Japan has finally ordered a child returned to another country under the recently-ratified Hague Convention on child abduction. But there's more, and less, than that going on in the case currently in the news, longtime Japanese family law observer Colin Jones explains in the Japan Times. Yes, the child was ordered returned in the Hague Convention case, but the police gave up on trying to enforce the order when the mother physically would not let go of the child. So the father brought a habeas corpus case, which the trial court resolved, despite the existing return order, by finding that the abducted child liked Japan and didn't like his father. The Supreme Court overturned this, but remanded the case back to the trial court.
To its credit, not only did the Supreme Court find the lower court in error, it even acknowledged the possibility that children unilaterally deprived of contact with one parent might express views unduly influenced by the other, abducting parent. It questioned whether the child was freely expressing his will, and further noted that in international cases such as these, children face the added burdens of dealing with different cultures and languages and, if they are dual nationals, possibly ultimately a choice in nationality. The court also made a clear ruling that absent special circumstances, failure to comply with a return order under the Hague Convention should be considered “conspicuously unlawful” for the purposes of granting habeas corpus relief.
All good stuff, but the end result was to remand the case back to the lower court so that it could procure the child’s presence in the courtroom and consider the matter further. Given that 18 months has passed since the child’s return was ordered, you have to wonder if that court appearance will actually happen.