by
Judge Sumiko Ikemoto
06 Jun 1997
Workshop Session 73
"International Child Custody Jurisdiction:
Anatomy of a Hague Convention Case"
Source: http://hiltonhouse.com/articles/Japan_Enforce_Foreign_Jud.txt
1 Introduction001 In recent years, the Family Court in Japan has experienced an increase in cases on court hearings or Conciliation (Mediation) by foreigners or similar cases having to do with foreign laws that concern child custody designations or changes, designations of custodianship and negotiations concerning visitation rights/rights of access. FN01
002 In other instances, there are Child Habeas Corpus cases filed in the District and High Courts, several cases filed for the enforcement of foreign judgments concerning child custodianship to the District Court, separate divorce cases filed in the District Court in Japan even after previous divorce judgments abroad (including cases concerning designation of guardian and custodianship of children included).
003 This paper will examine a few examples of Japanese court solutions on two or three issues that need to be resolved in these situations.
2. Methods in Deciding Jurisdiction of International Disputes
004 There is no written law directly referring to international jurisdiction, in Japan. FN02
005 In most cases it is based on logic. The basic principle here is, of course, based on a principle of civil procedure---Actor sequitur forum rei. [WMH Note: "According as rei is intended as the genitive or res, a thing, or reus, a defendant, this phrase means: The plaintiff follows the forum of the property in suit, or the forum of the defendant's residence." Black's Law Dictionary, 5th Edition] Furthermore, since these cases are special having to do with personal and family matters, there must be limits against mutual consent jurisdiction or general appearance in order to eliminate arbitrary forum shopping. FN03
006 Also, since final judgments involving Japanese citizens may result in a change in the family register, the jurisdiction of the case must be in Japan if a Japanese is a party to the case even though he/she does not reside in Japan.
3. Jurisdiction of International Disputes Concerning Child Custody Dispositions. FN04
007 A. The Family Court and the District Court have two methods in deciding the jurisdiction of international disputes.
008 1) When there is a need for a judgment concerning the custody of a child (designation of a guardian) within a divorce case, and if the divorce case has jurisdiction then in many cases jurisdiction of the custody is not judged, but rather a substantial judgment on custody is made.
009 However, there are some cases from the standpoint of public policy to protect the child's interests, where jurisdiction of the custody is decided independent of the divorce jurisdiction and is given jurisdiction to the country where the child has habitual residence. FN05
010 2) The Japanese Family Court will favor jurisdiction of the child custody hearing to be held in Japan only if the child resides in Japan, basing its judgment on the habitual residence standard. FN06
011 B. In either case, the following points must be considered when deciding the jurisdiction of child custody cases.
012 1) Since the judgment should be based on the wishes of the child's guardian or custodian to provide for the best interests of the child, the country that most appropriate for the court to judge and take action should be the one in which the child actually resides. This demand takes priority over accommodating the other parties countersuit or defense demands. Moreover, since the habitual residence of the child is thought to be within the normal actions of custodianship of the parent and that the thoughts of the parent and child are the same, the habitual residence of a child who is residing in a boarding house somewhere abroad is interpreted to be consistent with the habitual residence of the parent
013 2) According to the Japanese Civil Code, if there is a minor involved within a divorce suit, a guardian for the minor must be decided (Article 819, para. 2). Accordingly, this is thought to be appropriate in that by designating a guardian for the child within the jurisdiction of the divorce court, it prevents the child from ending up with an unstable environment. However, in cases where the child is residing in a peaceful environment away from the parent's divorce dispute, and a guardian is designated without taking into account his or her habitual residence, there is a possibility of violating the child's welfare. In cases where the court is to designate guardianship, and when the child is old enough to express his or her intentions, courts are obliged to hear these intentions. However, if the child lives in a foreign country, there is difficulty in attaining the actual opinion unless one of the parties willingly brings the child to the country where the court is located. Therefore, there is an opinion indicating that the jurisdiction of the child custody disposition within a divorce case should be favored not only to the country where the divorce is located, but also to the child's residing country.
4. Trend of Japanese Courts in Judging the Jurisdiction of International Disputes Concerning Divorce Disputes
014 A. In 1964, the Grand Bench of the Supreme Court of Japan declared a standard for international disputes concerning divorce cases (Judgment of March 25, 1964, in Vol. 18 MINSHU, No. 3, p. 486). In this case, a divorce suit was filed by a women who was a former Japanese citizen married to a man of Korean citizenship. The Court stated, "for a case to be recognized as one of Japanese jurisdiction, in principle, the defendant must have his or her residence in japan. However, on the other hand, in cases where the plaintiff has been left and deserted or if the defendant's whereabouts are not certain or other situations involving similar circumstances exist, in principle, there is no reason for adhering to the above standard. Adhering to the above standard would jeopardize the protection of the status of the party filing for divorce. Therefore, based on the International Private Law concept of justice and fairness, we declare this case to be consistent with the above exception" favoring Japanese jurisdiction. After this judgment, courts in Japan have followed this standard, however, it has been observed by some that courts have judged cases in a case-by-case manner considering each concrete situation and have tried to judge each case appropriately and fairly.
