1Act for Implementation of the Convention on the
Civil Aspects of International Child Abduction
(Tentative translation)
(Act No. 48 of June 19, 2013)
Chapter I General Provisions (Article 1 and Article 2)
Chapter II Assistance in Return of Child and Assistance in Visitation or Other
Contacts with Child
Section 1 Designation of Central Authority (Article 3)
Section 2 Assistance in Return of Child
Subsection 1 Assistance in Child's Return to Foreign State (Article 4 to
Article 10)
Subsection 2 Assistance in Child's Return to Japan (Article 11 to Article15)Section 3 Assistance in Visitation or Other Contacts with Child
Subsection 1 Assistance in Visitation or Contacts with Child in Japan
(Article16 to Article 20)
Subsection 2 Assistance in Visitation or Contacts with Child in Foreign
State (Article 21 to Article 25)
Chapter III Procedures for Case relating to Return of Child, etc.
Section 1 Grounds for Return, etc. (Article 26 to Article 28)
Section 2 General Rules for Procedures for Case relating to Return of Child
(Article 29 to Article 31)
Section 3 Procedures for Case Seeking Return of Child
Subsection 1 General Provisions
Division 1 Jurisdiction (Article 32 to Article 37)
Division 2 Disqualification of and Challenge to Court Officials (Article 38
to Article 42)
Division 3 Capacity to Be a Party and Capacity to Perform Procedural
Acts (Article 43 to Article 46)
Division 4 Intervention (Article 47 to Article 49)
Division 5 Counsel and Assistant in Court (Article 50 to Article 54)
Division 6 Procedural Costs (Article 55 to Article 59)
Division 7 Proceedings of Case Seeking Return of Child, etc. (Article 60
to Article 68)
Division 8 Petition, etc. by Means of Electronic Data Processing System
(Article 69)
Subsection 2 Proceedings of Case Seeking Return of Child in Court of First
Instance2Division 1 Petition for Return of Child (Article 70 to Article 72)
Division 2 Date for Proceedings of Case Seeking Return of Child (Article
73 to Article 76)
Division 3 Examination of Facts and Examination of Evidence (Article 77
to Article 87)
Division 4 Understanding of Intention of Child in Proceedings of Case
Seeking Return of Child, etc. (Article 88)
Division 5 Conclusion of Proceedings, etc. (Article 89 and Article 90)
Division 6 Judicial Decision (Article 91 to Article 98)
Division 7 Conclusion of Case Seeking Return of Child other than by
Judicial Decision (Article 99 and Article 100)
Subsection 3 Appeal
Division 1 Immediate Appeal against Final Order (Article 101 to Article107)Division 2 Special Appeal against Final Order (Article 108 to Article 110)
Division 3 Appeal with Permission against Final Order (Article 111 and
Article 112)
Division 4 Appeal against Judicial Decision other than Final Order
(Article 113 to Article 116)
Subsection 4 Modification of Final Order (Article 117 and Article 118)
Subsection 5 Retrial (Article 119 and Article 120)
Section 4 Examination on Status of Performance of Obligation and
Recommendation of Performance (Article 121)
Section 5 Ne exeat order (Article 122 to Article 133)
Chapter IV Special Provisions of Civil Execution Act relating to Execution
Procedures for Return of Child (Article 134 to Article 143)
Chapter V Special Provisions relating to Procedures for Domestic RelationsCaseSection 1 Procedures for Conciliation of Domestic Relations relating to Case
Seeking Return of Child, etc. (Article 144 to Article 147)
Section 2 Special Provisions relating to Procedures for Adjudication of
Domestic Relations and Conciliation of Domestic Relations concerning
Visitation or Other Contacts, etc. (Article 148 and Article 149)
Chapter VI Execution of Judicial Decision on Non-Penal Fine, etc. (Article 150)
Chapter VII Miscellaneous Provisions (Article 151 to Article 153)
Supplementary Provisions
Chapter I General Provisions
(Purpose)
Article 1 The purpose of this Act is, in order to ensure proper implementation of3the Convention on the Civil Aspects of International Child Abduction
(hereinafter referred to as the "Convention") which sets forth the return of a
child to the state where the child held his/her habitual residence, etc. in the
case of his/her wrongful removal or retention, to designate a Central Authority
in Japan and to stipulate its authority, etc., as well as to provide for necessary
court procedures, etc. for promptly returning a child to the state where the
child held his/her habitual residence , and thereby promote the interests of
children.
(Definitions)
Article 2 In this Act, the meanings of the terms listed in the following items
shall be as prescribed respectively in those items:
(i) "Contracting State" means Japan and contracting state(s) (or in the case
where said contracting state has made a declaration under the provision of
Article 39 (1) or Article 40 (1) of the Convention, the portion of its territories
or the territorial unit(s) to which the Convention extends by said declaration)
to the Convention for which the Convention has entered into force with
Japan;
(ii) "Child" means a person who is under the care of his/her parent(s) or other
person(s);
(iii) "Removal" means to have a child depart from the state where he/she holds
his/her habitual residence, for the purpose of having the child leave said
state;
(iv) "Retention" means a situation where, after his/her departure from the state
where he/she holds his/her habitual residence, a child is prevented from
traveling to said state;
(v) "State of habitual residence" means a state (or in cases where said state is a
contracting state to the Convention and has made a declaration under the
provision of Article 39 (1) or Article 40 (1) of the Convention, the portion of
its territories or its territorial unit(s) towhich the Convention extends by
said declaration) where a child held his/her habitual residence at the time of
his/her removal or immediately before the commencement of his/her
retention;
(vi) "Wrongful removal" means a removal which is in breach of rights of
custody that are attributed to a person under the laws and regulations of the
state of habitual residence and at the time of which said rights have actually
been exercised or would have been so exercised but for the removal or
retention;
(vii) "Wrongful retention" means a retention of which is in breach of rights of
custody that are attributed to a person under the laws and regulations of the
state of habitual residence and at the time of the commencement of which4said rights have actually been exercised or would have been so exercised but
for the retention;
(viii) "Return of child" means a return of a child to a Contracting State which is
his/her state of habitual residence.
Chapter II Assistance relating to Return of Child and Assistance in
Visitation or Other Contacts with Child
Section 1 Designation of Central Authority
Article 3 The Central Authority of Japan set forth in Article 6 (1) of the
Convention shall be the Minister for Foreign Affairs.
Section 2 Assistance in Return of Child
Subsection 1 Assistance in Child's Return to Foreign State
(Application for Assistance in Child's Return to Foreign State )
Article 4 (1) With respect to a child who has been subject to a removal to or a
retention in Japan and whose state of habitual residence is a Contracting State,
a person who has the rights of custody of said child under the laws and
regulations of said state of habitual residence, if he/she considers that his/her
rights of custody are breached due to said removal or retention, may file an
application to the Minister for Foreign Affairs for assistance in realizing the
return of child from Japan (hereinafter referred to as "assistance in child's
return to foreign state").
(2) A person who intends to file an application for assistance in child's return to
foreign state shall submit an application form describing the following matters
(limited to those written in Japanese or English) to the Minister for Foreign
Affairs, as provided for by Ordinance of the Ministry of Foreign Affairs:
(i) Name of a person who intends to file the application for assistance in child's
return to foreign state (hereinafter referred to as an "applicant" in this
Subsection) and his/her/its domicile, residence or location of office (limited to
those located in the state of habitual residence of a child who is sought to be
returned in the application for assistance in child's return to foreign state
(hereinafter referred to as a "child pertaining to the application" in this
Subsection; the same shall apply in Article 7 (1) (iv))) ;
(ii) Name, birth date, and domicile or residence of the child pertaining to the
application (if these matters are not identified, a statement to that effect)
and any other necessary matters to identify the child pertaining to the
application;
(iii) Name of a person who is considered to have done a removal or retention of
the child pertaining to the application and any other necessary matters to5identify said person;
(iv) Necessary matters to clarify that the state of habitual residence of the
child pertaining to the application is a Contracting State;
(v) Necessary matters to clarify that the applicant has the rights of custody
with respect to the child pertaining to the application under the laws and
regulations of the state of habitual residence of said child and that the
applicant's rights of custody are breached due to the removal or retention of
the child pertaining to the application;
(vi) Name and domicile or residence of a person who is considered to live
together with the child pertaining to the application and any other matters
necessary to identify said person (if these matters are not identified, a
statement to that effect).
(3) Documents proving the matters listed in item (v) of the preceding paragraph
and any other documents as specified by Ordinance of the Ministry of Foreign
Affairs shall be attached to the application form set forth in said paragraph.
(4) An application for assistance in child's return to foreign state may be filed via
the Central Authority (which means the Central Authority as prescribed in
Article 6 of the Convention; the same shall apply hereinafter.) of a Contracting
State other than Japan. In this case, the applicant shall submit to the Minister
for Foreign Affairs a document describing the matters listed in each item of
paragraph (2) (limited to those written in Japanese or English, or those to
which a Japanese or English translation is attached) and the documents
prescribed in the preceding paragraph.
(Request for Provision of Information relating to Child's Domicile, etc.)
Article 5 (1) The Minister for Foreign Affairs, when an application for assistance
in child's return to foreign state is filed and he/she finds it necessary, in order
to identify the name and the domicile or residence of the child pertaining to the
application and the person who lives together with the child, may request, as
provided for by Cabinet Order, the heads of organs or judicial persons listed
below (referred to as "administrative organs of the State, etc." in Article 15 (1)),
the heads of local public entities or other executive agencies, or any other
persons specified by Cabinet Order as those having the information with
regard to the child pertaining to the application and any person who lives
together with the child, to provide the information on said name, domicile, or
residence in their possession:
(i) Organs established within the Cabinet under the provisions of laws
(excluding the Cabinet Office);
(ii) The Cabinet Office and organs as prescribed in Article 49 (1) and (2) of the
Act for Establishment of the Cabinet Office (Act No. 89 of 1999);
(iii) Organs prescribed in Article 3 (2) of the National Government6Organization Act (Act No. 120 of 1948);
(iv) Extraordinary organs set forth in Article 40 (2) and Article 56 of the Act for
Establishment of the Cabinet Office;
(v) Facilities and other organs set forth in Article 8-2 of the National
Government Organization Act, and extraordinary organs set forth in Article
8-3 of said Act;
(vi) Incorporated administrative agencies prescribed in Article 2 (1) of the Act
on General Rules for Incorporated Administrative Agency (Act No. 103 of
1999);
(vii) Incorporated national universities prescribed in Article 2 (1) of the
Incorporated National Universities Act (Act No. 112 of 2003).
(2) In the case referred to in the preceding paragraph, those who are requested to
provide the information prescribed in said paragraph shall provide the
Minister for Foreign Affairs with said information without delay.
(3) The Minister for Foreign Affairs, in cases where the information provided
pursuant to the provision of the preceding paragraph is not sufficient to
identify the whereabouts of the child pertaining to the application or the
person who lives together with the child while it shows that the child is located
in Japan, may request, as provided for by Ordinance of the Ministry of Foreign
Affairs, the prefectural police to take necessary measures to specify their
whereabouts by providing the police with said information.
(4) In addition to what is provided for in the preceding paragraph, the provision
by the Minister for Foreign Affairs of the information provided pursuant to the
provision of paragraph (2) and the information obtained through the measures
taken by the prefectural police pursuant to the provision of the preceding
paragraph may be permitted only in the following cases:
(i) When, in cases where requested by the applicant who needs to know the
name of the person who lives together with the child pertaining to the
application for the purpose of filing a petition for the return of child under
the provision of Article 26, or filing a petition for an adjudication of domestic
relations or a conciliation of domestic relations seeking to provide for the
visitation or other contacts with the child or to change such provision, to
disclose the name of said person, the Minister for Foreign Affairs discloses
the name of said person to the applicant;
(ii) When, in cases where requested by the court before which the case relating
to the return of child as prescribed in Article 29 or the case pertaining to the
compulsory execution of the return of child is pending, or by the court before
which the case relating to the visitation or other contacts with the child
pertaining to the application or the case pertaining to the compulsory
execution of the visitation or other contacts with the child is pending, to
confirm the domicile or residence of the child pertaining to the application7and the person who lives together with the child, for the purpose of
conducting the procedures thereof, the Minister for Foreign Affairs discloses
said domicile or residence to such court;
(iii) When, in cases where, pursuant to the provision of Article 10 (1), the
Minister for Foreign Affairs notifies a municipality, or a welfare office (which
means the welfare office as prescribed in the Social Welfare Act (Act No. 45
of 1951); the same shall apply in this item and said paragraph.) or a child
guidance center (which means the child guidance center as prescribed in the
Child Welfare Act (Act No. 164 of 1947); the same shall apply in this item
and said paragraph.) established by a prefecture, that there are reasonable
grounds to believe that the child pertaining to the application might be
subjected to abuse, the Minister notifies said municipality, or welfare office
or child guidance center established by a prefecture of the name and domicile
or residence of the child pertaining to the application and the person who is
considered to live together with said child.
(Decision and Notice of Assistance in Child's Return to Foreign State)
Article 6 (1) The Minister for Foreign Affairs, when an application for assistance
in child's return to foreign state is filed, shall make a decision to provide
assistance in child's return to foreign state (hereinafter referred to as "decision
for assistance in child's return to foreign state") and shall give a notice (in the
case where the applicant files an application for assistance in child's return to
foreign state via the Central Authority of a Contracting State other than Japan
pursuant to the provision of Article 4 (4), a notice via said Central Authority;
the same shall apply in paragraph (2) of the following Article and Article 8 (2))
to the applicant to that effect without delay, except where the Minister
dismisses it pursuant to the provision of paragraph (1) of the following Article
and where he/she sends a copy of the documents with regard to the application
for assistance in child's return to foreign state pursuant to the provision of
Article 8 (1).
(2) The Minister for Foreign Affairs, when he/she makes a decision for assistance
in child's return to foreign state, shall take the following measures as
necessary:
(i) Measures prescribed in Article 9 or Article 10;
(ii) Communication with the Central Authority(ies) of Contracting State(s)
other than Japan to implement the Convention;
(iii) Provision to the applicant of the information relating to the procedures
provided for in this Act and other systems under the laws and regulations of
Japan relating to the realization of the return of child or the visitation or
other contacts with the child.8(Dismissal of Application for Assistance in Child's Return to Foreign State)
Article 7 (1) The Minister for Foreign Affairs shall dismiss an application for
assistance in child's return to foreign state if it falls under any of the following
items:
(i) The child pertaining to the application has attained the age of 16;
(ii) It is obvious that the child pertaining to the application is not located in
Japan and the state or territory where the child pertaining to the application
is located is unknown;
(iii) It is obvious that the child pertaining to the application is located in a
state or territory other than Contracting States;
(iv) It is obvious that the location of the child pertaining to the application and
the domicile or residence (or the location of the office if the applicant is a
juridical person or other entity) of the applicant are in the same Contracting
State;
(v) At the time of the removal or the commencement of the retention of the
child pertaining to the application, the state of habitual residence of said
child is not a Contracting State;
(vi) It is obvious that the applicant does not have the rights of custody with
respect to the child pertaining to the application under the laws and
regulations of the state of habitual residence of said child or that said rights
of custody are not breached by the removal or retention of the child
pertaining to the application.
(2) The Minister for Foreign Affairs, when he/she dismisses an application for
assistance in child's return to foreign state pursuant to the provisions of the
preceding paragraph, shall immediately give a notice to the applicant to that
effect and of the reason thereof.
(Sending of Copy of Documents pertaining to Application for Assistance in
Child's Return to Foreign State to Central Authority of Contracting State)
Article 8 (1) The Minister for Foreign Affairs, where it is obvious that the child
pertaining to the application is located in a Contracting State other than Japan
and if the application for assistance in child's return to foreign state does not
fall under item (iv), paragraph (1) of the preceding Article, shall send without
delay a copy of the application form set forth in Article 4 (2) (or if the applicant
files an application for assistance in child's return to foreign state pursuant to
the provision of paragraph (4) of said Article, the documents prescribed in said
paragraph) and the documents prescribed in paragraph (3) of said Article to
the Central Authority of said Contracting State.
