Opinion Concerning the Review of the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction
February 17, 2017
Japan Federation of Bar Associations
The Japan Federation of Bar Associations (JFBA) prepared its “Opinion Concerning the Review of the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction” (the “Opinion”) on February 17, 2017, and submitted it to the Justice Ministry's Civil Affairs Bureau and the Foreign Ministry's Consular Affairs Bureau on February 28, 2017.
Summary of the Opinion
The Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (the “Act”) should be reviewed in regard to at least the following provisions of compulsory execution:
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The provision that mandates the indirect compulsory execution as a prerequisite for other measures of returning child should be revised (＊)
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The provision, which is made under the so-called principle of simultaneous presence, that allows the release of the child from the care of the obligor only when the child is with the obligor, should be revised to allow exceptions more flexibly on a case-by-case basis (＊＊).
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The provisions that in principle confine the place of execution to the residence of the obligor should be revised to allow exceptions more flexibly on a case-by-case basis (＊＊＊).
＊Article 136 of the Act:
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).
＊＊Article 140 (3) of the Act:
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.
＊＊＊Article 140 (1) and (2) of the Act:
(1) A court execution officer may carry out the following acts, in addition 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.