015 B. In a case decided in 1995, one involving a divorce dispute between a Japanese husband and an Italian wife, the husband who resided in Japan brought a divorce suit against his wife who had gone back to Italy. The Tokyo District Court declared that since the couple had lived their married life in Japan, and that the plaintiff was a Japanese residing in Japan, and the defendant living in Italy had also brought a countersuit against her husband, the case should be within the jurisdiction of Japan judging it to be an exception to the rule as in the same manner as the 1964 Supreme Court ruling (Tokyo District Court Judgment of December 26, 1995, HANREI TIMES No. 922, p. 276). There is also Nagoya High Court Judgment of May 30, 1994 in HANREI TIMES No, 89I p. 248. In this divorce case involving a Canadian husband and a Japanese wife residing in Japan, the Nagoya High Court ruled that the 1964 Supreme Court exception should be used for this case. There was a special point in this case, the wife applied for conciliatory divorce in Japan. In opposition to this application, the husband brought suit in the Nagoya District Court declaring invalidity of the divorce application. The wife, in turn, brought a preliminary suit as countercharge for divorce against her husband in the same District Court. FN07
016 C. In a recent Supreme Court Judgment involving a Japanese husband residing in Japan and a German wife residing in Germany, the Court favored the jurisdiction of the case for Japan. FN08 The couples lived in Germany, however, after separation the husband returned to Japan with his child. In the meantime, his wife filed for divorce in Germany. The request was approved by the court procedure of service by publication. Based on the divorce judgment by the German court, the divorce of the parties is valid domestically, however, since the German judgment lacks the requirements for recognition in Japan (Civil Procedure Code Article 200, No. 2, service by publication judgments are not recognized if the Japanese citizen is the defendant and has lost the case, FN09 the marriage between the parties has not legally terminated. To resolve this "limping marriage" (please excuse this technical term), the Japanese courts must accept the husband divorce case since the German courts will not accept another identical divorce case by the husband. Therefore, this is another exception that is in accordance with the previous 1964 Supreme Court ruling.
017 Furthermore, on the District Court level, Urawa District Court Koshigaya Branch declared that Japan did not have jurisdiction of this case because the Jurisdiction of the case belongs to the country where the couple's cooperative married life was spent and where one of the parties still resides. The Tokyo High Court receiving the case as the appellate court declared that the case did have jurisdiction in Japan because one party of the marriage was a Japanese citizen and resided in Japan.
018 E. In this manner, looking at the actual court cases, it is difficult to say that the previous 1964 Supreme Court Judgment has been a definite guideline. Each case has been judged in a case-by-case manner pursuing a fair and rational decision10.
5. In Relation to Foreign Judgments
A. Recognition of Foreign Judgments
019 The commonly accepted opinion and case law suggest that Article 200 of the Civil Procedure Code can be applied for recognition of non-adversarial foreign judgments concerning child custody.
020 The necessary requirement for recognition of a civil, final and conclusive judgment of a foreign court is, first, according to Article 200, No. 1: the court which has given the judgment has jurisdiction. The commonly accepted opinion is that jurisdiction of the case to the foreign court is favored within the Japanese laws and treaties. Osaka High Court Judgment of February 25 1992, HANREI TIMES No. 783 p. 248, Tokyo District Court Judgment of January 14 1994, HANREI JIHO No. 1509 p. 96. However, another minor stance takes the position that the jurisdiction is possible if it is not denied by Japanese laws and treaties. FN11
021 Second, according to Article 200, No. 2: for those losing Japanese defendants protection is afforded if the procedure of service by publication was not used or if a countersuit was actually flied. FN12
022 Third, according to Article 200, No.3: recognition is afforded if the foreign judgment is not contrary to public policy. According to the commonly accepted opinion this standard should be understood to be valid at the time of recognition while other minor opinions suggest theoretically the standard should take effect at the time the judgment is given. FN13
023 Fourth, Article 200, No. 4 is a principle of reciprocity, but application of this clause is under debate. This debate has been settled temporarily by the non-use theory or relaxation of use theory.
024 As we will see, there is no agreement as of yet as to a single method of recognition since there are so many types of opinions in the court cases that follow.
B. Enforcement of Foreign Judgments
025 In Article 24 of the Law of Civil Execution, in order to actualize a foreign judgment by way of compulsory execution, a judgment of enforcement is necessary. This is presented to the District Court for general jurisdiction of the debtor residence. Thereafter, the case is reviewed for whether or not the requirements for Article 200 have been met. If they are not then the case is dismissed.