(2) The Minister for Foreign Affairs, when he/she sends the documents pursuant
to the provision of the preceding paragraph, shall give a notice to the applicant
to that effect.9(Facilitation of Return of Child, etc. upon Agreement)
Article 9 The Minister for Foreign Affairs, when he/she makes a decision for
assistance in child's return to foreign state, in order to realize the return of
child or visitation or other contacts by the applicant with regard to the child
pertaining to the application based on an agreement between the applicant and
the person who takes care of the child pertaining to the application, may take
necessary measures, such as facilitating the discussion between them.
(Notification pertaining to Child Abuse)
Article 10 (1) The Minister for Foreign Affairs, when the child pertaining to the
application is located in Japan and there are reasonable grounds to believe
that the child might be subjected to abuse, shall notify a municipality, or a
welfare office or a child guidance center established by a prefecture to that
effect.
(2) The provisions of Article 6 (2) and (3) and Articles 7 and 8 of the Act on the
Prevention, etc. of Child Abuse (Act No. 82 of 2000) shall apply to the
notification under the provision of the preceding paragraph by deeming it to be
given pursuant to the provision of Article 6 (1) of said Act.
Subsection 2 Assistance in Child's Return to Japan
(Application for Assistance in Child's Return to Japan)
Article 11 (1) With respect to a child who has been subject to a removal to or a
retention in a Contracting State other than Japan and whose state of habitual
residence is Japan, a person who has the rights of custody of said child under
the laws and regulations of Japan, if he/she considers that said rights of
custody are breached due to said removal or retention, may file an application
to the Minister for Foreign Affairs for assistance in realizing the return of child
to Japan (hereinafter referred to as "assistance in child's return to Japan").
(2) The provisions of Article 4 (2) and (3) shall apply mutatis mutandis to the
application for assistance in child's return to Japan (hereinafter referred to as
an "application for assistance in child's return to Japan"). In this case, the
term "Article 7 (1) (iv)" in item (i) of paragraph (2) of said Article shall be
deemed to be replaced with "Article 13 (1) (iv)" and the term "Contracting
State" in item (iv) of said paragraph and the term "the state of habitual
residence of the child pertaining to the application" in item (v) of said
paragraph shall be deemed to be replaced with "Japan".
(Decision and Notice of Assistance in Child's Return to Japan)
Article 12 (1) The Minister for Foreign Affairs, when an application for10assistance in child's return to Japan is filed, shall make a decision to provide
assistance in child's return to Japan (hereinafter referred to as "decision for
assistance in child's return to Japan") and notify the person who files an
application for assistance in child's return to Japan (hereinafter referred to as
"applicant" in this Subsection) to that effect without delay, except where the
Minister dismisses it pursuant to the provisions of paragraph (1) of the
following Article.
(2) The Minister for Foreign Affairs, when he/she makes a decision for assistance
in child's return to Japan, shall take the measures prescribed in Article 14.
(3) In addition to what is provided for in the preceding paragraph, the Minister
for Foreign Affairs, when he/she makes a decision for assistance in child's
return to Japan, shall take the following measures as necessary:
(i) Measures prescribed in Article 15;
(ii) Communication with the Central Authority(ies) of Contracting State(s)
other than Japan to implement the Convention.
(Dismissal of Application for Assistance in Child's Return to Japan)
Article 13 (1) The Minister for Foreign Affairs shall dismiss an application for
assistance in child's return to Japan if it falls under any of the following items:
(i) A child who is sought to be returned in the application for assistance in
child's return to Japan (hereinafter referred to as a "child pertaining to the
application" in this Subsection) has attained the age of 16;
(ii) The state or territory where the child pertaining to the application is
located is unknown;
(iii) It is obvious that the child pertaining to the application is located in Japan
or any state or territory other than Contracting States;
(iv) It is obvious that the location of the child pertaining to the application and
the domicile or residence (or the location of the office if the applicant is a
juridical person or other entity) of the applicant are in the same Contracting
State;
(v) It is obvious that the state of habitual residence of the child pertaining to
the application is not Japan;
(vi) At the time of the removal or the commencement of the retention of the
child pertaining to the application, the state or territory where said child is
considered to have been located was not a Contracting State;
(vii) It is obvious that the applicant does not have the rights of custody with
respect to the child pertaining to the application under the laws or
regulations of Japan, or that said rights of custody are not breached by the
removal or retention of the child pertaining to the application.
(2) The Minister for Foreign Affairs, when he/she dismisses an application for
assistance in child's return to Japan pursuant to the provisions of the11preceding paragraph, shall immediately give a notice to the applicant to that
effect and of the reason thereof.
(Sending of Copy of Document pertaining to Application for Assistance in
Child's Return to Japan to Central Authority of Contracting State)
Article 14 (1) The Minister for Foreign Affairs, where he/she makes a decision
for assistance in child's return to Japan, shall send without delay, a copy of the
application form set forth in Article 4 (2) and the documents prescribed in
paragraph (3) of said Article as applied mutatis mutandis pursuant to Article
11 (2) to the Central Authority of the Contracting State where the child
pertaining to the application is located.
(2) The Minister for Foreign Affairs, when he/she sends the documents pursuant
to the provision of the preceding paragraph, shall give a notice to the applicant
to that effect.
(Provision of Information relating to Social Background of Child to Central
Authority of Contracting State)
Article 15 (1) Where the case relating to the return of child to Japan is pending
before the court or any other organ that conducts an adjudication of a
Contracting State other than Japan (hereinafter referred to as "foreign court,
etc." in this paragraph and the following paragraph) and the Minister for
Foreign Affairs is sought by the Central Authority of said Contracting State to
provide the information on living or surrounding conditions, such as physical,
psychological, nurturing and school conditions, of the child pertaining to said
return of child, and if it falls under all of the following items, the Minister may
request, as provided for by Cabinet Order, the heads of administrative organs
of the State, etc., the heads of local public entities or other executive agencies ,
or any other persons designated by Cabinet Order as those having the
information with regard to the child pertaining to the application, to provide
the information in their possession, in order to provide the Central Authority
of said Contracting State with the information:
(i) Where said Central Authority requests the Minister for Foreign Affairs to
provide said information upon request of said foreign court, etc. in order to
conduct an examination on said case, and it is found that there is no risk of
using said information for any other purpose than said examination;
(ii) Where the parties to the proceedings at the foreign court, etc. pertaining to
said case (if said child is the party to said proceedings, excluding the child)
have consented to the provision of said information to said Central Authority.
(2) In the case referred to in the preceding paragraph, those who are requested to
provide the information prescribed in said paragraph, when it falls under all of
the following items, shall provide the Minister for Foreign Affairs with said12information without delay:
(i) Where it is found that there is no risk that the provision of said information
to the Central Authority prescribed in the preceding paragraph will cause
unjust harm to the rights and interests of the child prescribed in said
paragraph or of the parties to the proceedings at the foreign court, etc.
pertaining to the case prescribed in said paragraph;
(ii) Where said information is in a situation where it can be made available to
the child prescribed in the preceding paragraph and the parties to the
proceedings at the foreign court, etc. pertaining to the case prescribed in said
paragraph, and it does not include any information that can identify a
specific individual other than them.
(3) The Minister for Foreign Affairs may provide the information provided
pursuant to the provisions of the preceding paragraph only to the Central
Authority prescribed in paragraph (1).
Section 3 Assistance in Visitation or Other Contacts with Child
Subsection 1 Assistance in Visitation or Contacts with Child in Japan
(Application for Assistance in Visitation or Contacts with Child in Japan)
Article 16 (1) With respect to a child who is located in Japan and who held
his/her habitual residence in a state or territory that is a Contracting State
immediately before the visitation or other contacts with him/her became unable
to be made, a person who is entitled to such visitation or other contacts with
said child under the laws and regulations of said state or territory (limited to
those who have a domicile or residence in a Contracting State other than
Japan), when he/she considers that the visitation or other contacts with the
child is interfered, may file an application to the Minister for Foreign Affairs
for assistance in realizing the visitation or other contacts with the child
(hereinafter referred to as "assistance in visitation or contact with child in
Japan").
(2) A person who intends to file an application for assistance in visitation or
contact with child in Japan (hereinafter referred to as "application for
assistance in visitation or contact with child in Japan") shall submit an
application form describing the following matters (limited to those written in
Japanese or English) to the Minister for Foreign Affairs, as provided for by
Ordinance of the Ministry of Foreign Affairs:
(i) Name and domicile or residence of a person who intends to file an
application for assistance in visitation or contact with child in Japan
(hereinafter referred to as an "applicant" in this Subsection) ;
(ii) Name, birth date, and domicile or residence (if these matters are not
identified, a statement to that effect) of a child with whom the visitation or13other contacts is sought in the application for assistance in visitation or
contact with child in Japan (hereinafter referred to as a "child pertaining to
the application" in this Subsection) and any other necessary matters to
identify the child pertaining to the application;
(iii) Name of a person who is considered to be interfering with the visitation or
contact with the child pertaining to the application and any other necessary
matters to identify said person;
(iv) Necessary matters to clarify that the state or the territory where the child
pertaining to the application held his/her habitual residence immediately
before the visitation or other contacts with him/her by the applicant became
unable to be made is a Contracting State;
(v) Necessary matters to clarify that the applicant is entitled to visitation or
other contacts with the child pertaining to the application under the laws
and regulations of the state or territory where the child pertaining to the
application held his/her habitual residence immediately before the visitation
or other contacts with him/her by the applicant became unable to be made
and that the visitation or other contacts with the child by the applicant has
been interfered;
(vi) Name and domicile or residence of a person who is considered to live
together with the child pertaining to the application and any other matters
necessary to identify said person (if these matters are not identified, a
statement to that effect).
(3) Documents proving the matters listed in item (v) of the preceding paragraph
and any other documents as specified by Ordinance of the Ministry of Foreign
Affairs shall be attached to the application form set forth in said paragraph.
(4) An application for assistance in visitation or contact with child in Japan may
be filed via the Central Authority of a Contracting State other than Japan. In
this case, the applicant shall submit to the Minister for Foreign Affairs the
document describing the matters listed in each item of paragraph (2) (limited
to those written in Japanese or English or those to which a Japanese or
English translation is attached) and the documents prescribed in the preceding
paragraph.
(Decision and Notice of Assistance in Visitation or Contact with Child in
Japan)
Article 17 (1) The Minister for Foreign Affairs, when an application for
assistance in visitation or contact with child in Japan is filed, shall make a
decision to provide assistance in visitation and contact with child in Japan
(hereinafter referred to as "decision for assistance in visitation or contact with
child in Japan") , and shall give a notice (in the case where the applicant files
an application for assistance in visitation or contact with child in Japan via the14Central Authority of a Contracting State other than Japan pursuant to the
provision of paragraph (4) of the preceding Article, a notice via said Central
Authority; the same shall apply in paragraph (2) of the following Article and
Article 19 (2).) to the applicant to that effect without delay, except where the
Minister dismisses it pursuant to the provision of paragraph (1) of the
following Article and where he/she sends a copy of the documents with regard
to the application for assistance in visitation or contact with child in Japan
pursuant to the provisions of Article 19 (1),.
(2) The Minister for Foreign Affairs, when he/she makes a decision for assistance
in visitation or contact with child in Japan, shall take the following measures
as necessary:
(i) Measures prescribed in Article 9 or Article 10 as applied mutatis mutandis
pursuant to Article 20;
(ii) Communication with the Central Authority(ies) of Contracting State(s)
other than Japan to implement the Convention;
(iii) Provision to the applicant of the information relating to the procedures
provided for in this Act and other systems under the laws and regulations of
Japan relating to the realization of, the visitation or other contacts with the
child.
(Dismissal of Application for Assistance in Visitation or Contact with Child in
Japan)
Article 18 (1) The Minister for Foreign Affairs shall dismiss an application for
assistance in visitation or contact with child in Japan if it falls under any of
the following items:
(i) The child pertaining to the application has attained the age of 16;
(ii) It is obvious that the child pertaining to the application is not in Japan and
the state or territory where the child pertaining to the application is located
is unknown;
(iii) It is obvious that the child pertaining to the application is located in a
state or territory other than Contracting States;
(iv) It is obvious that the location of the child pertaining to the application and
the domicile or residence of the applicant are in the same Contracting State;
(v) It is obvious that the applicant has a domicile or residence in Japan or that
the applicant does not have a domicile or residence in a Contracting State
other than Japan;
(vi) The state or territory where the child pertaining to the application held
his/her habitual residence immediately before the visitation or other contacts
with him/her by the applicant became unable to be made is not a Contracting
State;
(vii) It is obvious that the applicant is not entitled to visitation or any other15contacts with the child pertaining to the application under the laws or
regulations of the state or territory where the child pertaining to the
application held his/her habitual residence immediately before the visitation
or other contacts with him/her by the applicant became unable to be made or
that the visitation or other contacts by the applicant with the child
pertaining to the application is not interfered.
(2) The Minister for Foreign Affairs, when he/she dismisses an application for
assistance in visitation or contact with child in Japan pursuant to the
provisions of the preceding paragraph, shall immediately notify the applicant
to that effect and of the reason thereof.
(Sending of Copy of Document pertaining to Application for Assistance in
Visitation or Contact with Child in Japan to Central Authority of
Contracting State)
Article 19 (1) The Minister for Foreign Affairs, where it is obvious that the child
pertaining to the application is located in a Contracting State other than Japan
and if the application for assistance in visitation or contact with child in Japan
does not fall under item (iv) of paragraph (1) of the preceding Article, shall
send without delay a copy of the application form set forth in Article 16 (2) (or
if the applicant files an application for assistance in visitation or contact with
child in Japan pursuant to the provision of paragraph (4) of said Article, the
documents prescribed in said paragraph) and the documents prescribed in
paragraph (3) of said Article to the Central Authority of said Contracting State.
(2) The Minister for Foreign Affairs, when he/she sends the documents pursuant
to the provision of the preceding paragraph, shall give a notice to the applicant
to that effect.
(Provisions Applied Mutatis Mutandis concerning Assistance in Visitation or
Contact with Child in Japan)
Article 20 The provisions of Articles 5, 9, and 10 shall apply mutatis mutandis
where an application for assistance in visitation or contact with child in Japan
is filed to the Minister for Foreign Affairs. In this case, the term "filing a
petition for the return of child under the provisions of Article 26, or filing a
petition for an adjudication of domestic relations or a conciliation of domestic
relations seeking to provide for the visitation or other contacts with the child
or to change such provision" in Article 5 (4) (i) shall be deemed to be replaced
with "filing a petition for an adjudication of domestic relations or a
conciliations of domestic relations seeking to provide for the visitation or other
contacts with the child or to change such provision," the term "the court before
which the case relating to the return of child as prescribed in Article 29 or the
case pertaining to the compulsory execution of the return of child is pending or16by the court before which the case relating to the visitation or other contacts
with the child pertaining to the application or" in Article 5(4)(ii) shall be
deemed to be replaced with "by the court before which the case relating to the
visitation or any other contacts with the child pertaining to the application or,",
the term " the return of child or visitation or other contacts" in Article 9 shall
be deemed to be replaced with "visitation or other contacts."
Subsection 2 Assistance in Visitation or Contact with Child in Foreign
State
(Application for Assistance in Visitation or Contact with Child in Foreign
State)
Article 21 (1) With respect to a child who is located in a Contracting State other
than Japan and who held his/her habitual residence in a state or territory that
is a Contracting State immediately before visitation or other contacts with
him/her became unable to be made, a person who is entitled to such visitation
or other contacts with the child under the laws and regulations of said state or
territory (limited to those who have a domicile or residence in Japan), when
he/she considers that the visitation or other contacts with said child is
interfered, may file an application to the Minister for Foreign Affairs for
assistance in realizing the visitation or other contacts with said child
(hereinafter referred to as "assistance in visitation or contact with child in
foreign state") .
(2) The provisions of Article 16 (2) and (3) shall apply mutatis mutandis to the
application for assistance in visitation or contact with child in foreign state
(hereinafter referred to as "application for assistance in visitation or contact
with child in foreign state").
(Decision and Notice of Assistance in Visitation or Contact with Child in
Foreign State)
Article 22 (1) The Minister for Foreign Affairs, when an application for
assistance in visitation or contact with child in foreign state is filed, shall
make a decision to provide assistance in visitation or other contacts with child
in foreign state (hereinafter referred to as "decision for assistance in visitation
or contact with child in foreign state") , and shall notify the person who files an
application for assistance in visitation or contact with child in foreign state
(hereinafter referred to as an "applicant" in this Subsection) to that effect
without delay, except where he/she dismisses it pursuant to the provisions of
paragraph (1) of the following Article,.
