A parent may not establish a child's habitual or permanent residence by unlawfully removing or isolating the child.
A Japanese citizen (mother) petitioned a Russian citizen (father), who held a Japanese residence permit, to return their abducted child (son) to Japan. The minor was illegally relocated to Russia by the father, although the child had previously lived in Japan since birth.
Position of the court of concentrated jurisdiction:
1. The concept of "habitual or permanent residence" is an autonomous concept that is interpreted solely in light of the purposes of the 1980 Hague Convention, and not based on approaches existing in national law. As indicated in paragraph 66 of the Explanatory Report, the concept of "habitual or permanent residence" is one of the established categories of the Hague Conference on Private International Law, which is considered a matter of pure fact, distinct in this respect from permanent registration at the place of residence or domicile.
2. Prior to his/her removal, the child had the following life experience:
→ The child was born in Japan and permanently resided in Japan from the moment of birth until his/her father's removal to the Russian Federation without his/her mother's consent;
→ He/she was registered in the family registration register as a Japanese citizen born to a Japanese citizen. The child's parents permanently resided in Japan before and after the child's birth;
→ The child had been monitored in medical institutions in Japan since birth, attended kindergarten and various leisure centers in Japan until his/her illegal removal to the Russian Federation by his/her father. Japanese was the first language spoken by the child's mother since birth.
3. As stated in the Popular Science Commentary to the 1980 Convention, citing case law, "a parent may not establish the child's habitual or permanent residence by wrongful removal or isolation of the child". The child must be returned to their home country, where their habitual or permanent residence is located, and issues of parental rights and responsibilities (custody rights, or, in Japanese legal terminology, parental authority) must be resolved. The child's dual citizenship (in this case, Russian) and registration at their place of residence in the Russian Federation, which the father obtained after the child's unlawful removal to the Russian Federation, do not indicate that the child has acquired a place of habitual or permanent residence in the Russian Federation or that any country other than Japan can be considered the child's place of habitual or permanent residence.
4. Thus, according to paragraph 34 of the Explanatory Report, all exceptions to the general rule of prompt return of a child must be interpreted restrictively, so as to achieve the objectives of the 1980 Hague Convention and ensure that its fundamental idea is not reduced to empty words.
The Decision of the Kanavinsky District Court of Nizhny Novgorod in case No. 2-4109/2023 dated July 5, 2023.
Position of the court of concentrated jurisdiction:
1. The concept of "habitual or permanent residence" is an autonomous concept that is interpreted solely in light of the purposes of the 1980 Hague Convention, and not based on approaches existing in national law. As indicated in paragraph 66 of the Explanatory Report, the concept of "habitual or permanent residence" is one of the established categories of the Hague Conference on Private International Law, which is considered a matter of pure fact, distinct in this respect from permanent registration at the place of residence or domicile.
2. Prior to his/her removal, the child had the following life experience:
→ The child was born in Japan and permanently resided in Japan from the moment of birth until his/her father's removal to the Russian Federation without his/her mother's consent;
→ He/she was registered in the family registration register as a Japanese citizen born to a Japanese citizen. The child's parents permanently resided in Japan before and after the child's birth;
→ The child had been monitored in medical institutions in Japan since birth, attended kindergarten and various leisure centers in Japan until his/her illegal removal to the Russian Federation by his/her father. Japanese was the first language spoken by the child's mother since birth.
3. As stated in the Popular Science Commentary to the 1980 Convention, citing case law, "a parent may not establish the child's habitual or permanent residence by wrongful removal or isolation of the child". The child must be returned to their home country, where their habitual or permanent residence is located, and issues of parental rights and responsibilities (custody rights, or, in Japanese legal terminology, parental authority) must be resolved. The child's dual citizenship (in this case, Russian) and registration at their place of residence in the Russian Federation, which the father obtained after the child's unlawful removal to the Russian Federation, do not indicate that the child has acquired a place of habitual or permanent residence in the Russian Federation or that any country other than Japan can be considered the child's place of habitual or permanent residence.
4. Thus, according to paragraph 34 of the Explanatory Report, all exceptions to the general rule of prompt return of a child must be interpreted restrictively, so as to achieve the objectives of the 1980 Hague Convention and ensure that its fundamental idea is not reduced to empty words.
The Decision of the Kanavinsky District Court of Nizhny Novgorod in case No. 2-4109/2023 dated July 5, 2023.