2020.04.16

2019 (Kyo) 14

Minshu Vol. 74, No. 3

Decision concerning the clause to the effect that the child is to be returned, which is included in the terms of conciliation of domestic relations regarding a case seeking the return of a child prescribed in the Hague Convention Implementation Act, and the analogical application of Article 117, paragraph (1) of the same Act

Case of appeal with permission against the order of the court of appeal to dismiss an appeal against an order to dismiss a petition for modification of a final order

Decision of the First Petty Bench, quashed and remanded

Tokyo High Court, Decision of May 15, 2019

In proceedings for conciliation of domestic relations regarding a case seeking the return of a child prescribed in the Hague Convention Implementation Act, if the court finds, after conciliation is reached to the effect that the child is to be returned, that it is no longer appropriate to maintain the clause on the return of the child due to a change in circumstances, the court may modify the clause on the return of the child, upon a petition of a party, by analogically applying the provisions of Article 117, paragraph (1) of the same Act.

Article 117, paragraph (1) and Article 145, paragraph (3) of the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (Hague Convention Implementation Act)



Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (Hague Convention Implementation Act)

(Modification of Final Order)

Article 117, paragraph (1)

(1) After a final order to order the return of a child has become final and binding, when the court which made the final order to order the return of a child (or where an immediate appeal was filed against such order and the court in charge of an appeal made a final order to dismiss such immediate appeal with prejudice (excluding the order under the provision of Article 107 (2); the same shall apply in this paragraph), said court in charge of the appeal) finds that it is no longer appropriate to maintain said order due to change in circumstances, said court, upon petition of a party, may modify said order (or where the court in charge of an appeal made a final order to dismiss such immediate appeal with prejudice, said final order); provided, however, that this shall not apply after the child has been returned to the State of habitual residence.

(Special Provisions on the Domestic Relations Case Procedure Act)

Article 145, paragraph (3)

(3) Where the case is referred to the conciliation of domestic relations pursuant to the provision of the preceding Article, if an agreement on the return of the child is reached between the parties and is stated in a record, a conciliation is deemed to be concluded and the part of the statement regarding the agreement on the return of the child, notwithstanding the provision of Article 268 (1) of the Domestic Relations Case Procedure Act, shall have the same effect as a final order to order the return of the child that has become final and binding.

The decision in prior instance is quashed.

The case is remanded to the Tokyo High Court.

Concerning Reason I for appeal stated by the counsel for appeal, ONUKI Kensuke, TAKAGI Yumiko, and YAMAMOTO Nao

1. According to the case records, the developments of the case are as follows.

(1) The appellant, the appellee, and their child (hereinafter referred to as the "Child") lived together in Russia. The Child entered Japan in May 2016 (at the age of nine), and the appellant in August 2016, respectively.

(2) In November 2016, the appellee filed a petition for the return of the Child pursuant to the provisions of 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"). The case based on this petition was referred to conciliation of domestic relations, and in January 2017, the appellant and the appellee reached an agreement that the appellant would return the Child to Russia by February 12, 2017, and another agreement on expenses for child support, visitation or other contact with the Child, and other matters, and these agreements were entered in the record (hereinafter the conciliation thus reached is referred to as the "Conciliation" and the clause in the terms of the Conciliation to the effect that the Child is to be returned is referred to as the "Return Clause").

(3) The Child has remained in Japan even after February 12, 2017.

2. In this case, the appellant seeks a modification to the Return Clause pursuant to the provisions of Article 117, paragraph (1) of the Implementation Act, alleging that after the Conciliation was reached, it is no longer appropriate to maintain the Return Clause due to a change in circumstances.

3. The court of prior instance dismissed the appellant's petition for modification, determining as follows.

When a final order to order the return of a child becomes final and binding, the return of the child should be carried out promptly. However, Article 117, paragraph (1) of the Implementation Act provides that this final order may be modified from the perspective of the welfare of the child exceptionally when there has been a change in circumstances, thus, limiting the scope of subjects of modification to such final order. Furthermore, in proceedings for conciliation of domestic relations regarding a case seeking the return of a child, when an agreement on the return of the child is reached, another agreement may also be reached after coordinating various interests, and in such case, it is usually inappropriate to modify only the clause to the effect that the child is to be returned (hereinafter referred to as the "clause on the return of the child") which is included in the terms of conciliation for domestic relations regarding the case seeking the return of the child. Therefore, the clause on the return of the child cannot be modified pursuant to the provisions of that paragraph.

4. However, the determination of the court of prior instance mentioned above cannot be upheld, for the following reasons.

Article 117, paragraph (1) of the Implementation Act provides that: "After a final order to order the return of a child has become final and binding, when the court which made the final order to order the return of a child (snip) finds that it is no longer appropriate to maintain said order due to a change in circumstances, said court, upon petition of a party, may modify said order (snip); provided, however, that this shall not apply after the child has been returned to the State of habitual residence." Thus, it is considered that the provisions of this paragraph cannot be directly applied to the clause on the return of the child.

However, the provisions of Article 117, paragraph (1) of the Implementation Act can be interpreted as allowing a modification to a final order to order the return of a child in consideration of a serious effect that such final order could have on the child, although the return of the child should be carried out promptly when such final order becomes final and binding, because there may be a case where it is no longer appropriate from the perspective of the welfare of the child to maintain the final order due to a change in circumstances that arises before the child is returned. The clause on the return of the child has the same effect as a final and binding order to order the return of a child (Article 145, paragraph (3) of the Implementation Act). Even if conciliation is reached to the effect that the child is to be returned, there may be a case where it is no longer appropriate from the perspective of the welfare of the child to maintain the clause on the return of the child, and in such case, it is necessary to modify the clause on the return of the child, as in the case where the final order to order the return of the child becomes final and binding.

Furthermore, in proceedings for conciliation of domestic relations regarding a case seeking the return of a child, when an agreement on the return of the child is reached, another agreement may also be reached with regard to expenses for child support, visitation or other contact with the child, and other matters, and there may be a case where the clause on the return of the child is later modified and it is also necessary to modify other clauses in the terms of conciliation. In such case, it may be possible to modify these other clauses separately by initiating the procedures for modification, etc. under the Domestic Relations Case Procedure Act, and hence, the possibility of such case cannot be regarded as posing an obstacle to considering that the clause on the return of the child can be modified.

For the reasons stated above, it is reasonable to consider that, in proceedings for conciliation of domestic relations regarding a case seeking the return of a child, if the court finds, after conciliation is reached to the effect that the child is to be returned, that it is no longer appropriate to maintain the clause on the return of the child due to a change in circumstances, the court may modify the clause on the return of the child, upon a petition of a party, by analogically applying the provisions of Article 117, paragraph (1) of the Implementation Act.

5. Contrary to the above, the court of prior instance determined that the clause of the return of a child cannot be modified pursuant to the provisions of Article 117, paragraph (1) of the Implementation Act, and dismissed the appellant's petition for modification. This determination contains a violation of laws and regulations that obviously affect the judicial decision. The counsel's arguments are well-grounded, and the decision in prior instance should inevitably be quashed. The Court remands the case to the court of prior instance for further examination.

Accordingly, the Court unanimously decides as set forth in the main text of the decision.

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice YAMAGUCHI Atsushi

Justice MIYAMA Takuya