(2) The Minister for Foreign Affairs, when he/she makes a decision for assistance
in visitation or contact with child in foreign state, shall take the measures17prescribed in Article 24.
(3) In addition to what is provided for in the preceding paragraph, the Minister
for Foreign Affairs, when he/she makes a decision for assistance in visitation or
contact with child in foreign state, shall take the following measures as
necessary:
(i) Measures prescribed in Article 15 as applied mutatis mutandis pursuant to
Article 25;
(ii) Communication with the Central Authority(ies) of Contracting State(s)
other than Japan to implement the Convention;
(Dismissal of Application for Assistance in Visitation or Contact with Child in
Foreign State)
Article 23 (1) The Minister for Foreign Affairs shall dismiss an application for
assistance in visitation or contact with child in foreign state if it falls under
any of the following items:
(i) A child with whom the visitation or other contacts is sought in the
application for assistance in visitation or contact with child in foreign state
(hereinafter referred to as "the child pertaining to the application" in this
Subsection) has attained the age of 16;
(ii) The state or territory where the child pertaining to the application is
located is unknown;
(iii) It is obvious that the child pertaining to the application is located in Japan
or in a state or territory other than Contracting States;
(iv) It is obvious that the location of the child pertaining to the application and
the domicile or residence of the applicant are in the same Contracting State;
(v) It is obvious that the applicant does not have a domicile or residence in
Japan;
(vi) The state or territory where the child pertaining to the application held
his/her habitual residence immediately before the visitation or other contacts
with the child by the applicant became unable to be made is not a
Contracting State;
(vii) It is obvious that the applicant is not entitled to visitation or other
contacts with the child pertaining to the application under the laws or
regulations of the state or territory where the child pertaining to the
application held his/her habitual residence immediately before the visitation
or other contacts with him/her by the applicant became unable to be made or
that the visitation or other contacts by the applicant with the child
pertaining to the application is not interfered.
(2) The Minister for Foreign Affairs, when he/she dismisses an application for
assistance in visitation or contact with child in foreign state pursuant to the
provisions of the preceding paragraph, shall immediately notify the applicant18to that effect and of the reason thereof.
(Sending of Copy of Document pertaining to Application for Assistance in
Visitation or Contact with Child in Foreign State to Central Authority of
Contracting State)
Article 24 (1) The Minister for Foreign Affairs, where he/she makes a decision
for assistance in visitation or contact with child in foreign state, shall send
without delay a copy of the application form set forth in Article 16 (2) and the
documents prescribed in paragraph (3) of said Article as applied mutatis
mutandis pursuant to Article 21 (2) to the Central Authority of said
Contracting State where the child pertaining to the application is located.
(2) The Minister for Foreign Affairs, when he/she sends the documents pursuant
to the provisions of the preceding paragraph, shall give a notice to the
applicant to that effect.
(Provisions Applied Mutatis Mutandis concerning Assistance in Visitation or
Contact with Child in Foreign State)
Article 25 The provisions of Articles 15 shall apply mutatis mutandis where an
application for assistance in visitation or contact with child in foreign state is
filed to the Minister for Foreign Affairs. In this case, the term "the return of
child to Japan" in paragraph (1) of said Article shall be deemed to be replaced
with "the visitation or other contacts with the child pertaining to the
application" and the term "the child pertaining to said return of child" in said
paragraph shall be deemed to be replaced with "the child pertaining to the
application."
Chapter III Procedures for Case relating to Return of Child, etc.
Section 1 Grounds for Return, etc.
(Return of Child based on Convention)
Article 26 A person whose rights of custody with respect to a child are breached
due to removal to or retention in Japan may file a petition against the person
who takes care of the child with a family court to seek an order to return the
child to the state of habitual residence pursuant to the provisions of this Act.
(Grounds for Return of Child)
Article 27 The court, when it finds that the petition for the return of child falls
under all of the grounds listed in the following items, shall order the return of
child:
(i) The child has not attained the age of 16;
(ii) The child is located in Japan;19(iii) Pursuant to the laws or regulations of the state of habitual residence, said
removal or retention breaches the rights of custody with respect to the child
attributed to the petitioner;
(iv) At the time of said removal or the commencement of said retention, the
state of habitual residence was a Contracting State.
(Grounds for Refusal of Return of Child, etc.)
Article 28 (1) Notwithstanding the provisions of the preceding Article, the court
shall not order the return of child when it finds that any of the grounds listed
in the following items exists; provided, however, that even in cases where there
exist grounds prescribed in items (i) to (iii) or item (v), the court may order the
return of child if it finds that it serves the interests of the child to have
him/her returned to his/her state of habitual residence after taking into
account all the circumstances:
(i) The petition for the return of child was filed after the expiration of the
period of one year since the time of the removal or the commencement of the
retention of the child, and the child is now settled in his/her new
environment;
(ii) The petitioner was not actually exercising the rights of custody at the time
of the removal or the commencement of the retention of the child (except in
the case where it could be deemed that the rights of custody would have
actually been exercised by the petitioner but for said removal or retention);
(iii) The petitioner had given prior consent or subsequently approved the
removal or retention of the child;
(iv) There exists a grave risk that his/her 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;
(v) The child objects to being returned, in a case where it is appropriate to take
account of the child's views in light of his/her age and degree of development;
(vi) It would not be permitted by the fundamental principles of Japan relating
to the protection of human rights and fundamental freedoms to return the
child to the state of habitual residence.
(2) The court, when judging whether or not the grounds listed in item (iv) of the
preceding paragraph exist, shall consider all circumstances such as those listed
below:
(i) Whether or not there is a risk that the child would be subject to the words
and deeds, such as physical violence, 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20harm to the child, if the respondent and the child entered into the state of
habitual residence;
(iii) Whether or not there are circumstances that make it difficult for the
petitioner or the respondent to provide care for the child in the state of
habitual residence.
(3) The court shall not dismiss the petition for the return of child only on the
grounds that a judicial decision relating to the custody of the child has been
issued in Japan or that there is a possibility that a judicial decision relating to
the custody of the child issued in a foreign state becomes effective in Japan;
provided, however, that the court is not precluded from taking into account the
reasons for the aforementioned judicial decision relating to custody of the child
in its judicial decision on the petition for the return of child.
Section 2 General Rules for Procedures for Case relating to Return of
Child
(Procedures for Case relating to Return of Child)
Article 29 Procedures for the case relating to the return of child (which means
the case seeking the return of child as prescribed in Article 32 (1), the case on
the examination and recommendation as prescribed in Article 121 and the case
on the ne exeat order as prescribed in Article 123 (2); the same shall apply
hereinafter.) shall be governed by the provisions of this Act, in addition to
what is provided for in other laws and regulations.
(Responsibilities of Courts and Parties)
Article 30 Courts shall endeavor to ensure that the proceedings of the case
relating to the return of child are carried out fairly and expeditiously, and the
parties shall carry out the proceedings of the case in good faith.
(Rules of the Supreme Court)
Article 31 In addition to what is provided for in this Act, the necessary matters
concerning procedures for the case relating to the return of child shall be
prescribed by the Rules of the Supreme Court.
Section 3 Procedures for Case Seeking Return of Child
Subsection 1 General Provisions
Division 1 Jurisdiction
(Jurisdiction)
Article 32 (1) In the cases listed in the following items, the case seeking the
return of child (which means the case pertaining to the petition for the return21of child under the provision of Article 26; the same shall apply hereinafter.)
shall be subject to the jurisdiction of the respective family courts specified in
each of said items:
(i) In cases where the place of domicile of the child (when the child has no
domicile in Japan or his/her domicile is unknown, his/her residence; the
same shall apply in the following item) is located within the jurisdictional
district of the Tokyo High Court, the Nagoya High Court, the Sendai High
Court, or the Sapporo High Court: The Tokyo Family Court;
(ii) In cases where the place of domicile of the child is located within the
jurisdictional district of the Osaka High Court, the Hiroshima High Court,
the Fukuoka High Court, or the Takamatsu High Court: The Osaka Family
Court.
(2) A case seeking the return of child shall be subject to the jurisdiction of the
Tokyo Family Court where the child has no domicile in Japan or his/her
domicile is unknown, and when he/she has no residence in Japan or his/her
residence is unknown.
(Jurisdiction over Joint Claim)
Article 33 Where the return of child with regard to two or more children is to be
sought by a single petition, such petition may be filed with the family court
which shall have jurisdiction over a petition for the return of child with regard
to one of the children pursuant to the provisions of the preceding Article.
(Designation of Court with Jurisdiction)
Article 34 Where the court with jurisdiction is unable to exercise its jurisdiction
by law or in fact or if a court with jurisdiction is not determined due to ill-
defined jurisdictional districts of courts, the Supreme Court, upon petition,
shall designate a court with jurisdiction.
(Base Time for Determining Jurisdiction)
Article 35 The jurisdiction of a court shall be determined on the basis of the time
of the filing of a petition for the return of child.
(Agreement on Jurisdiction)
Article 36 (1) The parties may determine one of the family courts specified in
each item of Article 32 (1) as a court with jurisdiction by an agreement only in
the first instance.
(2) The agreement set forth in the preceding paragraph shall not become effective
unless it is made with respect to a petition for the return of child and is made
in writing.
(3) If the agreement set forth in paragraph (1) is made by means of an22electromagnetic record (which means a record made in an electronic form, a
magnetic form, or any other form not recognizable to human perception, which
is used in information processing by computers), the provision of the preceding
paragraph shall be applied by deeming such agreement to have been made in
writing.
(Transfer, etc.)
Article 37 (1) The court, when it finds that the case seeking the return of child is
not subject to its jurisdiction, upon petition or by its own authority, shall
transfer the case to the family court that has the jurisdiction.
(2) A family court, in the case prescribed in the preceding paragraph and when it
finds it particularly necessary for handling a case seeking the return of child,
by its own authority, may transfer the whole or part of said case to a family
court other than the family court which has jurisdiction over the case (limited
to the family courts specified in each item of Article 32 (1)).
(3) Any of the family courts specified in each item of Article 32 (1), in the case
prescribed in paragraph (1) and when it finds it particularly necessary for
handling a case seeking the return of child, by its own authority, may handle
the whole or part of said case by itself.
(4) A family court, even where a case seeking the return of child is subject to its
jurisdiction and when it finds it particularly necessary for handling said case ,
by its own authority, may transfer the whole or part of said case to another
family court (limited to the family courts specified in each item of Article 32
(1)).
(5) An immediate appeal may be filed against a judicial decision on a transfer
under the provisions of paragraphs (1) and (2) and the preceding paragraph
and a judicial decision to dismiss without prejudice the petition set forth in
paragraph (1).
(6) An immediate appeal against a judicial decision on a transfer under the
provision of the preceding paragraph shall have the effect of stay of execution.
(7) The provision of Article 22 of the Code of Civil Procedure (Act No. 109 of
1996) shall apply mutatis mutandis to the judicial decision on a transfer of the
case seeking the return of child.
Division 2 Disqualification of and Challenge to Court Officials
(Disqualification of Judge)
Article 38 (1) A judge shall, in the following cases, be disqualified from
performing his/her duties; provided, however, that in the case listed in item
(vi), this shall not preclude a judge from performing his/her duties as a
commissioned judge based on the commission from another court:23(i) Where a judge or his/her spouse or person who was his/her spouse is a party
to the case, or a person who has the status to become a party to the case;
(ii) Where a judge is or was a party's relative by blood within the fourth degree,
or relative through marriage within the third degree or relative living
together;
(iii) Where a judge is, in relation to a party or the child, a guardian, supervisor
of a guardian, curator, supervisor of a curator, assistant, or a supervisor of
an assistant;
(iv) Where a judge has served as a witness or expert witness in the case, or is
requested to attend the hearing for the case;
(v) Where a judge is or was a party's or the child's agent or assistant in court in
the case;
(vi) Where a judge has participated in making an arbitral award in the case or
participated in making a judicial decision in the prior instance against which
an appeal is entered.
(2) If any of the grounds for disqualification prescribed in the preceding
paragraph exist, the court, upon petition or by its own authority, shall make a
judicial decision of disqualification.
(Challenge to Judge)
Article 39 (1) If there are circumstances with regard to a judge that would
prejudice the impartiality of a judicial decision, a party may challenge such
judge.
(2) A party, if he/she, in the presence of a judge, has made statements on the case,
may not challenge the judge; provided, however, that this shall not apply
where the party did not know of the existence of any grounds for challenge or
where any grounds for challenge occurred thereafter.
(Judicial Decision of Disqualification or Challenge, and Stay of Proceedings)
Article 40 (1) A judicial decision of the disqualification of or a challenge to a
judge who is a member of a panel or a single judge of a family court shall be
made by the court to which the judge belongs.
(2) The judicial decision set forth in the preceding paragraph shall be made by a
panel.
(3) A judge may not participate in making a judicial decision on the
disqualification of or a challenge to him/herself.
(4) When a petition for disqualification or challenge is filed, the proceedings of
the case seeking the return of child shall be stayed until a judicial decision on
the petition becomes final and binding; provided, however, that this shall not
apply to any urgent act.
(5) When a judicial decision to dismiss without prejudice the petition for24challenge is made for the reason that any of the grounds listed in the following
items exists, the provision of paragraph (3) shall not apply:
(i) When it is obvious that the petition has been made only for the purpose of
delaying the proceedings of the case seeking the return of child;
(ii) When it is in violation of the provision of paragraph (2) of the preceding
Article;
(iii) When it is in violation of the procedures provided for by the Rules of the
Supreme Court.
(6) Notwithstanding the provisions of paragraphs (1) and (2), a judicial decision
set forth in the preceding paragraph may be made by an authorized judge, etc.
(which means an authorized judge, a commissioned judge, or a judge of the
family court handling the case seeking the return of child; the same shall apply
in the proviso of paragraph (3) of the following Article) who is subject to a
challenge.
(7) When a judicial decision set forth in paragraph (5) is made, notwithstanding
the provision of the main clause of paragraph (4), the proceedings of the case
seeking the return of child shall not be stayed.
(8) No appeal may be entered against a judicial decision that the disqualification
or challenge is well-grounded.
(9) An immediate appeal may be filed against a judicial decision to dismiss
without prejudice the petition for the disqualification or challenge.
(Disqualification of and Challenge to Court Clerk)
Article 41 (1) The provisions of Article 38, Article 39, and paragraphs (3), (5), (8),
and (9) of the preceding Article shall apply mutatis mutandis to the
disqualification of and challenge to the court clerks.
(2) When a petition is filed for the disqualification of or a challenge to a court
clerk, the court clerk may not participate in the case seeking the return of
child for which said petition is filed until a judicial decision on such petition
becomes final and binding; provided, however, that this shall not apply to the
case where a judicial decision to dismiss without prejudice the petition for a
challenge to the court clerk is made for the reason that any of the grounds
listed in each item of paragraph (5) of the preceding Article as applied mutatis
mutandis pursuant to the preceding paragraph exists.
(3) A judicial decision of the disqualification of or a challenge to the court clerk
shall be made by the court to which a court clerk in question belongs; provided,
however, that a judicial decision set forth in the proviso of the preceding
paragraph may be made by an authorized judge, etc. (with respect to an
authorized judge or a commissioned judge, limited to the case where a petition
is filed for a challenge to the court clerk who attends the proceedings of said
judge).25(Disqualification of Family Court Probation officer)
Article 42 (1) The provisions of Article 38 and Article 40 (2), (8), and (9)
(excluding the part relating to challenge) shall apply mutatis mutandis with
respect to the disqualification of a family court probation officer.
(2) When a petition is filed for the disqualification of a family court probation
officer, the family court probation officer may not participate in the case
seeking the return of child for which said petition is filed until a judicial
decision on such petition becomes final and binding.
(3) A judicial decision of the disqualification of a family court probation officer
shall be made by the court to which the family court probation officer in
question belongs.
Division 3 Capacity to Be a Party and Capacity to Perform
Procedural Acts
(Principle of Capacity to Be a Party and Capacity to Perform Procedural Acts,
etc.)
Article 43 (1) The provisions of Articles 28, 29, 33, 34 (1) and (2), and Article 36
(1) of the Code of Civil Procedure shall apply mutatis mutandis to the capacity
to be a party, the capacity to perform procedural acts in the proceedings of the
case seeking the return of child (hereinafter referred to as "procedural acts"),
the statutory representation for a person without the capacity to perform
procedural acts, the delegation of powers necessary for performing procedural
acts, and the extinction of authority of statutory representation.