026 Furthermore, considering the special characteristics of continued living relationships and unstable legal disposition of cases involving child custody, there is an opinion that asserts the child's interests and welfare should be the only factors that ought to be considered. FN14
C. Introduction of Court Cases Recognizing Foreign Judgments Concerning Child Custody
1) Tokyo District Court Judgment of January 30, 1992. (HANREI TiMES No. 789, p. 259)
027 A District Court in the State of Texas, USA, in a divorce case, declared a Japanese mother the sole managing conservator, custodial parent, however, the father brought a suit to the State of Texas in order to change the court order. In the meantime, the mother returned to reside in Japan with her child. A little later, the Texas court approved the change, and the custodial parent changed from mother to father, and the mother was ordered to give up the child to the father. This became the final judgment modifying prior orders in the suit affecting the parent-child relationship. The father brought a claim for an execution judgment to the Japanese court to enforce the previous judgment of the District Court of the State of Texas approving the father as the custodial parent, and to pass the child on from the Japanese mother to the American father. The Tokyo District Court approved the execution judgment recognizing the Texas District Court Judgment since it met the requirements set forth by Article 200, No. 1, No. 3, and No. 4, of the Civil Procedure Code.
2) Tokyo High Court Judgment of November 15, 1993 (HANREI TIMES No. 835, p. 132)
028 In the appellate proceedings, the Tokyo High Court declared "Even nonadversarial cases concerning child custody form rights which are ordered by the courts are analogous and apply to Article 24 of the Law of Civil Execution and Article 200 of the Civil Procedure Code. Satisfying the two requirements of Article 200, No. 1. and No. 3 are enough for recognition. FN15
029 This case also fulfills the jurisdiction requirement (all of the members of the family lived in Texas at the time of filing, the mother and child left for Japan a few days thereafter), however, as far as the public policy requirement is concerned, the child (ten years old girl at the time of judgment) has lived in Japan for the past four years, is becoming accustomed to living in Japan, the child is afraid of the father, and she wanted to stay with her mother. And, since the child is not able to speak English, and forcing the child to live in the United States may jeopardize the best interests of the child. Recognition of the judgment is denied. FN16 The jurisdiction requirement standard during the time of the case needed to be judged with a substantive objective-based conclusion. In cases that deeply involve a child's welfare and rights, the United Nations Charter on Children's Rights specifically forbids judgments that are made on a formal basis.
030 In this particular case, thereafter, the mother was able to transfer custody from the father to herself on February 20, 1995 The Family Court Judgment of October 9, 1995 denied the demand for visiting rights of the father in the following manner: FN17
031 "The family law of the state of Texas (applying law) states that in certain instances (when it is judged that it is against the best interests of the child or when it is judged that there is a possibility of harming the child's physical and emotion welfare) visiting rights of a parent may be limited. In this case, the child (thirteen years of age) held feelings of hatred for the father, and has stubbornly denied having exchanges with him. To approve visitation rights against the child's will would harm the child's sentiments, inflict great psychological harm and ultimately go against the child's welfare and interests."
032 3) Kyoto Family Court Judgment of March 31, 1994 (HANREI JIHOU No. 1545, p. 81)
033 This is a case concerning visitation privileges of the father who is French and his daughter (presently nine years old and in the third grade of elementary school, dual citizenship) who lives with her Japanese mother. The father and mother were married in France, however, they separated and the mother returned to Japan with her child. Thereafter, the father filed for divorce at Cour d'appel de Paris and received a divorce judgment (declaring that the guardian of the child to be the mother with an approval of visitation privileges in France for the father during the child's school vacation periods). The father brought a suit to the Family Court in Japan for demand of visitation privileges, however, the rationality of having the child spend her long school vacations in France became a topic of dispute. Jurisdiction was approved for Japan since the child's habitual residence was Japan. Also, the applying law for this decision was HOREI Article 21 and 28 based on the child's dual citizenship states that the relevant country law is the law where the child habitually resides. Since the child and the mother reside in Japan the Japanese law was decided to be the proper law to be applied. As far as the validity of Cour d'appel de Paris judgment, it was separated into two arguments, one involving the divorce litigation section and the other involving the non-adversarial visitation privilege section. The court decided that the non-adversarial visitation privilege section did not meet the requirements of Article 200 of the Civil Procedure Code and therefore could not be recognized. Also, the logic behind the recognition requirement was that it was held in a country with court jurisdiction under Japanese international procedure, and that it did not violate public policy and custom. It is also judged that since the child was residing in Japan at the time of the filing of the divorce, Japan has exclusive international jurisdiction of the case concerning child custody. For this reason, Cour d'appel de Paris judgment lacks jurisdiction and cannot be recognized in terms of the portion concerning child custody. Therefore, the Family Court of Japan is free to judge on its own merits concerning the question of child custody. Considering the overall situation the child's character, present situation of living (that there is a strong bond between child and mother, passive feelings in going to France), no conversational ability of the child in English or French, the relationship between the father and mother (mother has strong feelings of distrust toward the father, does not want to go to France) --- the court approves visitation privileges within Japan, and denies the father visitation privileges with the child in France until the time she enters junior high school. At that time, the parties should meet again to discuss the father's privileges. FN 18
034 By way of the above judgments, there is a debate that focuses on the special situation of cases concerning child custody that asks in what perspective the situation of the child after the adjudication for which recognition is sought should be considered within the hearing and judgment of the claim for execution judgment. For example, there is theoretical criticism against judgments made within the public policy requirement using method 2) since personal hardships of the child are not considered public policy. And, when this is judged within the recognition requirement, it becomes the court's ex-officio inquiry and in turn making it necessary for the court to be informed of the individual matters of the case even after the foreign judgment has been rendered which is not possible within the court's authority without the assertion of the parties involved.
