caring for the restrained person without following the Return Order. On the other hand, circumstances where release of the restrained person from the care of the appellee for return of the restrained person to the United States are found to be extremely unjust cannot be found. Therefore, the restraint of the restrained person by the appellee has conspicuous illegality.

5. The determination in prior instance, which arrived at a different conclusion from the above, contains violation of laws and regulations that apparently affects the judgment. The arguments of the counsels for the final appeal are well-grounded on this point, and the judgment in prior instance should inevitably be quashed. Furthermore, based on the aforementioned facts, the appellant’s request in this case should be upheld, and to do so in this case, it is necessary to ensure that the restrained person will appear in court. Taking into consideration such necessity, it is appropriate to have this case examined and decided by the court of prior instance according to the aforementioned holding, and therefore this case is decided to be remanded to the court of prior instance.

Accordingly, the judgment has been rendered as set forth in the main text by the unanimous consent of the justices.

Justice YAMAGUCHI Atsushi

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice MIYAMA Takuya