(2) A minor or an adult ward may perform procedural acts by him/herself without
being required to obtain the consent of a statutory agent or without a statutory
agent. The same shall apply where a person under curatorship or a person
under assistance does not have the consent of the curator or supervisor of the
curator, or assistant or supervisor of the assistant.
(3) In order for a guardian to perform procedural acts with regard to a petition or
an appeal on the return of child filed by other persons, he/she is not required to
obtain the consent of the supervisor of the guardian.
(4) In order for a guardian to perform any of the following procedural acts, he/she
shall be required to obtain the consent of the supervisor of the guardian:
(i) Withdrawing a petition for the return of child or entering into a settlement;
(ii) Withdrawing an immediate appeal against a final order, an appeal set forth
in Article 108 (1) or a petition set forth in Article 111 (2);
(iii) Giving consent set forth in Article 144.
(Statutory Agent of Minor or Adult Ward)26Article 44 A person who exercises parental authority or a guardian may perform
procedural acts on behalf of a minor or an adult ward.
(Special Agent)
Article 45 (1) Where there is no statutory agent or where a statutory agent is
unable to exercise the authority of representation with respect to a minor or an
adult ward, and when damage is likely to be incurred due to a delay in the
proceedings of the case seeking the return of child, the presiding judge, upon
petition of an interested person or by his/her own authority, may appoint a
special agent.
(2) A judicial decision on the appointment of a special agent shall be made based
on a prima facie showing.
(3) The court may replace a special agent at any time.
(4) In order for a special agent to perform procedural acts, he/she shall be
required to obtain the same delegation of powers as a guardian.
(5) An immediate appeal may be filed against a judicial decision to dismiss
without prejudice the petition set forth in paragraph (1).
(Application Mutatis Mutandis to Representative of Juridical Person, etc.)
Article 46 The provisions concerning statutory representation and a statutory
agent in this Act shall apply mutatis mutandis to a representative of a
juridical person and to a representative or administrator of an association or
foundation that is not a juridical person but has the capacity to be a party.
Division 4 Intervention
(Intervention as Party)
Article 47 (1) A person who has the status to become a party may intervene as a
party in the proceedings of the case seeking the return of child.
(2) The court, when it finds it appropriate, upon petition of a party or by its own
authority, may allow other persons who have the status to become a party to
intervene as a party in the proceedings of the case seeking the return of child.
(3) An application for intervention under the provision of paragraph (1) and a
petition set forth in the preceding paragraph shall be made by means of a
document describing the purpose of and reasons for intervention.
(4) An immediate appeal may be filed against a judicial decision to dismiss
without prejudice the application for intervention under the provision of
paragraph (1).
(Intervention of Child)
Article 48 (1) A child who is sought to be returned in the case seeking the return27of child may intervene in the proceedings of the case seeking the return of child.
(2) The court, when it finds it appropriate, by its own authority, may allow a
child who is sought to be returned to intervene in the proceedings of the case
seeking the return of child.
(3) An application for intervention under the provision of paragraph (1) shall be
made by means of a document.
(4) The court, when it finds that it would harm the interests of the child who
intends to intervene in the proceedings of the case seeking the return of child
for said child to intervene in said proceedings while taking into account the age
and degree of development of the child and all other circumstances, shall
dismiss the application for intervention under the provision of paragraph (1)
without prejudice.
(5) An immediate appeal may be filed against a judicial decision to dismiss
without prejudice the application for intervention under the provision of
paragraph (1).
(6) The child who intervenes in the proceedings of the case seeking the return of
child pursuant to the provisions of paragraphs (1) and (2) (hereinafter simply
referred to as an "intervening child") may perform such procedural acts that a
party to the case is able to perform (excluding the withdrawal and change of
the petition for the return of child, and the withdrawal of an appeal against a
judicial decision and of an objection to disposition made by a court clerk);
provided, however, that, with respect to an appeal against a judicial decision
and an objection to disposition made by a court clerk, this shall apply only
where the intervening child is able to perform such procedural acts pursuant to
other provisions of this Act concerning an appeal and objection.
(Exclusion from Proceedings)
Article 49 (1) The court may exclude a person who has no status to become a
party or has lost such status from the proceedings of the case seeking the
return of child.
(2) An immediate appeal may be filed against a judicial decision on the exclusion
under the provision of paragraph (1).
Division 5 Counsel and Assistant in Court
(Qualification of Counsel)
Article 50 (1) Except for an agent who may perform judicial acts under the laws
and regulations, no person other than an attorney at law may serve as a
counsel; provided, however, that in a family court, with its permission, a
person who is not an attorney at law may be appointed as a counsel.
(2) The permission set forth in the proviso of the preceding paragraph may be28rescinded at any time.
(Appointment of Counsel by Presiding Judge, etc.)
Article 51 (1) Where a minor, an adult ward, a person under curatorship, or a
person under assistance (hereinafter referred to as "minor, etc." in this Article)
intends to perform procedural acts, and when the presiding judge finds it
necessary, he/she may, upon petition, appoint an attorney at law as a counsel.
(2) Even where a minor, etc. does not file a petition set forth in the preceding
paragraph, the presiding judge may order that an attorney at law be appointed
as a counsel, or may, by his/her own authority, appoint an attorney at law as a
counsel.
(3) The amount of remuneration to be paid by a minor, etc. to the attorney at law
appointed as a counsel by the presiding judge pursuant to the provision of the
preceding two paragraphs shall be the amount that the court finds reasonable.
(Scope of Authority of Representation of Counsel)
Article 52 (1) A counsel, with regard to a case entrusted thereto, may perform
acts concerning an intervention and compulsory execution, and may receive
payment.
(2) A counsel shall be specially entrusted in order to perform the following:
(i) Withdrawing the petition for the return of child or entering into a
settlement;
(ii) Filing an immediate appeal against a final order, an appeal set forth in
Article 108 (1) or a petition set forth in Article 111 (2), or withdrawing such
appeal or petition;
(iii) Filing a petition for the ne exeat order as prescribed in Article 122 (3) or
withdrawing such petition;
(iv) Giving consent set forth in Article 144;
(v) Appointing an agent.
(3) The authority of representation of a counsel may not be restricted; provided,
however, that this shall not apply to a counsel who is not an attorney at law.
(4) The provisions of the preceding three paragraphs shall not preclude the
powers of an agent who may perform judicial acts pursuant to laws and
regulations.
(Application Mutatis Mutandis of Code of Civil Procedure concerning Counsel
and His/her Authority of Representation)
Article 53 The provisions of Article 34 (excluding paragraph (3)), Article 36 (1)
and Articles 56 to 58 (excluding Article 58 (3)) of the Code of Civil Procedure
shall apply mutatis mutandis to a counsel and his/her authority of
representation.29(Assistant in Court)
Article 54 The provisions of Article 60 of the Code of Civil Procedure shall apply
mutatis mutandis to an assistant in court in the proceedings of the case
seeking the return of child.
Division 6 Procedural Costs
(Burden of Procedural Costs)
Article 55 (1) With regard to procedural costs for the procedures for the case
seeking the return of child (hereinafter referred to as "procedural costs"), the
parties shall bear their own costs.
(2) With respect to the procedural costs that should be borne by a party and an
intervening child, respectively, pursuant to the provision of the preceding
paragraph, the court, depending on the circumstances, may have any other
party to the case bear all or part of said procedural costs.
(Judicial Decision on Burden of Procedural Costs, etc.)
Article 56 (1) The court, when making a judicial decision to conclude a case, by
its own authority, shall make a judicial decision on the burden of all procedural
costs incurred in the instance thereof (including the costs for the procedures
relating to the conciliation of domestic relations where the court has referred
the case to the conciliation of domestic relations pursuant to the provision of
Article 144); provided, however, that depending on the circumstances, the court,
when making a judicial decision on part of a case or on an interlocutory dispute,
may make a judicial decision on the burden of costs thereof.
(2) Where an upper instance court modifies a judicial decision on merits, it shall
make a judicial decision on the burden of the total costs of the proceedings
(including the costs for the procedures relating to the conciliation of domestic
relations where the court has referred the case to the conciliation of domestic
relations pursuant to the provision of Article 144). The same shall apply where
a court that has accepted a case remanded or transferred thereto makes a
judicial decision to conclude the case.
(3) Where the court has referred the case to the conciliation of domestic relations
pursuant to the provision of Article 144, and if the conciliation has been settled
without any special provision on the burden of the procedural costs for the case
seeking the return of child, the parties shall bear their own costs.
(Lending of Procedural Costs)
Article 57 Costs required for acts necessary for the procedures for the case
seeking the return of child, such as examination of the facts, examination of30evidence, summons and notification, may be lent by the national treasury.
(Application Mutatis Mutandis of Code of Civil Procedure concerning
Procedural Costs, etc.)
Article 58 (1) The provisions of Articles 68 to 74 (excluding the part relating to
an immediate appeal against a judicial decision on an objection to disposition
made by a court clerk) of the Code of Civil Procedure shall apply mutatis
mutandis to the burden of the procedural costs. In this case, the term "an
application for assisting intervention is withdrawn or an objection to assisting
intervention" in Article 73 (1) of said Code shall be deemed to be replaced with
"an application for intervention under the provisions of Article 47 (1) or Article
48 (1) of the Act for Implementation of the Convention on the Civil Aspect of
International Child Abduction (Act No. 48 of 2013)", and the term "The
provisions of Article 61 to Article 66 and Article 71(7)" in paragraph (2) of said
Article of said Code shall be deemed to be replaced with "The provisions of
Article 71(7) as applied mutatis mutandis pursuant to Article 58 (1) of the Act
for Implementation of the Convention on the Civil Aspect of International
Child Abduction."
(2) An immediate appeal under the provision of Article 69 (3) of the Code of Civil
Procedure as applied mutatis mutandis pursuant to the preceding paragraph
and an immediate appeal against a judicial decision on an objection set forth in
Article 71 (4) (including cases where it shall apply mutatis mutandis in the
second sentence of Article 72 of said Code as applied mutatis mutandis
pursuant to the preceding paragraph), Article 73 (2) and Article 74 (2) of said
Code shall have the effect of stay of execution.
(Procedural Aid)
Article 59 (1) For a person who lacks the financial resources to pay the costs
necessary for preparing for and conducting the proceedings of a case seeking
the return of child or for a person who will suffer substantial detriment in
his/her standard of living by paying such costs, the court, upon petition, may
make a judicial decision to grant procedural aid; provided, however, that this
shall not apply where it is obvious that the person seeking such aid has
performed procedural acts, such as filing a petition for the return of child, for
an unjustifiable purpose.
(2) The provisions of Article 82 (2) and Articles 83 to 86 of the Code of Civil
Procedure (excluding Article 83 (1) (iii) of said Code) shall apply mutatis
mutandis to the procedural aid. In this case, the term "the main clause of
Article 82 (1)" in Article 84 of said Code shall be deemed to be replaced with
"the main clause of Article 59 (1) of the Act for Implementation of the
Convention on the Civil Aspects of International Child Abduction."31Division 7 Proceedings of Case Seeking Return of Child, etc.
(Closed Proceedings)
Article 60 Proceedings of the case seeking the return of child shall not be open to
the public; provided, however, that the court may permit observation by a
person whom it considers to be appropriate.
(Preparation of Record, etc.)
Article 61 A court clerk shall prepare a record of the proceedings on each date
for the proceedings of the case seeking the return of child; provided, however,
that the record of the proceedings on the date other than the date for
examination of evidence may be substituted by the summary clarifying the
proceedings where the presiding judge finds it unnecessary.
(Inspection of Record, etc.)
Article 62 (1) The parties and a third party who has made a prima facie showing
of his/her interest may, with permission of the court, make a request to a court
clerk for inspection of or copying of the record of the case seeking the return of
child, or issuance of an authenticated copy, transcript, or extract thereof
( referred to as "inspection, etc." in item (i) of paragraph (4) and Article 69 (2)),
or issuance of a certificate of matters concerning the case seeking the return of
child.
(2) The provision of the preceding paragraph shall not apply with respect to the
record of the case seeking the return of child which is prepared in the form of
audiotapes or videotapes (including objects on which certain matters are
recorded by any means equivalent thereto). In this case, a party or a third
party who has made a prima facie showing of his/her interest, with permission
of the court, may make a request to a court clerk for reproduction of these
objects.
(3) The court, when a petition for the permission under the provision of the
preceding two paragraphs is filed by a party, shall grant the permission
pertaining to said petition.
(4) With respect to the part describing or recording the place of domicile or
residence of the respondent or the child provided by the Minister for Foreign
Affairs pursuant to the provision of Article 5 (4) (limited to the part pertaining
to item (ii)) (referred to as "the part that indicates address, etc." in item (i) and
Article 149 (1)) within the record of the case seeking the return of child, the
court, notwithstanding the provision of the preceding paragraph, shall not
grant the permission pertaining to the petition set forth in said paragraph;
provided, however, that this shall not apply to either of the following items:32(i) Where the respondent has given consent to the inspection, etc. of the part
that indicates address, etc., or reproduction thereof;
(ii) Where it is necessary to carry out the compulsory execution relating to a
final order to order the return of child after said final order has become final
and binding.
(5) The court, notwithstanding the provisions of paragraph (3) and the proviso of
the preceding paragraph, may refrain from granting the permission pertaining
to the petition set forth in paragraph (3), where it is found that there is a risk
of causing harm to the interests of the child who is sought to be returned in the
case seeking the return of child, a risk of causing harm to the private life and
business of a party or a third party, or, a risk of disclosing significant secrets
regarding the private life of a party or a third party, thereby causing
considerable interference with social life of the party or third party or
substantial harm to the reputation of the parties. The same shall apply when it
is found that special circumstances exist that make it inappropriate to grant
the permission pertaining to the petition set forth in said paragraph to said
party in light of the nature of the case, the state of the proceedings, the
contents of the record, etc.
(6) When a petition for the permission under the provision of paragraph (1) or (2)
is filed by a third party who has made a prima facie showing of his/her interest,
the court, when it finds it appropriate, may grant the permission pertaining to
said petition.
(7) With respect to an authenticated copy, transcript, or extract of a written
judicial decision, or a certificate of matters concerning the case seeking the
return of child, a party to the case, notwithstanding the provision of paragraph
(1), may make a request to a court clerk for issuance thereof without
permission of the court.
(8) A request for inspection, copying, and reproduction of the record of a case
seeking the return of child may not be made if these acts would be detrimental
to the preservation of the record of the case seeking the return of child or the
performance of the court's duties.
(9) An immediate appeal may be filed against a judicial decision to dismiss
without prejudice the petition set forth in paragraph (3).
(10) Where it is found that an immediate appeal under the provision of the
preceding paragraph has been filed for the purpose of unreasonably delaying
the proceedings of the case seeking the return of child, the court of prior
instance shall dismiss the immediate appeal without prejudice.
(11) An immediate appeal may be filed against a judicial decision under the
provision of the preceding paragraph.
(Date and Period)33Article 63 (1) The date for the proceedings of the case seeking the return of child
shall be designated by the presiding judge by his/her own authority.
(2) The date for the proceedings of the case seeking the return of child, only if
unavoidable, may be designated on a Sunday or any other general holiday.
(3) A change of the date for the proceedings of the case seeking the return of
child shall be allowed only if there are obvious reasons therefor.
(4) The provisions of Articles 94 to 97 of the Code of Civil Procedure shall apply
mutatis mutandis to the date and period for the proceedings of the case seeking
the return of child.
(Consolidation of Proceedings, etc.)
Article 64 (1) The court may consolidate or separate the proceedings of the case
seeking the return of child.
(2) The court may revoke the judicial decision under the provision of the
preceding paragraph.
(3) When the court has ordered the consolidation of the proceedings of the case
seeking the return of child involving different parties, if a party has requested
examination of a witness who has already been examined before the
consolidation but whom the party had no chance to examine, such witness shall
be examined.
(Taking Over of Action by Person who is to Continue Case pursuant to Laws
and Regulations)
Article 65 (1) If a party to the case seeking the return of child is not able to
continue the case (except for a party's death), a person who has the status to
continue the proceedings of the case pursuant to laws and regulations shall
take over said proceedings.
