Meanwhile, the court may dismiss the claim for return where “the return of a child has a serious risk of being exposed to physical or mental harm or being placed in any other difficult situation” as provided by Article 12(4)3 of the Act even in cases where the right of custody is infringed upon due to unlawful removal of the child (Article 12(4) of the Act).

The grounds for exception to the return of a child under Article 12(4)3 of the Act are to prevent harm to a child’s specific and individual welfare by prompt return of the child, which may result in infringement of the child’s specific and individual welfare. In the interpretation of the foregoing, the rights and interests of the child should be considered prior to the prompt return of either parent

Therefore, a serious risk includes not only cases where there is a concern over the impact of a child’s mental or physical harm due to a direct violence or abuse against the claimant’s child, but also cases where mental harm occurs to the child due to frequent violence against the other parent, and cases where the child’s habitual residence is returned to the country of habitual residence, resulting in heavy pain by being unable to be adequately protected or brought up.

In addition to the above circumstances, the court in receipt of the claim for return shall comprehensively examine all other circumstances, including the degree of danger and repeatedness of the risk, the specific environment for rearing before and after the return of the child, the psychological and physical influence on the child, etc., and determine whether the return is a serious infringement on the child’s welfare rather than the claimant and the other party’s right to rear.

According to the Convention on the Civil side of International Child Desertion (hereinafter “Convention”) and the Act on the Implementation of the Hague Convention on the Implementation of the Child Desertion (hereinafter “Act”), where the right of custody under the Convention has been infringed due to the illegal removal or detention of a child to the Republic of Korea, the court may seek the return of the child (Article 12(1) of the Act), and the court shall promptly deal with the welfare of the child, taking the priority into account (Article 3 of the Act).

Meanwhile, the court may dismiss the claim for return where “the return of a child has a serious risk of being exposed to physical or mental harm or being placed in any other difficult situation” as provided by Article 12(4)3 of the Act even in cases where the right of custody is infringed upon due to unlawful removal of the child (Article 12(4) of the Act).

The grounds for exception to the return of a child under Article 12(4)3 of the Act are to prevent harm to a child’s specific and individual welfare by prompt return of the child, which may result in infringement of the child’s specific and individual welfare. In the interpretation of the foregoing, the rights and interests of the child should be considered prior to the prompt return of either parent

Therefore, a serious risk includes not only cases where there is a concern over the impact of a child’s mental or physical harm due to a direct violence or abuse against the claimant’s child, but also cases where mental harm occurs to the child due to frequent violence against the other parent, and cases where the child’s habitual residence is returned to the country of habitual residence, resulting in heavy pain by being unable to be adequately protected or brought up.

In addition to the above circumstances, the court in receipt of the claim for return shall comprehensively examine all other circumstances, including the degree of danger and repeatedness of the risk, the specific environment for rearing before and after the return of the child, the psychological and physical influence on the child, etc., and determine whether the return is a serious infringement on the child’s welfare rather than the claimant and the other party’s right to rear.

Based on the above legal principles and evidence duly admitted by the court below, the judgment of the court below dismissing the claimant's claim on the ground that there is a serious risk when the principal of the case is returned, taking into account the circumstances such as the claimant's verbal abuse and assault several times, and the principal of the case 1 suffered mental pain by witnessing the above assault, and only the principal of the case 20,00 Japan returned to Japan, such separation is likely to cause psychological pain to the principal of the case. The judgment of the court below is just, and there was no error by misapprehending the legal principles as to the serious risk, etc., or by

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-chul (Presiding Justice)