035 It would be irrational for the plaintiff to be obliged to allege such personal affairs of the adverse party as his/her cause of claim. It should be supposed to the reasons for the affirmative defense of the defendant, or rather to the cause of claim in that adverse party's own action to the former plaintiff. When courts decide on public policy, it should be at the time of the recognition. The foreign judgment shall be recognized by Japanese courts without revision au fond [WMH Note: Basically, at bottom]. The court of execution judgment should not review the merits of the foreign judgment. FN19
036 In fact, there are not so many examples of foreign judgments denied recognition because of violation of the public policy requirement. FN20
037 On the other hand, child custody judgments that do not include investigations into the child's actual living conditions cannot be considered to have grasped the child's true situation. In such cases, there may well be value judgments that decide not to recognize the validity of those judgments on the child.
038 For this reason, there are opinions that take the position of separating child custody cases from divorce cases. These opinions suggest that non-adversarial foreign judgments concerning child custody do not apply to Article 200 of the Civil Procedure Code and that there is a need to form a totally original recognition requirement or standard for child custody cases that include only the child's interests and welfare. FN21
039 The following is my opinion on the method for resolving some of these issues. Since the change in living relationships that occur between parent and child after the foreign judgment concerns changes in situation after adjudication, a claim for execution judgment presented to the Japanese District Courts should follow procedure of hearing and judgment according to Article 200 of the Civil Procedure Code and approve cases that can be recognized swiftly. FN22
040 If there is a change in situation thereafter, and the relevant law that is being applied allows an alternation in judgment, then the claimant should assert his position and change of situation to the Japanese Family Court for a change in child custody. A judgment made within this procedure can be considered a just method. FN23.
041 Therefore, a continuous unjust condition can be avoided by preserving the disposition of the case before hearing it in the Family Court, and an emergency condition can be dealt with by filing an appeal relating to emergency procedures.
042 Also, other than the method of separating jurisdiction of child custody dispositions from divorce cases, if we consider that in many instances child custody cases are conveniently resolved together with the divorce case, then another method that might be considered, for cases involving the child moving to a foreign country after a divorce claim is filed, would be to establish an international system through judicial cooperation to ask the court in the country where the child is living to do an investigation on the actual state of things which would include the intentions of the child if possible. If this system is possible, and this procedure is not properly followed, then the court in the country where the child resides may deny to recognize the judgment. This might also be beneficial for guaranteeing judicial procedure. FN24
6. International Abduction of Children (Parental Kidnapping) and Child Habeas Corpus Cases
043 To bring a Child Habeas Corpus suit under the Child Habeas Corpus Law in Japan, the law requires that there is "restraint " and that the restraint is illegal, that the illegality is prominent, and there is no other appropriate method in remedying the situation. Examples of court cases follow.