(2) Where a person who has the status to continue the proceedings of the case
pursuant to laws and regulations files a petition for the taking over of action
under the provision of the preceding paragraph and when a judicial decision is
made to dismiss the petition without prejudice, an immediate appeal may be
filed against said judicial decision.
(3) In the case referred to in paragraph (1), the court, upon petition of any other
party or by its own authority, may have the person who has the status to
continue the case pursuant to laws and regulations take over the proceedings
of the case seeking the return of child.
(Taking Over of Action by Other Petitioner, etc.)
Article 66 (1) Where it is impossible to continue the proceedings of the case
seeking the return of child due to the petitioner's death, a person who has the
status to become a petitioner in said case may take over the case.34(2) A petition for the taking over of action under the provision of the preceding
paragraph shall be filed within one month from the date of death of the
petitioner of the case seeking the return of child.
(3) Where it is impossible to continue the proceedings of the case seeking the
return of child due to the respondent's death, the court, upon petition or by its
own authority, may have the person who takes care of the child after the
respondent's death take over said proceedings, but only within three months
from the date of the respondent's death.
(Service and Suspension of Proceedings)
Article 67 The provisions of Part I, Chapter V, Section 4 and Articles 130 to 132
(excluding Article 132 (1)) of the Code of Civil Procedure shall apply mutatis
mutandis to the service and suspension of the proceedings of the case seeking
the return of child. In this case, the term "the claim that is the subject matter
of the suit or the allegations and evidence for defense" in Article 113 of said
Code shall be deemed to be replaced with "matters for which the judicial
decision is sought."
(Objection to Disposition by Court Clerk)
Article 68 (1) With regard to an objection to a disposition made by a court clerk,
the court to which the court clerk belongs shall make a judicial decision.
(2) An immediate appeal may be filed against a judicial decision set forth in the
preceding paragraph.
Division 8 Petition, etc. by Means of Electronic Data Processing
System
Article 69 (1) The provisions of Article 132-10 (1)-(5) (excluding the part relating
to the demand for payment) of the Code of Civil Procedure shall apply mutatis
mutandis to the statements, such as petition, in the proceedings of the case
seeking the return of child (referred to as a "petition, etc." in the following
paragraph).
(2) Inspection, etc. of the record of the case seeking the return of child under the
provision of Article 62 (1) pertaining to the petition, etc. filed pursuant to the
provision of the main clause of Article 132-10 (1) of the Code of Civil Procedure
as applied mutatis mutandis pursuant to the preceding paragraph shall be
made by means of the document set forth in Article 132-10 (5) of said Code. The
same shall apply to serving or sending a document pertaining to such petition,etc.Subsection 2 Proceedings of Case Seeking Return of Child in Court of35First Instance
Division 1 Petition for Return of Child
(Method of Filing Petition, etc.)
Article 70 (1) A petition for the return of child shall be filed by submitting a
written petition (hereinafter referred to as a "written petition for the return of
child") to the family court.
(2) A written petition for the return of child shall state the following matters. In
this case, the object of the petition listed in item (ii) shall be stated by
specifying the child who is sought to be returned and the Contracting State to
which the child is to be returned:
(i) The parties and statutory agents;
(ii) The object of petition;
(iii) A statement to the effect that the filing of the petition is in accordance
with the procedures for the case seeking the return of child.
(3) A petitioner may request the return of two or more children by one petition.
(4) Where a written petition for the return of child is in violation of the provision
of paragraph (2), the presiding judge shall specify a reasonable period and
order that such defect should be corrected within that period. The same shall
apply where fees for filing a petition required under the provisions of the Act
on Costs of Civil Procedure (Act No. 40 of 1971) are not paid.
(5) In the case referred to in the preceding paragraph, if the petitioner fails to
correct the defect, the presiding judge, by a direction, shall dismiss the written
petition for the return of child without prejudice.
(6) An immediate appeal may be filed against the direction set forth in the
preceding paragraph.
(Amendment of Petition)
Article 71 (1) The petitioner, unless there is no change to the basis for a petition,
may amend the object of the petition; provided, however, that this shall not
apply after the proceedings is concluded pursuant to the provisions of Article89.(2) An amendment of the object of the petition shall be made by means of a
document, except where it is made on the date for the proceedings of the case
seeking the return of child.
(3) The family court, when it finds that an amendment of the object of the
petition is unlawful, shall make a judicial decision not to permit such
amendment.
(4) The family court, when an amendment of the object of the petition would
substantially delay the proceedings of the case seeking the return of child, may
make a judicial decision not to permit such amendment.36(Sending of Copy of Written Petition, etc.)
Article 72 (1) Where a petition for the return of child is filed, the family court
shall send a copy of the written petition for the return of child to the
respondent except where the petition is unlawful or it is obvious that the
petition is groundless.
(2) Sending of a copy of the written petition for the return of child under the
provision of the preceding paragraph shall not be made through the method of
service by publication.
(3) The provisions from Article 70 (4) to (6) shall apply mutatis mutandis to the
case where it is impossible to send a copy of the written petition for the return
of child under the provision of paragraph (1).
(4) The presiding judge, where he/she has specified a reasonable period and
ordered the petitioner to prepay the costs for sending a copy of the petition for
the return of child under the provision of paragraph (1), but such costs are not
prepaid, shall, by a direction, dismiss the petition for the return of child
without prejudice.
(5) An immediate appeal may be filed against the direction set forth in the
preceding paragraph.
Division 2 Date for Proceedings of Case Seeking Return of Child
(Presiding Judge's Control of Proceedings)
Article 73 (1) On the date for the proceedings of the case seeking the return of
child, the presiding judge shall direct the proceedings.
(2) The presiding judge may permit a person to speak or prohibit a person who
does not comply with his/her direction from speaking.
(3) When a party has made an objection to a direction issued by the presiding
judge with regard to the control of the proceedings, the family court shall make
a judicial decision on such objection.
(Proceedings by Authorized Judge)
Article 74 (1) The family court may have an authorized judge conduct
proceedings on the date for the proceedings of the case seeking the return of
child; provided, however, that, with respect to the examination of the facts and
the examination of evidence, this shall apply only where an authorized judge
may conduct the examination of the facts or the examination of evidence
pursuant to the provision of Article 82 (3) or the provisions of Part II, Chapter
IV, Sections 1 to 6 of the Code of Civil Procedure as applied mutatis mutandis
pursuant to Article 86 (1).
(2) In the case referred to in the preceding paragraph, said judge shall perform37the duties of the family court and the presiding judge.
(Proceedings through Communication by Audio Transmissions)
Article 75 (1) When a party lives in a remote place or the family court finds it
appropriate for any other reasons, the family court, after hearing opinions of
the parties, may conduct proceedings (excluding the examination of evidence)
on the date for the proceedings of the case seeking the return of child, as
provided for by the Rules of the Supreme Court, by a method that enables the
family court and both parties to simultaneously communicate with one another
by audio transmissions.
(2) The party who has participated in the proceedings set forth in the preceding
paragraph without appearing on the date for the proceedings of the case
seeking the return of child shall be deemed to have appeared on that date.
(Other Measures including Attendance of Interpreter, etc.)
Article 76 The provision of Article 154 of the Code of Civil Procedure shall apply
mutatis mutandis to the attendance of an interpreter, etc. on the date for the
proceedings of the case seeking the return of child, and the provision of Article
155 of said Code shall also apply mutatis mutandis to the measures taken for a
party, intervening child, agent, or assistant in court, who is unable to make the
statements necessary to clarify the matters related to the proceedings of the
case seeking the return of child.
Division 3 Examination of Facts and Examination of Evidence
(Examination of Facts and Examination of Evidence, etc.)
Article 77 (1) The family court, by its own authority, shall conduct an
examination of the facts and, upon petition or by its own authority, shall
conduct an examination of evidence deemed to be necessary.
(2) The petitioner and the respondent shall present the materials on the grounds
prescribed in Article 27 (including the grounds relating to the case prescribed
in Article 28 (1) (ii)) and the materials on the grounds prescribed in said
paragraph, respectively and shall cooperate in the examination of the facts and
the examination of evidence.
(Prima Facie Showing)
Article 78 A prima facie showing shall be made by materials that can be
examined immediately.
(Examination of Facts by Family Court Probation Officer)
Article 79 (1) The family court may have a family court probation officer conduct38an examination of the facts.
(2) In urgent circumstances, the presiding judge may have a family court
probation officer conduct an examination of the facts.
(3) A family court probation officer shall report the results of the examination of
the facts in writing or orally to the family court.
(4) A family court probation officer may attach his/her opinion to the report
under the provision of the preceding paragraph.
(Attendance by Family Court Probation Officer on Date for Proceedings, etc.)
Article 80 (1) The family court, when it finds it necessary, may have the
attendance of a family court probation officer on the date for the proceedings of
the case seeking the return of child.
(2) The family court, when it finds it necessary, may have the family court
probation officer who attends the proceedings pursuant to the provision of the
preceding paragraph state his/her opinion.
(Examination by Technical Officials of Courts, etc.)
Article 81 (1) The family court, when it finds it necessary, may have a technical
official of the court who is a physician examine the physical and psychological
conditions of the persons concerned in the case.
(2) The provisions from Article 79 (2) to (4) shall apply mutatis mutandis to the
examination set forth in the preceding paragraph, and the provision of the
preceding Article shall also apply mutatis mutandis to the attendance of said
technical official on the date for the proceedings and the statement of his/her
opinion thereat.
(Commission of Examination of Facts, etc.)
Article 82 (1) The family court may commission another family court to conduct
an examination of the facts.
(2) A commissioned judge who performs his/her duties based on the commission
under the provision of the preceding paragraph, when he/she finds it
appropriate for another family court to conduct the examination of the facts,
may further commission such other family court to conduct the examination of
the facts.
(3) The family court, when it finds it appropriate, may have an authorized judge
conduct an examination of the facts.
(4) When a commissioned judge or an authorized judge conducts an examination
of the facts pursuant to the provisions of the preceding three paragraphs, the
respective judge shall perform the duties of the family court and the presiding
judge.39(Commission of Examination, etc.)
Article 83 The family court may commission the Minister for Foreign Affairs as
well as a government agency, a public office, or any other person that it deems
appropriate to conduct necessary examination or may request a school, nursery
center, or any other person that it finds appropriate to submit a necessary
report relating to such matters as the physical and psychological conditions
and living circumstances of the child.
(Notice of Examination of Facts)
Article 84 The family court, when it conducts an examination of the facts, shall
notify the parties and the intervening child to that effect, except where it finds
it specifically unnecessary.
(Hearing of Statements)
Article 85 (1) The family court shall hear statements from the parties except
where the petition for the return of child is unlawful or it is obvious that the
petition is groundless.
(2) When the family court conducts an examination of the facts by setting a
hearing date and hearing one party's statements, the other party may attend
on said date; provided, however, that this shall not apply where the other
party's attendance would risk hindering the examination of the facts.
(Examination of Evidence)
Article 86 (1) The provisions of Part II, Chapter IV, Sections 1 to 6 of the Code of
Civil Procedure (excluding the provisions of Articles 179, 182, 187 to189, and
Article 207 (2) of said Code) shall apply mutatis mutandis to the examination
of evidence in the proceedings of the case seeking the return of child. In this
case, the term "a district court or summary court" in Article 185 (1) of said
Code shall be deemed to be replaced with "another family court" and the term
"district court or summary court" in Article 185 (2) of said Code shall be
deemed to be replaced with "family court."
(2) An immediate appeal under the provisions of the Code of Civil Procedure as
applied mutatis mutandis pursuant to the preceding paragraph shall have the
effect of stay of execution.
(Submission of Document Proving Wrongfulness)
Article 87 The family court, when the petitioner may obtain a document proving
that there has been a wrongful removal or a wrongful retention in the state of
habitual residence, may request him/her to submit said document.
Division 4 Understanding of Intention of Child in Proceedings of40Case Seeking Return of Child, etc.
Article 88 In the proceedings of the case seeking the return of child, the family
court shall endeavor to understand the intention of the child through
appropriate means such as hearing of his/her statements and examination by a
family court probation officer, and shall take into account his/her intention
according to his/her age and degree of development in making a final order.
Division 5 Conclusion of Proceedings, etc.
(Conclusion of Proceedings)
Article 89 In the proceedings of the case seeking the return of child, except
where the petition is unlawful or it is obvious that the petition is groundless,
the family court shall decide the day on which proceedings are to be concluded,
giving a reasonable grace period; provided, however, that on the date for the
proceedings of the case seeking the return of child which both parties can
attend, a court may immediately declare the conclusion of proceedings.
(Date of Judicial Decision)
Article 90 The family court, when it concludes the proceedings pursuant to the
provision of the preceding Article, shall set the date to make a judicial decision.
Division 6 Judicial Decision
(Method of Judicial Decision)
Article 91 In the proceedings of the case seeking the return of child, the family
court shall make a judicial decision by an order.
(Final Order)
Article 92 (1) The family court, when the case seeking the return of child is ripe
for making a judicial decision, shall make a final order.
(2) The family court, when part of the case seeking the return of child is ripe for
making a judicial decision, may make a final order with regard to such part.
The same shall apply where one of multiple cases seeking the return of child
for which consolidation of the proceedings has been ordered is ripe for making
a judicial decision.
(Notice of Final Order and Effectuation, etc.)
Article 93 (1) A final order shall be notified to the parties and the child by a
method that is considered to be appropriate; provided, however, that this shall
not apply where it is found that a notice to the child (excluding the intervening41child) would harm his/her interests, taking into consideration his/her age and
degree of development and all other circumstances.
(2) A final order shall become effective when it is notified to the parties; provided,
however, that the final order to order the return of child shall not become
effective until it becomes final and binding.
(3) A final order shall not become final and binding until the expiration of the
period for filing an immediate appeal.
(4) The process of a final order becoming final and binding shall be interrupted
by the filing of an immediate appeal within the period set forth in the
preceding paragraph.
(Formality of Final Order and Written Order)
Article 94 (1) A final order shall be made by preparing a written judicial decision.
(2) A written judicial decision for a final order shall state the following matters:
(i) The main text;
(ii) The reasons;
(iii) The parties and statutory agents;
(iv) The court.
(Order of Correction)
Article 95 (1) If there is a clerical error or any other clear error similar thereto
in a final order, the family court, upon petition or by its own authority, may
make an order of correction at any time.
(2) An order of correction shall be made by preparing a written judicial decision.
(3) An immediate appeal may be filed against an order of correction only by a
person who is entitled to file an immediate appeal if the final order after
correction were the original order.
(4) An immediate appeal may be filed against a judicial decision to dismiss
without prejudice the petition set forth in paragraph (1) as unlawful.
(5) Where a lawful immediate appeal is filed against a final order, an immediate
appeal set forth in the preceding two paragraphs may not be filed.
(Application Mutatis Mutandis of Code of Civil Procedure concerning Final
Order)
Article 96 The provisions of Article 247, Article 256 (1), and Article 258
(excluding the second sentence of paragraph (2)) of the Code of Civil Procedure
shall apply mutatis mutandis to final order. In this case, the term "after the
rendition" in Article 256 (1) of said Code shall be deemed to be replaced with
"from the date when the final order is first notified to the person who is to
receive such notice."42(Interlocutory Order)
Article 97 (1) The family court, when the case is ripe for making a judicial
decision with regard to a dispute on legal matters which would be the basis of a
final order or any other interlocutory dispute, may make an interlocutory order.
(2) An interlocutory order shall be made by preparing a written judicial decision.
(Judicial Decision other than Final Order)
Article 98 (1) A judicial decision other than a final order shall be notified to a
person who is to receive such notice by a method that is considered to be
appropriate.
(2) A judicial decision other than a final order shall become effective by notifying
a person who is to receive such notice (if there are several such persons, one of
them).
(3) The provisions of Article 92 to Article 96 (excluding Article 93 (1) and (2), and
Article 94 (1)) shall apply mutatis mutandis to the judicial decision set forth in
the preceding paragraph. In this case, the term "the reasons" in Article 94 (2)
(ii) shall be deemed to be replaced with "the gist of the reasons."
(4) A judicial decision concerning the control of the proceedings of the case
seeking the return of child may be rescinded at any time.
(5) A judicial decision other than a final order may be made by an assistant judge
independently.
Division 7 Conclusion of Case Seeking Return of Child other than by
Judicial Decision
(Withdrawal of Petition for Return of Child)
Article 99 (1) A petition for the return of child may be withdrawn in whole or
part before a final order becomes final and binding; provided, however, that a
withdrawal of the petition after a final order is made shall not become effective
without the consent of the respondent.
(2) Where the consent of the respondent is required to withdraw the petition
pursuant to the proviso of the preceding paragraph, the family court shall
notify the respondent that the petition is withdrawn; provided, however, that
this shall not apply where the petition is withdrawn orally on the date for the
proceedings of the case seeking the return of child and the respondent appears
on that date.
(3) If the respondent does not make an objection within two weeks from the day
on which he/she receives a notice under the provision of the main clause of the
preceding paragraph, he/she shall be deemed to have consented to the
withdrawal of the petition. The same shall apply where, in the case under the
provision of the proviso of said paragraph, the respondent does not make an43objection within two weeks from the day on which the petition is withdrawn.
(4) The provisions of Article 261 (3) and Article 262 (1) of the Code of Civil
Procedure shall apply mutatis mutandis to the withdrawal of the petition. In
this case, the term "the date for oral argument, preparatory proceedings or
settlement (hereinafter referred to as the 'date for oral argument, etc.' in this
Chapter)" in the proviso of Article 261 (3) of said Code shall be deemed to be
replaced with "the date for the proceedings of the case seeking the return of
child."
(Settlement)
Article 100 (1) The provisions of Articles 89, 264, and 265 of the Code of Civil
Procedure shall apply mutatis mutandis to the settlement of the case seeking
the return of child. In this case, the terms "the appearance date" in Articles
264 and "the date for oral argument, etc." in Article 265 (3) of said Code shall
be deemed to be replaced with "the date for the proceedings of the case seeking
the return of child."
(2) In the case seeking the return of child, settlement may be also entered into
with respect to the matters regarding the custody of child, the matters
regarding cooperation and mutual assistance between husband and wife, and
the matters regarding sharing of living expense.
(3) When a settlement on the matters listed in the following items is stated in a
record, such statement shall have the same effect as a judicial decision
specified in each of said items:
(i) The return of child: a final order to order the return of child which has
become final and binding;
(ii) The matters regarding the custody of child, the matters regarding
cooperation and mutual assistance between husband and wife, and the
matters regarding sharing of living expense: an adjudication under the
provision of Article 39 of the Domestic Relations Case Procedure Act (Act
No.52 of 2011) which has become final and binding;
(iii) Other matters: a final and binding judgment.
Subsection 3 Appeal
Division 1 Immediate Appeal against Final Order
(Judicial Decision subject to Immediate Appeal)
Article 101 (1) A party may file an immediate appeal against a final order.
(2) A child may file an immediate appeal against a final order to order the return
of child.
(3) An immediate appeal may not be filed independently against a judicial
decision on the burden of procedural costs.44(Period for Filing Immediate Appeal)
Article 102 (1) An immediate appeal against a final order shall be filed within an
unextendable period of two weeks; provided, however, that this shall not
preclude the effect of an immediate appeal filed prior to that period.
(2) The period of filing an immediate appeal by a party or an intervening child
shall commence to run at the time when he/she is notified of the final order.
(3) The period of filing an immediate appeal by a child (excluding an intervening
child) shall commence to run at the time when a party is notified of the final
order (when there are two or more dates, the latest date among them).
(Formality of Filing of Immediate Appeal, etc.)
Article 103 (1) An immediate appeal shall be filed by submitting a petition for
appeal to the court of prior instance.
(2) A petition for appeal shall state the following matters:
(i) The parties and statutory agents;
(ii) The indication of the order of prior instance and a statement to the effect
that an immediate appeal is filed against said order.
(3) If an immediate appeal is unlawful and it is obvious that such defect cannot
be corrected, the court of prior instance shall dismiss such appeal without
prejudice.
(4) An immediate appeal may be filed against the final order under the provision
of the preceding paragraph.
(5) An immediate appeal set forth in the preceding paragraph shall be filed
within an unextendable period of one week; provided, however, that this shall
not preclude the effect of an immediate appeal filed prior to that period.
(6) The provisions of Article 70 (4) and (5) shall apply mutatis mutandis where
the petition for appeal is in violation of the provision of paragraph (2), and
where fees for filing a petition for immediate appeal required under the
provisions of the Act on Costs of Civil Procedure are not paid.
(Sending of Copy of Petition for Appeal, etc.)
Article 104 (1) Where an immediate appeal is filed against a final order, the
court in charge of an appeal shall send a copy of the petition for appeal to the
parties and the intervening child (excluding the appellant) in the prior
instance, except where the immediate appeal is unlawful or it is obvious that
the immediate appeal is groundless.
(2) The presiding judge, where he/she has specified a reasonable period and
ordered the appellant to prepay costs necessary for sending a copy of the
petition for appeal pursuant to the provision of the preceding paragraph, but
such costs are not prepaid, shall, by a direction, dismiss the petition for appeal45without prejudice.
(Hearing of Statement)
Article 105 The court in charge of an appeal shall hear statements from the
parties in the prior instance (excluding the appellant), except where the
immediate appeal is unlawful or it is obvious that the immediate appeal is
groundless.
(Judicial Decision by Court in charge of Appeal)
Article 106 The court in charge of an appeal, where it finds that an immediate
appeal is well-grounded, shall make a judicial decision by itself; provided,
however, that this shall not apply where the court in charge of an appeal
remands the case to the court of first instance pursuant to the provisions of
Article 307 or Article 308 (1) of the Code of Civil Procedure as applied mutatis
mutandis pursuant to paragraph (3) of the following Article.
(Application Mutatis Mutandis of Proceedings in First Instance and Code of
Civil Procedure)
Article 107 (1) Except as otherwise provided, the provisions of the preceding
Subsection (excluding the provisions of Article 70 (6), Article 72 (2) and (5),
Article 93 (3) and (4), Article 95 (3) to (5) and Article 98 (5)) shall apply
mutatis mutandis to the procedures relating to the immediate appeal against a
final order and said appeal instance.
(2) The court in charge of an appeal, where it is not required to send a copy of the
petition for appeal pursuant to the provision of Article 104 (1), may dismiss
with or without prejudice an immediate appeal without following the
procedures of conclusion of the proceedings under the provision of Article 89 as
applied mutatis mutandis pursuant to the preceding paragraph.
(3) The provisions of Articles 283, 284, 292, Article 298 (1), Articles 299, 302, 303,
and 305 to 309 of the Code of Civil Procedure shall apply mutatis mutandis to
the procedures relating to the immediate appeal against a final order and said
appeal instance. In this case, the term "Article 261 (3), Article 262 (1) and
Article 263" in Article 292 (2) of said Code shall be deemed to be replaced with
"Article 99 (4) of the Act for Implementation of the Convention on the Civil
Aspect of International Child Abduction," and the term "any of the items of
Article 6 (1)" in Article 299 (2) of said Code shall be deemed to be replaced with
"any of the items of Article 32 (1) of the Act for Implementation of the
Convention on the Civil Aspect of International Child Abduction," and the term
"Article 189" in Article 303 (5) of said Code shall be deemed to be replaced with
"Article 150 of the Act for Implementation of the Convention on the Civil
Aspect of International Child Abduction."46Division 2 Special Appeal against Final Order
(Judicial Decision subject to Special Appeal, etc.)
Article 108 (1) Against a final order made by a high court, a special appeal
against such order may further be filed with the Supreme Court on the grounds
that said order contains a misconstruction of the Constitution or any other
violation of the Constitution.
(2) The court in charge of an appeal before which the appeal set forth in the
preceding paragraph (hereinafter referred to as a "special appeal") is pending
shall conduct an examination only on the reasons for the special appeal stated
in the petition for appeal or the statement of the reasons for the appeal.
(Stay of Execution of Judicial Decision of Prior Instance)
Article 109 (1) A special appeal shall not have the effect of stay of execution;
provided, however, that, the court in charge of an appeal set forth in paragraph
(2) of the preceding Article or the court of prior instance may order, upon
petition, a stay of execution of the judicial decision of prior instance or any
other necessary disposition until a judicial decision for a special appeal is made,
while requiring or not requiring the provision of security.
(2) Where security is to be provided pursuant to the provision of the proviso of
the preceding paragraph, if it is provided as a statutory deposit, such deposit
shall be made at the official depository located in the jurisdictional district of
the family court that has jurisdiction over the location of the court that has
ordered the provision of security.
(3) The provisions of Articles 76, 77, 79, and 80 of the Code of Civil Procedure
shall apply mutatis mutandis to the security set forth in the preceding
paragraph.
(Application Mutatis Mutandis of Provisions on Immediate Appeal and Code of
Civil Procedure)
Article 110 (1) The provisions of Article 102 (2) and (3), Article 103 (excluding
paragraphs (4) and (5)), Articles 104, 105, and 107 shall apply mutatis
mutandis to the procedures relating to the special appeal and said appeal
instance.
(2) The provisions of Article 314 (2), Article 315, Article 316 (1) (limited to the
part pertaining to item (ii)), Article 321 (1), Article 322, the first sentence of
Article 325 (1), Article 325 (2), the second sentence of Article 325 (3) and
Article 325 (4), Article 326, and Article 336 (2) of the Code of Civil Procedure
shall apply mutatis mutandis to the procedures relating to the special appeal
and said appeal instance. In this case, the term "Article 288 and Article 289 (2)47as applied mutatis mutandis pursuant to the preceding Article" in Article 314
(2) of said Code shall be deemed to be replaced with "Article 103 (6) of the Act
for Implementation of the Convention on the Civil Aspect of International
Child Abduction as applied mutatis mutandis pursuant to Article 110 (1) of
said Act," the term "the preceding two Articles" in Article 322 of said Code
shall be deemed to be replaced with "Article 108 (2) of the Act for
Implementation of the Convention on the Civil Aspect of International Child
Abduction and the provision of Article 321 (1) as applied mutatis mutandis
pursuant to Article 110 (2) of said Act," the term "Article 312 (1) or (2)" in the
first sentence of Article 325 (1) and Article 325 (2) of said Code shall be deemed
to be replaced with "Article 108 (1) of the Act for Implementation of the
Convention on the Civil Aspect of International Child Abduction," the term "In
this case" in the second sentence of paragraph (3) of said Article shall be
deemed to be replaced with "Where a court that has accepted a case remanded
or transferred thereto makes a judicial decision," and the term "set forth in the
preceding paragraph" in paragraph (4) of said Article shall be deemed to be
replaced with "in a court that has accepted a case remanded or transferred
thereto."
Division 3 Appeal with Permission against Final Order
(Judicial Decision subject to Appeal with Permission, etc.)
Article 111 (1) Against a final order made in a high court (excluding an order on
a petition set forth in the following paragraph), in addition to the case under
the provision of Article 108 (1), an appeal may be specially filed with the
Supreme Court only if the high court permits it pursuant to the provision of
the following paragraph.
(2) The high court set forth in the preceding paragraph, where the final order set
forth in said paragraph contains a determination that is inconsistent with
precedents rendered by the Supreme Court (or precedents rendered by the
former Supreme Court or those rendered by high courts as the final appellate
court or the court in charge of an appeal, if there are no precedents rendered by
the Supreme Court) or where said final order is found to involve material
matters concerning the construction of laws and regulations, shall permit an
appeal against the final order.
(3) The petition set forth in the preceding paragraph may not state the grounds
prescribed in Article 108 (1) as reasons for petition.
(4) Where permission is granted pursuant to the provision of paragraph (2), it
shall be deemed that an appeal against a final order set forth in paragraph (1)
(hereinafter referred to as an "appeal with permission" in this Article and
paragraph (1) of the following Article) is filed.48(5) The court in charge of an appeal before which an appeal with permission is
pending shall conduct an examination only on the reasons for the appeal with
permission stated in the written petition for the permission under the
provision of paragraph (2) or the statement of the reasons for the petition set
forth in said paragraph.
(6) The court in charge of an appeal before which an appeal with permission is
pending may quash the order of prior instance if there is a violation of laws or
regulations that apparently affects a final order.
(Application Mutatis Mutandis of Provisions on Immediate Appeal, etc. and
Code of Civil Procedure)
Article 112 (1) The provisions of Article 102 (2) and (3), Article 103 (excluding
paragraphs (4) and (5)), Articles 104, 105, 107, and 109 shall apply mutatis
mutandis to the procedures relating to the appeal with permission and said
appeal instance. In this case, the terms "an (the) immediate appeal" in Article
102 (2) and (3), Article 103 (1), (2)(ii), and (3), Article 104 (1), and Article 105,
"filing a petition for an immediate appeal" in Article 103 (6), and "a special
appeal" in the main clause of Article 109 (1) shall be deemed to be replaced
with "a (the) petition set forth in Article 111 (2)," and the term "a (the) petition
for appeal" in Article 103 (1), (2), and (6), Article 104, and Article 107 (2) shall
be deemed to be replaced with "a written petition for the permission under the
provision of Article 111 (2)," and the term "an (the) immediate appeal" in said
Article and "a special appeal" in the proviso of Article 109 (1) shall be deemed
to be replaced with "an appeal with permission prescribed in Article 111 (4)."
(2) The provisions of Article 315 and Article 336 (2) of the Code of Civil
Procedure shall apply mutatis mutandis to the petition set forth in paragraph
(2) of the preceding Article, and the provision of Article 318 (3) of said Code
shall apply mutatis mutandis where a permission is granted pursuant to the
provision of paragraph (2) of the preceding Article, and the provisions of the
second sentence of Article 318 (4), Article 321 (1), Article 322, the first
sentence of Article 325 (1), Article 325 (2), the second sentence of Article 325
(3), Article 325 (4), and Article 326 of said Code shall apply mutatis mutandis
where permission has been granted pursuant to the provision of paragraph (2)
of the preceding Article. In this case, the term "Article 320" in the second
sentence of Article 318 (4) shall be deemed to be replaced with "Article 111 (5)
of the Act for Implementation of the Convention on the Civil Aspect of
International Child Abduction," and the term "the preceding two Articles" in
Article 322 of said Code shall be deemed to be replaced with "the provisions of
Article 111 (5) of the Act for Implementation of the Convention on the Civil
Aspect of International Child Abduction and Article 321 (1) as applied mutatis
mutandis pursuant to Article 112 (2) of said Act," and the term "Article 312 (1)49or (2)" in the first sentence of Article 325 (1) and Article 325 (2) of said Code
shall be deemed to be replaced with "Article 111 (2) of the Act for
Implementation of the Convention on the Civil Aspect of International Child
Abduction," and the term "In this case" in the second sentence of paragraph (3)
of said Article shall be deemed to be replaced with "Where a court that has
accepted a case remanded or transferred thereto makes a judicial decision,"
and the term "set forth in the preceding paragraph" in paragraph (4) of said
Article shall be deemed to be replaced with "in a court that has accepted a case
remanded or transferred thereto."
Division 4 Appeal against Judicial Decision other than Final Order
(Subject of Appeal)
Article 113 An immediate appeal may be filed against a judicial decision other
than a final order, only in cases where there are special provisions allowing
such filings.
(Objection against Judicial Decision made by Authorized Judge or
Commissioned Judge)
Article 114 (1) A party who disagrees with a judicial decision made by an
authorized judge or a commissioned judge may make an objection to the court
before which the case seeking the return of child is pending; provided, however,
that this shall apply only where an immediate appeal may be filed against the
judicial decision if said judicial decision is made by the family court.
(2) An immediate appeal may be filed against a judicial decision on the objection
set forth in the preceding paragraph.
(Period for Filing Immediate Appeal, etc.)
Article 115 (1) An immediate appeal against a judicial decision other than a
final order shall be filed within an unextendable period of one week; provided,
however, that this shall not preclude the effect of an immediate appeal filed
prior to that period.
(2) An immediate appeal set forth in the preceding paragraph, except as
otherwise provided, shall not have the effect of stay of execution; provided,
however, that, the court in charge of an appeal or the court of prior instance
may order, upon petition, a stay of execution of the judicial decision of prior
instance or any other necessary disposition until a judicial decision is made
with respect to such immediate appeal, while requiring or not requiring the
provision of security.
(3) The provisions of Article 109 (2) and (3) shall apply mutatis mutandis to the
deposit and security in the case where security is to be provided pursuant to50the provision of the proviso of the preceding paragraph.