A. Supreme Court Judgment of June 29, 1978 (HANREI TIMES No. 388, p. 206).
044 An American wife and a Japanese husband married and lived in Japan with a child of dual citizenship (3 to 4 years of age at the time). The wife accompanied the husband during a business trip to the United States and thereafter decided to stay and live there with her child. The husband returned alone to Japan, but later returned to the United States and seized his child and brought him home still in his pajamas. The child lived thereafter with the parents of the husband. The wife filed for divorce. designation for child custody, and child support in the Superior Court of Los Angeles County. The wife won the case and received the decision of the court (designation of guardianship) without the presence of the husband. This case involved the wife bringing suit to the Japanese court by way of Child Habeas Corpus procedure for custody of her child. The Osaka District Court ruled that jurisdiction of the case was in Japan since during the filing of divorce the defendant was residing in Japan. The court ruled that it could not recognize the American divorce judgment because it did not meet the requirements of Article 200 of the Civil Procedure Code, thereby concluding that the child was under a cooperative guardianship of both parents. The court ruled to accept the mother's claim based on the judgment that the child's happiness comes from custody by either mother or father, and that the mother had former custody of the child before being seized by the father, that the mother has strong bond of love for the child, that the child is presently being taken care of by the father's parents which cannot be considered appropriate, and that the restraint of the child by the father and father's parents is prominently illegaL The Supreme Cour of Japan maintained the lower court's opinion without disagreement. However, after the 1993 Supreme Court Judgment this conclusion can no longer be maintained an claims of similar instances would be dismissed.
B. Supreme Court Judgment of November 19, 1993 (MINSHU Vol. 47, No. p. 5099).
045 This is the case among Japanese parents. According to this decision, to prove that there is prominent illegality of restraint within a cooperative guardianship case, the claimant must clearly show that the child would be happier in the claimant's custody than the present situation. After this ruling, the usage of Child Habeas Corpus suits has become less effective for cases of child custody that occur between the couple before divorce is finalized. Similar cases that have been recognized by lower courts have been dismissed by the Supreme Court. FN25
046 There is significance in judgments concerning child custody dispositions when a dispute occurs, a person who has the right of child custody claims this right against the other that does not. In these cases, the court must decide swiftly about whether or not to have the child given up. In this regard, the 1980 Convention on the Civil Aspects of International Child Abduction is of great significance.
047 However, contrary to this, there may be cases where the Family Court decides the right of custodianship to be changed because the present custodian is judged to be inappropriate. Therefore, it may not be good in all cases to have a swift decision concerning the giving up of a child after a recognition of a Child Habeas Corpus judgment because it may be a very severe burden on the child to move from one custodianship to another. At present, in Japan, the Family Court is recommending preservation of the disposition before hearing and less restrictive use of the Child Habeas Corpus procedure. FN26
7. The Competition Between Cases Under Litigation in Foreign Courts and Japanese Courts
048 A. International competitive suits, namely, court cases in progress litigated in two or more countries with overlapping content becoming the direct point of dispute, are common in general civil litigation, however, quite rare in litigation concerning people. FN27
049 It is believed, however, that in reality many cases of this kind exist.
050 If a case that is being litigated in a foreign court is filed in a court of Japan, the following methods may be used in resolving general civil litigation cases in the Japanese court of law.
051 1) A case that is being litigated in a foreign court and has a possibility of being recognized by a Japanese court in the future, is treated in the same manner as if it were being litigated in another Japanese court at the same time. Therefore, that case will be dismissed for not having standing if filed in a Japanese court thereafter. Also, if the same case being litigated in a foreign court is considered to have violated the basic principle of good faith, then it will not be recognized by the Japanese court for not having met the public policy requirement, and the case that is filed thereafter will be advanced and will take precedent.
052 2) A case that has been judged to be of international jurisdiction, and has been judged to have Japanese jurisdiction because the court in Japan has the most relevant relation to the case (furthermore, in such case, foreign judgments will not be recognized in Japan).
053 3) A suspension of the continuation of proceedings of the case in Japan. The future "dates for proceedings will be designated later" after checking the progress of the foreign court proceedings. The Japanese court will resume proceedings only after the foreign court denies the jurisdiction.
054 B. There are critics that say that in the case of method 1) it would be difficult to judge the future possibility of recognition of a foreign judgment. I have never heard thus far of a case that has taken this stance.
055 Furthermore, several cases including a Tokyo District Court Judgment decided on December 23, 1955 (VoL 6 KA-MINSHU No. 12, p. 1679) rejected the notice of lis pendens (lis alibi pendens) was restricted to only Japanese courts according to Article 231 of the Civil Procedure Code and should be dismissed.
056 The Tokyo District Court Judgment of May 30, 1989 (RANREI JIHO No. l348, p. 91) declared, in a tort case judged to have international jurisdiction in Japan, that the usage of the legal concept of prohibition of lis pendens (suit pending elsewhere) would be analogous to a restriction of a case brought to court if there was a foreign case preceding the Japanese one and there was relative certainty as to the conclusion of it and possibility of recognition of it as a foreign judgment. This case, however, could not decide on the certainty of the conclusion of the case and so could not use the lis pendens prohibition standard. The court did not declare the suit inappropriate.
057 C. In general civil litigation cases, many courts use the 2) method. The Tokyo District Court Judgment of May 30, 1989, mentioned above also used this method. Those courts that have taken this stance and have dismissed litigation for recognition of foreign judgments are: Tokyo District Court Judgment of August 28, 1989 (HANREI JIHO, No. 1338, p. 121); Tokyo District Court Judgment of January 29, 1991 (HANREI JIHO, No. 1390, p. 98); Shizuoka District Court Hamamatsu Branch, Judgment of July 15, 1991 (HANREI JIHO, No. 1401, p. 98).