(4) The court, the judge, or the presiding judge which or who has made the
judicial decision of prior instance, when it or he/she finds that an immediate
appeal is well-grounded, shall correct the judicial decision.
(Application Mutatis Mutandis of Provisions on Appeal against Final Order,
etc.)
Article 116 (1) The provisions of the preceding three Divisions (excluding the
provisions of Article 101 (1) and (2), Article 102 (1) and (3), Articles 104 and
105 (including the cases where these provisions are applied mutatis mutandis
pursuant to Article 112 (1)) and Article 110) shall apply mutatis mutandis to
the appeal against a judicial decision other than a final order made by a court,
a judge, or a presiding judge. In this case, the term "a final order made in a
high court" in Article 108 (1) shall be deemed to be replaced with "a judicial
decision other than a final order made by a family court against which an
appeal may not be filed, and a judicial decision other than a final order made
by a high court," and the term "pursuant to the provision of the following
paragraph." in Article 111 (1) shall be deemed to be replaced with "pursuant to
the provision of the following paragraph; provided, however, that this shall
apply only where an immediate appeal may be filed against the order if said
order is made by the family court."
(2) The provisions of Article 102 (2) and (3) and Articles 103 and 107 shall apply
mutatis mutandis to the procedures relating to the special appeal against a
judicial decision other than a final order made by a court, a judge, or a
presiding judge and said appeal instance. In this case, the term "and
paragraph (5)" in Article 103 (6) shall be deemed to be replaced with "to
paragraph (6)."
(3) The provisions of Article 314 (2), Article 315, Article 316 (excluding item (i) of
paragraph(1)), Article 321 (1), Article 322, the first sentence of Article 325 (1),
Article 325 (2), the second sentence of Article 325 (3), Article 325 (4), Article
326, and Article 336 (2) of the Code of Civil Procedure shall apply mutatis
mutandis to the procedures relating to the special appeal against a judicial
decision other than a final order made by a court, a judge, or a presiding judge
and said appeal instance. In this case, the term "Article 288 and Article 289 (2)
as applied mutatis mutandis pursuant to the preceding Article" in Article 314
(2) of said Code shall be deemed to be replaced with "Article 103 (6) of the Act
for Implementation of the Convention on the Civil Aspect of International
Child Abduction as applied mutatis mutandis by replacing the term pursuant
to Article 116 (2) of said Act," and the term "against" in Article 316 (2) of said
Code shall be deemed to be replaced with "within an unextendable period of
one week, against", and the term "the preceding two Articles" in Article 322 of51said Code shall be deemed to be replaced with "Article 108 (2) of the Act for
Implementation of the Convention on the Civil Aspect of International Child
Abduction as applied mutatis mutandis pursuant to Article 116 (1) of said Act
and the provisions of Article 321 (1) of said Code as applied mutatis mutandis
pursuant to Article 116(3) of said Act," and the term "Article 312 (1) or (2)" in
the first sentence of Article 325 (1) and Article 325 (2) of said Code shall be
deemed to be replaced with "Article 108 (1) of the Act for Implementation of the
Convention on the Civil Aspect of International Child Abduction as applied
mutatis mutandis by replacing the term pursuant to Article 116 (1) of said
Act," and the term "In this case" in the second sentence of paragraph (3) of said
Article shall be deemed to be replaced with "Where a court that has accepted a
case remanded or transferred thereto makes a judicial decision," and the term
"set forth in the preceding paragraph" in paragraph (4) of said Article shall be
deemed to be replaced with "made by a court that has accepted a case
remanded or transferred thereto."
Subsection 4 Modification of Final Order
(Modification of Final Order)
Article 117 (1) After a final order to order the return of child has become final
and binding, when the court which made the final order to order the return of
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.
(2) A written petition for modification of a final order under the provision of the
preceding paragraph shall state the following matters:
(i) The parties and statutory agents;
(ii) The indication of the final order to which modification is sought and a
statement to the effect that modification to said order is sought;
(iii) The reasons for seeking modification to the final order.
(3) The court, when modifying the final order pursuant to the provision of
paragraph (1), shall hear statements from the parties (excluding the person
who has filed a petition set forth in said paragraph).
(4) Against a final order to dismiss without prejudice a petition set forth in52paragraph (1), the party who has filed said petition may file an immediate
appeal.
(5) An immediate appeal may be filed against an order to modify a final order
pursuant to the provision of paragraph (1).
(6) In addition to what is provided for in each of the preceding paragraphs, with
respect to proceedings for modification of a final order under the provision of
paragraph (1) , unless contrary to the nature thereof, the provisions concerning
proceedings in their respective instances shall apply mutatis mutandis.
(Judicial Decision of Stay of Execution)
Article 118 (1) In cases where a petition set forth in paragraph (1) of the
preceding Article is filed, if the circumstances alleged as the reasons for
modification under the provision of said paragraph appear to be legally well-
grounded and a prima facie showing is made on factual matters, the court may,
upon petition, order a temporary stay of compulsory execution while requiring
or not requiring the provision of security, or order revocation of a disposition of
execution already made while requiring the provision of security.
(2) An appeal may not be filed against the judicial decision on the petition under
the provision of the preceding paragraph.
(3) The provisions of Article 109 (2) and (3) shall apply mutatis mutandis to the
deposit and security in the case where security is to be provided pursuant to
the provision of paragraph (1).
Subsection 5 Retrial
(Retrial)
Article 119 (1) A petition for retrial may be filed against a judicial decision, such
as a final order, which has become final and binding (limited to those
concluding the case; the same shall apply in paragraph (5)).
(2) With regard to proceedings for retrial, unless contrary to the nature thereof,
the provisions concerning proceedings in their respective instances shall apply
mutatis mutandis.
(3) The provisions of Part 4 of the Code of Civil Procedure (excluding Articles 341
and 349 of said Code) shall apply mutatis mutandis to the petition for retrial
set forth in paragraph (1) and its proceedings. In this case, the term "shall
conduct a trial and make a judicial decision on the merits to the extent that an
appeal is entered" in Article 348 (1) of said Code shall be deemed to be replaced
with "shall conduct a trial and make a judicial decision on the merits."
(4) An immediate appeal against an order of commencement of retrial set forth in
Article 346 (1) of the Code of Civil Procedure as applied mutatis mutandis
pursuant to the preceding paragraph shall have the effect of stay of execution.53(5) Against an order to dismiss the petition for retrial against a final order or
other judicial decision pursuant to the provision of Article 348 (2) of the Code
of Civil Procedure as applied mutatis mutandis pursuant to paragraph (3), an
immediate appeal may be filed only by a person who is entitled to file an
immediate appeal against said final order or other judicial decision.
(Judicial Decision of Stay of Execution)
Article 120 (1) In cases where a petition for retrial set forth in paragraph (1) of
the preceding Article is filed, if the circumstances alleged as the reason of
objection appear to be legally well-grounded and a prima facie showing is made
on factual matters and a prima facie showing is made to the effect that
execution is likely to cause damage for which compensation cannot be made,
the court may, upon petition, order a temporary stay of compulsory execution
while requiring or not requiring the provision of security, or order revocation of
a disposition of execution already made while requiring the provision of
security.
(2) An appeal may not be filed against the judicial decision on the petition under
the provision of the preceding paragraph.
(3) The provisions of Article 109 (2) and (3) shall apply mutatis mutandis to the
deposit and security in the case where security is to be provided pursuant to
the provision of paragraph (1).
Section 4 Examination on Status of Performance of Obligation and
Recommendation of Performance
Article 121 (1) The family court which made a final order to order the return of
child (where a court in charge of an appeal made a final order to order the
return of child, the family court which is the court of first instance; the same
shall apply hereinafter.), when requested by the right holder, may examine the
status of the performance of the obligations of the return of child and
recommend the obligor to perform such obligations.
(2) The family court which made a final order to order the return of child may
commission another family court to conduct the examination and make the
recommendation under the provision of the preceding paragraph.
(3) The family court which made a final order to order the return of child and the
family court which is commissioned to conduct the examination and make the
recommendation pursuant to the provision of the preceding paragraph (said
family courts shall be referred to as a "family court which conducts the
examination and makes the recommendation" in the following paragraph and
paragraph (5)) may have a family court probation officer conduct the
examination and make the recommendation under the provision of paragraph54(1).
(4) A family court which conducts the examination and makes the
recommendation may commission the Minister for Foreign Affairs as well as a
government agency, a public office, or any other person that it finds
appropriate to conduct a necessary examination for the examination and the
recommendation under the provision of paragraph (1) or may request a school,
nursery center, or any other person that it finds appropriate to submit a
necessary report relating to the living circumstances of a child or any other
matters.
(5) A family court which conducts the examination or makes the recommendation,
where a request has been made from a person concerned to the case on the
examination and recommendation under the provision of paragraph (1) for
inspection, copying or reproduction of the record of the case, issuance of an
authenticated copy, transcript, or extract thereof, or issuance of a certificate of
the matters concerning the case, and when it finds it appropriate, may grant
the permission thereof.
(6) With respect to the proceedings for the examination and the recommendation
under the provision of paragraph (1), unless contrary to the nature thereof, the
provisions of Subsection 1 of the preceding Section shall apply mutatis
mutandis.
(7) The provisions of the preceding paragraphs shall apply mutatis mutandis to
the performance of the obligations provided for by the settlement.
Section 5 Ne Exeat Order
(Ne Exeat Order)
Article 122 (1) Where there is a risk that a party to the case seeking the return
of child has the child depart from Japan, the family court before which the case
seeking the return of child is pending, upon petition by either party to the case,
may order the other party not to have the child depart from Japan.
(2) The family court, when it finds that the respondent of the case pertaining to
the petition under the provision of the preceding paragraph holds the passport
of which the child is the registered holder, upon petition, shall make a judicial
decision under the provision of said paragraph to order the surrender of said
passport to the Minister for Foreign Affairs.
(3) Where a case seeking the return of child is pending before a high court, said
high court shall make the judicial decision under the provisions of the
preceding two paragraphs (hereinafter referred to as "ne exeat order").
(4) An ne exeat order shall cease to be effective when a final order on a petition
for the return of child becomes final and binding.55(Petition for Ne Exeat Order, etc.)
Article 123 (1) A petition for ne exeat order shall be filed by clarifying the object
thereof and the grounds to seek the ne exeat order.
(2) With respect to the grounds to seek an ne exeat order, the petitioner of the
case pertaining to the petition for the ne exeat order (hereinafter referred to as
the "case on the ne exeat order") shall submit materials.
(3) A petition for the judicial decision under the provision of paragraph (2) of the
preceding Article may be withdrawn before an ne exeat order is made.
(4) The provisions of Article 261 (3) and Article 262 (1) of the Code of Civil
Procedure shall apply mutatis mutandis to the withdrawal of a petition for the
ne exeat order. In this case, the term "the date for oral argument, preparatory
proceedings, or settlement (hereinafter referred to as the "date for oral
argument, etc." in this Chapter)" in the proviso of Article 261 (3) of said Code
shall be deemed to be replaced with "the date for the proceedings of the case on
the ne exeat order as prescribed in Article 123 (2) of the Act for
Implementation of the Convention on the Civil Aspects of International Child
Abduction."
(Hearing of Statement)
Article 124 An ne exeat order may not be made without hearing the statement of
the respondent of the case on the ne exeat order; provided, however, that this
shall not apply where there are circumstances under which the purpose of the
petition for the ne exeat order cannot be achieved if the proceedings to hear
statements are held.
(Inspection of Record, etc.)
Article 125 The court, with respect to the case on the ne exeat order,
notwithstanding the provision of Article 62 (3) as applied mutatis mutandis
pursuant to Article 133, where a party to the case on the ne exeat order files a
petition for permission under the provision of paragraph (1) or (2) of Article 62,
may grant said permission only where it finds it appropriate, until it notifies
the respondent to the case that the case on the ne exeat order is pending or
that an ne exeat order is made.
(Notice and Effect of Ne Exeat Order)
Article 126 (1) A judicial decision on the petition for the ne exeat order shall be
notified to the parties to the case on the ne exeat order by a method that is
considered to be appropriate.
(2) An ne exeat order shall become effective by notifying the respondent of the
case on the ne exeat order, and a judicial decision to dismiss the petition for
the ne exeat order shall become effective by notifying the petitioner of the case56on the ne exeat order.
(Immediate Appeal)
Article 127 A party to the case on the ne exeat order may file an immediate
appeal against a judicial decision on the petition for the ne exeat order.
(Stay of Execution in Connection with Immediate Appeal)
Article 128 (1) In cases where an immediate appeal is filed pursuant to the
provision of the preceding Article, if a prima facie showing is made to show
circumstances that are clearly grounds for revocation of the judicial decision of
prior instance, and of the likelihood that the execution of the judicial decision
of prior instance will cause damage which cannot be compensated, the court in
charge of the appeal may, upon petition, order a stay of execution of the
judicial decision of prior instance, while requiring or not requiring the
provision of security or requiring it as a condition, until a judicial decision for
said immediate appeal becomes effective. While the record of the case on the ne
exeat order still exists at a family court, the family court may also order such
dispositions.
(2) The provision of Article 123 (2) shall apply mutatis mutandis to the petition
set forth in the preceding paragraph, and the provisions of Article 109 (2) and
(3) shall also apply mutatis mutandis to the deposit and security where
security is to be provided pursuant to the provision of the preceding paragraph.
(Revocation of the Ne Exeat Order)
Article 129 (1) Where the grounds to seek the ne exeat order no longer exists or
there has been any other change in circumstances after the judicial decision
under the provision of Article 122 (1) has become final and binding, the court
before which the case seeking the return of child is pending may, upon petition
by a person who has received said judicial decision, make a judicial decision to
revoke said judicial decision.
(2) Where the court revokes the judicial decision under the provision of Article
122 (1), if the judicial decision under the provision of paragraph (2) of said
Article has been made, the court shall also revoke said judicial decision.
(3) The provisions of Article 123 and the preceding three Articles shall apply
mutatis mutandis to the petition set forth in paragraph (1) and the judicial
decision on said petition.
(Preparation of Record)
Article 130 A court clerk shall prepare a record of the proceedings on each date
for the proceedings of the case on the ne exeat order and the case pertaining to
the petition under the provision of paragraph (1) of the preceding Article57(referred to as the "case on revocation of the ne exeat order" in Article 133);
provided, however, that this shall not apply where the presiding judge finds it
unnecessary.
(Retention of Passport by Minister for Foreign Affairs)
Article 131 (1) When the Minister for Foreign Affairs receives a passport
pertaining to the judicial decision under the provision of Article 122 (2)
surrendered by the person who has received said judicial decision, the Minister
shall retain said passport.
(2) When a ne exeat order ceases to be effective, the Minister for Foreign Affairs,
upon request of the person who has surrendered the passport pursuant to the
preceding paragraph, shall return said passport to said person.
(Judicial Decision of Non-Penal Fine)
Article 132 The court, if a person who has received the judicial decision under
the provision of Article 122 (2) does not comply with said judicial decision,
shall punish him/her by a non-penal fine of not more than 200,000 yen.
(Application Mutatis Mutandis of Provisions on Proceedings of Case Seeking
Return of Child)
Article 133 The provisions of Subsections 1 to 3 and Subsection 5 (excluding
Articles 72, 84, 85, 87, 89, 90, 99, and 100) of Section 3 shall apply mutatis
mutandis to the proceedings of the case on the ne exeat order and the case on
revocation of the ne exeat order except as otherwise provided. In this case, the
term "the reasons" in Article 94 (2) (ii) shall be deemed to be replaced with "the
gist of the reasons."
Chapter IV Special Provisions of Civil Execution Act relating to Execution
Procedure for Return of Child
(Compulsory Execution of Return of Child)
Article 134 (1) Compulsory execution of the return of child shall be carried out
by the method in which the execution court issues an order to have a third
party implement the return of child pursuant to the provision of Article 171 (1)
of the Civil Execution Act (Act No. 4 of 1979) or by the method prescribed in
Article 172 (2) of said Act.
(2) Compulsory execution set forth in the preceding paragraph shall be
implemented on the basis of an authenticated copy of the final order to order
the return of child which has become final and binding (including those having
the same effect as the final order to order the return of child which has become
final and binding).58(Limitation of Compulsory Execution due to Age of Child)
Article 135 (1) Where the child has attained the age of 16, the compulsory
execution under the provision of Article 171 (1) of the Civil Execution Act
(including the implementation of the return of child based on the order under
the provision of said paragraph; hereinafter referred to as the "execution by
substitute of the return of child") may not be carried out.
(2) The execution court, in the proceedings of the compulsory execution of the
return of child by the method prescribed in Article 172 (1) of the Civil
Execution Act, shall not order a payment of money under the provision of said
paragraph for the reason that the child is not returned after the date following
the day on which the child attains the age of 16.
(Preposition of Indirect Compulsory Execution)
Article 136 A petition for the execution by substitute of the return of child may
not be filed until two weeks have elapsed from the day on which the order
under the provision of Article 172 (1) of the Civil Execution Act became final
and binding (where the elapse of a certain period to perform the obligations
specified by said order comes after the elapse of said two weeks, until the
elapse of said period).
(Petition for Execution by Substitute of Return of Child)
Article 137 A petition for the execution by substitute of the return of child shall
be filed by specifying a person who is to return the child to the state of
habitual residence on behalf of the obligor (hereinafter referred to as the
"return implementer").
(Order to Have Return of Child Implemented)
Article 138 An order set forth in Article 134 (1) shall be issued by designating a
court execution officer as a person who carries out necessary acts for releasing
the child from the care of the obligor and by designating the return
implementer.
(Dismissal of Petition for Execution by Substitute of Return of Child)
Article 139 The execution court, where it finds it inappropriate in light of the
interests of the child to designate the person who is to be a return implementer
set forth in Article 137 pursuant to the provision of the preceding Article, shall
dismiss the petition set forth in Article 137 without prejudice.
(Authority of Court Execution Officer)
Article 140 (1) A court execution officer may carry out the following acts, in59addition to persuading the obligor, in the residence of the obligor or any other
place possessed by the obligor, as necessary acts for releasing the child from
the care of the obligor:
(i) To enter the residence of the obligor or any other place possessed by the
obligor and to search for the child at such place, in which case, if it is
necessary, to take a necessary disposition to open a closed door;
(ii) To have the return implementer meet the child or to have the return
implementer meet the obligor;
(iii) To have the return implementer enter the residence of the obligor or any
other place possessed by the obligor.
(2) A court execution officer, in any place other than those prescribed in the
preceding paragraph, when he/she finds it appropriate while taking into
consideration the impact on the physical and psychological conditions of the
child, the situation of said place and the surroundings thereof, and any other
circumstances, may carry out the acts listed in each of the items of said
paragraph, as necessary acts for releasing the child form the care of the obligor,
with the consent of the person who possesses said place, in addition to
persuading the obligor.
(3) Necessary acts for releasing the child from the care of the obligor under the
provisions of the preceding two paragraphs may be carried out only when the
child is with the obligor.
(4) A court execution officer, if he/she faces resistance when carrying out
necessary acts for releasing the child from the care under the provision of
paragraph (1) or (2), may use force or request police assistance in order to
eliminate such resistance.
(5) A court execution officer, notwithstanding the provision of the preceding
paragraph, shall not use force against the child. Where there is a risk that use
of force against persons other than the child would cause physical or
psychological harm to the child, the same shall apply to said persons.
(6) A court execution officer, in carrying out necessary acts for releasing the child
from the care under the provision of paragraph (1) or (2), may give necessary
instructions to the return implementer.
(Authority of Return Implementer)
Article 141 (1) A return implementer may carry out necessary acts, such as
providing care for the child, in order to return the child to the state of habitual
residence.
(2) The provision of Article 171 (6) of the Civil Execution Act shall not apply to
the proceedings of the execution by substitute of the return of child.
(Cooperation by Minister for Foreign Affairs)60Article 142 The Minister for Foreign Affairs may provide necessary cooperation,
such as attendance, with regard to the execution by substitute of the return of
child.
(Inspection of Record of Execution Case, etc.)
Article 143 The provisions of Article 62 shall apply mutatis mutandis to the
request of inspection, copying or reproduction of the record of the case
pertaining to the compulsory execution of the return of child, issuance of an
authenticated copy, transcript, or extract thereof, or issuance of a certificate of
matters concerning said case.
Chapter V Special Provisions relating to Procedures for Domestic RelationsCaseSection 1 Procedures for Conciliation of Domestic Relations relating to
Case Seeking Return of Child, etc.
(Referral to Conciliation)
Article 144 A family court and a high court, with the consent of the parties, by
its own authority, may refer the case seeking the return of child to the
conciliation of domestic relations at any time.
(Special Provisions on the Domestic Relations Case Procedure Act)
Article 145 (1) The court, where it refers the case to the conciliation of domestic
relations pursuant to the provision of the preceding Article, shall handle said
case of conciliation of domestic relations by itself; provided, however, that
where it finds it particularly necessary in order to handle the case of
conciliation of domestic relations, the court may commission a family court
other than itself (limited to the family court specified in each item of Article 32
(1)) to handle the case.
(2) The provision of Article 43 (2) shall apply mutatis mutandis to the capacity to
perform procedural acts in the proceedings of the case of conciliation of
domestic relations where the case is referred to the conciliation of domestic
relations pursuant to the provision of the preceding Article.
(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 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 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 child that has become final and binding.
(4) With respect to the adjudication under the provision of Article 284 (1) of the61Domestic Relations Case Procedure Act which is made in the proceedings of the
case of conciliation of domestic relations where the case has been referred to
the conciliation of domestic relations pursuant to the provision of the preceding
Article (including the judicial decision in lieu of the adjudication in lieu of the
conciliation under the provision of Article 284 (1) of said Act as applied by
replacing the terms pursuant to the provision of paragraph (5) of Article 274 of
said Act; hereinafter referred to as the "adjudication in lieu of conciliation" in
this paragraph and Article 147), if an objection is not filed pursuant to the
provision of Article 286 (1) of said Act or if the adjudication to dismiss such
objection without prejudice (including the judicial decision in lieu of the
adjudication to dismiss the objection prescribed in Article 287 of said Act as
applied by replacing the terms pursuant to the provision of Article 274 (5) of
said Act) has become final and binding, the part of said adjudication in lieu of
conciliation which orders the return of child, notwithstanding the provision of
Article 287 of said Act, shall have the same effect as a final order to order the
return of child that has become final and binding.
(Suspension of Proceedings of Case Seeking Return of Child)
Article 146 The court, when it refers the case to the conciliation of domestic
relations pursuant to the provision of Article 144, may suspend the proceedings
of the case seeking the return of child until the case of conciliation of domestic
relations is closed.
(Constructive Withdrawal of Petition for Return of Child)
Article 147 Where the court refers the case to the conciliation of domestic
relations pursuant to the provision of Article 144, when a conciliation is
concluded or an adjudication in lieu of conciliation becomes final and binding,
it shall be deemed that the petition for the case seeking the return of child has
been withdrawn.
Section 2 Special Provisions relating to Procedures for Adjudication of
Domestic Relations and Conciliation of Domestic Relations concerning
Visitation or Other Contacts, etc.
(Special Provisions for Jurisdiction)
Article 148 (1) Where a person who has received the decision for assistance in
child's return to foreign state or the decision for assistance in visitation or
contact with child in Japan or a person who has filed the petition for the return
of child files a petition for the adjudication of domestic relations or conciliation
of domestic relations seeking to provide for the visitation or other contacts with
the child or to change such provision, and in the cases listed in the following62items, said petition may also be filed to the respective family courts specified
in each of said items:
(i) When the place of domicile of the child (if the child has no domicile in Japan
or his/her domicile is unknown, his/her residence; the same shall apply in the
following item.) is located within the jurisdictional district of the Tokyo High
Court, the Nagoya High Court, the Sendai High Court, or the Sapporo High
Court; the Tokyo Family Court;
(ii) When the place of domicile of the child is located within the jurisdictional
district of the Osaka High Court, the Hiroshima High Court, the Fukuoka
High Court, or the Takamatsu High Court; the Osaka Family Court
(2) The adjudication case and the conciliation case pertaining to the petition set
forth in the preceding paragraph shall be subject to the jurisdiction of the
Tokyo Family Court where the child has no domicile in Japan or his/her
domicile is unknown and he/she has no residence in Japan or his/her residence
is unknown.
(Special Provisions for Inspection, etc. of Record)
Article 149 (1) Where there is the part that indicates address, etc. within the
record of the case pertaining to the petition for an adjudication of domestic
relations seeking to provide for the visitation or other contacts with the child
or to change such provision, the court, notwithstanding the provision of Article
47 (3) of the Domestic Relations Case Procedure Act, shall not grant the
permission pertaining to the petition set forth in said paragraph; provided,
however, that this shall not apply when any of the items of Article 62 (4)
applies.
(2) Where there is the part describing or recording the information provided by
the Minister for Foreign Affairs pursuant to the provision of Article 5 (4)
(limited to the part pertaining to item (ii)) within the record of the case
pertaining to the petition for the compulsory execution based on an
authenticated copy of the written adjudication or the record of conciliation to
provide for the visitation or other contacts with the child or to change such
provision, the provisions of Article 62 shall apply mutatis mutandis to the
request of inspection, copying, or reproduction of the record of the case,
issuance of an authenticated copy, transcript, or extract thereof, or issuance of
a certificate of matters concerning said case.
Chapter VI Execution of Judicial Decision on Non-Penal Fine, etc.
Article 150 (1) A judicial decision on a non-penal fine under the provisions of
this Act shall be executed by order of a judge. This order shall have the same
effect as an enforceable title of obligation.63(2) In addition to what is provided for in this Act, the provisions of Part V of the
Non-Contentious Cases Procedures Act (Act No. 51 of 2011) (excluding the
provisions of Article 119 and Article 121 (1) and the part relating to a public
prosecutor in the provisions of Article 120 and Article 122) shall apply mutatis
mutandis to the judicial decision on the non-penal fine.
Chapter VII Miscellaneous Provisions
(Explanation concerning Status of Proceedings)
Article 151 A petitioner of the case seeking the return of child or the Minister
for Foreign Affairs, where six weeks have elapsed from the date on which a
petition for the return of child is filed, may seek explanation concerning the
status of the proceedings of the case from the court before which said case is
pending.
(Handling of Adjudication Case concerning Designation of Person with
Parental Authority, etc.)
Article 152 Where an adjudication case on the designation or modification of a
person with parental authority or the disposition regarding custody of a child
(including the case pertaining to the judicial decision on the ancillary
disposition prescribed in Article 32 (1) of the Personal Status Litigation Act
(Act No. 109 of 2003) and the judicial decision on the designation of a person
with parental authority set forth in paragraph (3) of said Article; the same
shall apply hereinafter in this article) is pending, the court before which said
adjudication case is pending, when it is notified by the Minister for Foreign
Affairs or the court before which the case seeking the return of child is pending
that the child in question has been subject to removal or retention alleged as
wrongful removal or wrongful retention, shall not make a judicial decision on
said adjudication case; provided, however, that, this shall not apply where a
petition for the return of child is not filed within a reasonable period of time or
where the judicial decision to dismiss the petition for the return of child
without prejudice has become final and binding.
(Special Provisions concerning Application of Comprehensive Legal SupportAct)Article 153 With regard to the application of the Comprehensive Legal Support
Act (Act No. 74 of 2004), a person who is a citizen of a Contracting State or
holds his/her habitual residence in a Contracting State (excluding a Japanese
citizen or a person who has his/her domicile in Japan and lawfully resides in
Japan) and who uses the civil court proceedings, etc. (which mean the
proceedings relating to civil cases, domestic relations cases, or administrative64cases pending before the courts of Japan) with respect to the return of child
with regard to a child pertaining to removal or retention, the visitation or
other contacts with a child, or any other matters relating to the application of
the Convention, shall be deemed to be citizens prescribed in Article 30 (1) (ii) of
said Act only with respect to said matters.
Supplementary Provisions
(Effective Date)
Article 1 This Act shall enter into force on the day on which the Convention
takes effect in Japan.
(Transitional Measures)
Article 2 This Act shall not apply to a wrongful removal that has been conducted
before the Act enters into force or to a wrongful retention that has been
commenced before this Act enters into force.
(Partial Revision of Court Act)
Article 3 The Court Act (Act No. 59 of 1947) shall be partially revised as follows;
In Article 61-2 (2), the term "and any other affairs provided for by other
laws" shall be added after the term "pertaining to Judicial Decision for
Incidental Disposition."
(Partial Revision of the Residential Basic Book Act)
Article 4 The Residential Basic Book Act (Act No. 81 of 1967) shall be partially
revised as follows.
(i) The following shall be added at the row following row 41 in Appended Table 1.
(41) - 2 Ministry of
Foreign Affairs
Affairs concerning the assistance in child's return to
foreign state set forth in Article 4(1) of the Act for
Implementation of the Convention on the Civil Aspects
of International Child Abduction (Act No. 48 of 2013),
the assistance in child's return to Japan set forth in
Article 11(1) of said Act, the assistance in visitation or
contact with child in Japan in Article16(1) of said Act or
the assistance in visitation or contact with child in
foreign state in Article 21(1) of said Act, pursuant to
said Act, and prescribed in Ordinance of the Ministry of
Internal Affairs and Communications.
(Partial Revision of the Act on Costs of Civil Procedure)
Article 5 The Act on Costs of Civil Procedure shall be partially revised as
follows;65In Article 13-2 (2), the term "or a domestic relations case" shall be replaced
with ", a domestic relations case or the case relating to the return of child
prescribed in Article 29 of the Act for Implementation of the Convention on the
Civil Aspects of International Child Abduction (Act No. 48 of 2013)."
In the Appended Table 1, Row (15)-2, the term "adjudication or" shall be
replaced with "adjudication," and the term "or the case seeking the return of
child as prescribed in Article 32 (1) of the Act for Implementation of the
Convention on the Civil Aspects of International Child Abduction" shall be
added after the term "conciliation," and the term "said Act" shall be replaced
with "these Acts."
In the Appended Table 1, Row (16) (a), the term "any other petition" shall be
replaced with ", a petition under the provision of Article 122 (1) of the Act for
Implementation of the Convention on the Civil Aspects of International Child
Abduction and any other petition"
In the Appended Table 1, Row (17) (a)-b, the term "or the Act for
Implementation of the Convention on the Civil Aspects of International Child
Abduction" shall be added after the term "the Non-Contentious Case Procedure
Act" and the term "said Act" shall be replaced with "these Acts."
In the Appended Table 1, Row (18), the term "or Article 97 (2) of the
Domestic Relations Case Procedure Act" shall be replaced with ", Article 97 (2)
of the Domestic Relations Case Procedure Act or Article 111 (2) of the Act for
Implementation of the Convention on the Civil Aspects of International Child
Abduction."
In the Appended Table 1, Row (19), the term "or Article 103 (1) of the
Domestic Relations Case Procedure Act" shall be replaced with ", Article 103
(1) of the Domestic Relations Case Procedure Act or Article 119 (1) of the Act
for Implementation of the Convention on the Civil Aspects of International
Child Abduction" and the term "or a petition for modification of the final order
under the provision of Article 117 (1) of said Act" shall be added after the term
"a petition"
(Partial Revision of the Act for Establishment of the Reconstruction Agency)
Article 6 The Act for Establishment of the Reconstruction Agency (Act No. 125 of
2011) shall be partially revised as follows.
(i) The following shall be added to the table of Article 3 (1) of the Supplementary Provisions
Act for Implementation of the
Convention on the Civil
Aspects of International Child
Abduction (Act No. 48 of 2013)
Article 5 (1)(i)Cabinet
Office
Cabinet
Office andtheReconstructi
on Agency66Article 5 (1)(ii)Organs Organs andtheReconstructi
on Agency
(Partial Revision of the Act on Preparation, etc. of Relevant Acts Accompanying
Enforcement of Act on Use, etc. in Administrative Procedures of Numbers to
Identify Specific Individuals)
Article 7 The Act on Preparation, etc. of Relevant Acts Accompanying
Enforcement of Act on Use, etc. in Administrative Procedures of Numbers to
Identify Specific Individuals shall be partially revised as follows.
In the provision within Article 19 adding as follows at the row following row
41 in Appended Table 1 of the Residential Basic Book Act, "row 41 of said
Table" shall be replaced with "row 41-2 of said Table", and "41-2" and "41-3"
shall be replaced with "41-3" and "41-4", respectively.