058 Also, when there are conflicting judgments existing within both the US and Japan courts and there is a claim for execution judgment for a foreign judgment, the Osaka District Court Judgment of December 22, 1977 (HANREI TIMES, No. 361, p. 127) declared that if there is a previous judgment in Japan with the same parties and the same facts to the case with conflicting results, recognition of the foreign judgment would mean a violation of the judicial order. The court dismissed the case denying recognition of the foreign judgment referring to Article 200, No. 3 of the Civil Procedure Code that stated "a foreign judgment in violation of Japan's public order."
059 In opposition to this opinion, critics suggest a position concluding that Japanese judgments are superior to foreign judgments before the final judgment may be used to favor unethical parties to a case trying to intentionally win the case by bringing it to the Japanese court.
060 On a practical standpoint, method 3) is probably most often used. A stay that occurs based on Civil Procedure Code is limited to cases that are not able to be brought to court, and when a difficulty resulting from natural disasters of the parties and the court occurs (Article 220, 221). There is no written rule for suspension concerning international double litigation . A suspension of this kind is decided by the court with the consent of both parties. If a consent is not possible, the only method left is for procedure to go on. FN28
061 D. There are opinions in favor of legalizing a suspension system for these cases in order to maintain the court's integrity for making the appropriate judgment and the parties' right to file a complaint. In order to actualize Article 13 of the Hague Convention Final Act of the Eighteenth Session WMH FN01 requiring suspension, it is necessary for Japan to provide for a system to legalize suspension of judicial procedure in these types of cases. FN29
062 E. Since child custody cases do not involve a time limit in the same manner as credit/claims cases, and since there is a possibility of a change in judgment because of a future change in circumstances, there is very little need for strict restriction against lis pendens when there exists conflicting judgments between two countries.
063 However, one can also imagine a situation where a child is brought back to Japan and a claim being filed in the Japanese Family Court for child custody, while the same child custody claim was filed previously in a foreign court, for the purposes of forum shopping and self-interest. In these instances, there is a need for restraints based on litigative economics, and principles of good faith. In hearings filed after the foreign case, courts must carefully consider the jurisdiction of the child custody case confirming the real habitual residence of the child by examining the legal situation of residency at the time of trial in the foreign country and whether or not the change in residency of the child was illegal. If it is found that there was illegality involved and the child is only considered to be living in Japan and with no residency, the court would be correct in judging no jurisdiction of the case and dismissing it. In this manner, methods and ways of thinking included in Article 7 WMH FN02 of the Hague Convention Final Act of the Eighteenth Session might possibly be implemented in Japanese courts.
064 However, no matter how cunning and sly the parent who is the party of the case may be, since the child's welfare is what is at stake, lithe mitigation of the requirements for jurisdiction will contribute to the child's welfare, then the court may possibly relax the residential requirements. And, if the court finds a child who is in an emergency condition, it may be necessary for the court to competitively favor jurisdiction based on the emergency condition and disregard the question of temporary or habitual residence made by the cunning parent. Moreover, even if the litigation in progress is a divorce case, and the case filed in Japan thereafter is dismissed because of no jurisdiction, the child custody portion of the case should be separated and considered in the method that was mentioned above.
064 For cases that are filed after a child custody judgment within an emergency condition has been decided, the judgment concerning whether or not the public policy requirement is met and recognition of the foreign judgment is approved must be based on a careful consideration of the changes in situation that have occurred after the initial child custody judgment was rendered taking into consideration the emergency condition at the time.
Foot Notes
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1. These cases have been increasing since 1991. According to national statistics, in 1995, there were 8850 disputes, in 1994, there were the most 3905 cases. Within these two years, there were 1133 cases in which involved conciliation of married couples with either side or both being foreigners. Vol. 48 HOSO JIHO No. 12 p.94, 128.
2 There was debate on amending the new Civil Procedure Code validated in January 1998, to include something concerning international jurisdiction, however, it was decided to leave the Code as is. See, Kokusai Minji Sosho Kenkyu-kai, "Kokusai Minji Sosho no Kento Kadai," in NBL No 512, HANREI TIMES No. 903 p.58.
3 For a case involving a denial of effects of the agreement concerning to the international jurisdiction on parental rights disputes in the Family Court, see Tokyo Family Court Judgment of June 20, 1969, in Vol.22 KASAI GEPPO No. 3 p. 110. Also, for an opinion approving international jurisdiction within Japanese courts in matters concerning divorce disputes where the defendant participate in the litigation in Japan although there is no original international jurisdiction, see Onodera, "Shogai Jiken no Saiban Kankatsu oyobi Chotei Rikon no Kahi," KOZA JITSUMU KAJI SHINPAN-HO, Vol. 5, p. 171. There are two cases (Yokohama District Court Judgment of September 21, 1960, in Vol. 11 KAMINSHU No. 9 p.1963, and the Kobe Family Court Judgment of November 11, 1975, in Vol.28 KASAI GEPPO No. 11 p.106) holding that a dispute may have jurisdiction in the plaintiff's country even if the defendant does not reside in the plaintiff's country when the defendant voluntarily agrees to participate in the litigation.
4. For a most informative work on this topic, see Matsubara, "Shogai-teki Ko no Kango-Shobun Funso no Shori," KOZA JITSUMU KAJI SHINPAN-HO, Vol. 5, p. 213.
5. See, Tokyo Family Court Judgment of June 13, 1969, in Vol. 22 KASAI GEPPO No.3 p. 104. This solution has been approved by increasing numbers of courts.
6. See, Tokyo Family Court Judgment of June 20, 1969, in Vol. 22 KASAI GEPPO No. 3 p. 110 and so many cases.
7. For an interpretation of this case, see Taki, SHIHO HANREI REMARKS 1997 (Jo), p. 155.
8 See, The Supreme Court Judgment of June 24, 1996, in Vol. 50 MINSHU No. 7, p. 1451.
9. In practice, this is applied to non-Japanese as well. This law has been clarified in Article 118 of the new Civil Procedure Code.
10. For an interpretation of the 1996 Supreme Court ruling, see Yamashita, JURIST No. 1103, p. 129, and Ebisawa, SHIHO HANREI REMARKS 1997 (Ge), p. 174.
11. Article 118, No. 1 of the new law takes the former position stating, "foreign court jurisdiction is dependent on laws and treaties." Furthermore, according to this new law it has been said that "there will be a positive reason to deny foreign court decisions in cases such as exceptional court jurisdiction interpreted by the Long Arm Law of the United States." See, Kobayashi & Hata, "Waga Kuni no Kokusai Minji Sosho," 1997 May, JIYU TO SEIGI p. 98.
12. Article 118, no. 2 of the new law is written in a manner that does not question nationality; it reads, "The filing of a countersuit by a defendant losing a case after receiving or not receiving the necessary summons or delivery order (excepting service by publication and so on) to begin litigation . . . " Even the interpretation of the present law is similar to academic opinion in that protection is not limited to the Japanese. Suzuki & Mikazuki eds., CHUKAI MINJI SHIKKOHO Vol. 1, pp. 399-; Kobayashi, KOKUSAI TORIHIKI FUNSO HOSEI-BAN, p. 183; Nakano, MINJI SHIKKOHO 2nd ed., p. 179; and others.
13 Article 118, No. 3 of the new law states, "If the content of the case and litigation procedure do not offend the public order or good public morals . . . " In this manner, it takes into consideration demands for upholding public order and morals when considering the foreign cases not only the content of them but also their litigation procedures. This point has been approved within previous interpretations. See, Supreme Court Judgment of June 7, 1983 (Vol. 37 MINSHU No. 5 p. 611).
14. See Okuda, SHIHO HANREI REMARKS (Ge), p 164 (1995)
15. Takeshita, "Hanrei kara mita Gaikoku Hanketsu no Shonin," in HANREI MINJI SOSHO-HO NO RIRON (Ge), p. 525; but see, Ishiguro, KOKUSAI MINJI SOSHO-HO, p. 213, 214, 114. Ishiguro questions this point by saying there is no need in adhering to the separation of normal cases and non-adversarial cases in recognizing foreign administrative action.
16. See supra. note 15, Ishiguro, p. 240, 241. (Footnote 656) He supports this case because the conclusion was just.
17. See, Vol. 48 KASAI GEPPOU No.3 p. 69
18. For an interpretation of this case, see Nakagawa (Family Court Councillor for this case), HORITSU NO HIROBA p. 58 (November 1996); also, see Ebisawa, JURIST No. 1091 p. 255; Takakuwa, SHIHO HANREI REMARKS (Ge), p. 156 (1996).
19. See, Nakanishi, "Gaikoku Hanketsu no Shonin Shikko ni okeru Revision Au Fond no Kinshi ni tsuite (4)," Vol. 136 HOGAKU RONSO No. 1 pp. 6. Nakanishi suggests that when considering the public policy requirement, the court need not be restricted to the facts of the foreign judgment, and that the court is able to do the necessary research on the facts of the case, and give its judgment. This process would not be violating prohibition revision au fond of the judgment. The reason is that the recognition of the public policy requirement is being considered within the Japanese International Civil Procedure Law and the court is considering the results of the foreign judgment's recognition and not the validity of the foreign judgment itself.
20. In a recent Supreme Court Judgment of July 11, 1997 (Vol. 51 MINSHU No. 6 p. 2530), it approved a High Court judgment that rejected a portion of a foreign judgment execution order which concerned punitive damages, nullifying its effect since accepting this judgment would violate this countries public order.
21. See, Okuda, SIHO HANREI REMARKS (Ge) p. 165 (1995)
22. See, Okada, "Gaikoku Hanketsu no Shonin Shikko Yoken to shite no Kojo ni tsuite (4)," No. 152 HOSEI RONSHU p. 465; "Gaikoku Hanketsu no Shonin Shilko Yoken to shite no Kojo ni tsuite (5)," No. 153 HOSEI RONSHU p. 369. According to Okada, for foreign recognition and execution cases concerning the act of giving up the child, the court should review and make decisions on the substantive ground based on the "child's welfare." And as far as reviewing public policy requirements, the court should consider the various factors substantively, and make a decision based on whether the court's execution will bring to bear intolerableness. For an opinion that suggests adopting an easier decision process on execution litigation procedure, see especially, Kobayashi & Oda, "Gaikoku Hanketsu Shonin Yoken Saikento no Hokosei," HANREI TIMES No. 840 p. 36.
23. See, Kono, "Kokusai Shiho no Soten ," JURIST, p. 186. According to Kono, "Foreign cases concerning custody do exist, however, in cases where the execution of these cases are not required and habeas corpus procedure is not involved, and since a dispute of the sentiments of the parent living abroad will come into question, the court should handle the case in a similar manner when court procedure has not been taken in the foreign country."
24. For an article from a court administrative point of view that has organized academic opinion and court cases according to issues, see Kobayashi, "Gaikoku Hanketsu no Shikko Hanketsu ni tsuite," HANREI TIMES No. 937 pp. 33.
25. For a similar decision, see Supreme Court Judgment of April 26, 1994 (Vol. 48, MINSHU No. 3, p. 992.
26. For a recent instructive interpretation of that time, see Segi "Ko no Hiki Watashi to Jinshin Hogo Seikyu," HANREI TIMES No. 919 p. 4.
27. There are cases where a Japanese parent returns to Japan with the child while a divorce case is in process in the foreign country, and files a new divorce suit (in similar form) in Japan. In most cases, the Japanese parent does not begin the litigation immediately. During this waiting period the decision of the case in the foreign country is handed down and the execution of the foreign judgment is disputed.
28. For reference material on this period, see Sawaki "Kokusai-teki Sosho Kyogo," in SHIN JITSUMU MINNJI SOSHO KOZA Vol. 7, pp. 105; Sakai, "Kokusai-teki Niju Kiso ni kansuru Kaishakuron-teki Kosatsu," HANREI TIMES No. 829 p. 39; Kobayashi "Kokusai Sosho Kyogo (Ge)," in NBL No. 525, p. 34; Kobayashi, "Kokusai Sosho Kyogo (Ge) in NBL No 526, p. 37; Dogati & Hayakawa "Kokusai-teki Sosho Kyogo no Shomondai," Kokusai Shiho no Souten JURIST, p. 253; Ishiguro, "Gaikoku iii okeru Sosho Keizoku no Kokunai-teki Koka," in KOKUSAI MINJI SOSHO HO NO RIRON, p. 323; Watanabe, "Kokusai-teki Niju Sosho-ron," HANREI MINJI SOSHO HO NO RIRON (Ge), p. 476.
29 During the amendment process of the Civil Procedure Code, a suspension system for cases of international conflicting judgments was presented, however, in the end it was passed up. For detnils on this see Kobayashi, supra, Note 28, NBL No. 526, p. 41
WMH Foot Notes
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01 Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children.
Art. 13 reads as follows:
1 The authorities of a Contracting State which have jurisdiction under Articles 5 to 10 to take measures for the protection of the person or property of the child must abstain from exercising this jurisdiction if, at the time of the commencement of the proceedings, corresponding measures have been requested from the authorities of another Contracting State having jurisdiction under Articles 5 to 10 at the time of the request and are still under consideration.
2 The provisions of the preceding paragraph shall not apply if the authorities before whom the request for measures was initially introduced have declined jurisdiction.
02 Art. 7 reads as follows:
1 In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and a each person, institution or other body having rights of custody has acquiesced in the removal or retention; or b the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.
2 The removal or the retention of a child is to be considered wrongful where _
a it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
3 So long as the authorities first mentioned in paragraph 1 keep their jurisdiction, the authorities of the Contracting State to which the child has been removed or in which he or she has been retained can take only such urgent measures under Article 11 as are necessary for the protection of the person or property of the child.