In a case where a child’s right of custody is infringed upon by unlawful movement or detention into the Republic of Korea, and thus a court seeks the return of the child, whether the case includes “serious risk” under Article 12(4)3 of the Hague Convention on the Implementation of the Hague Convention on the Implementation of the Child Desertion Convention, which stipulates the grounds for exception to the return of the child, causes mental harm to the child due to frequent violence, etc. against one parent who is the other parent, and the case where the child’s return to the country of habitual residence is unable to be properly protected or brought up and suffers from extreme pain (affirmative), and matters to be considered by the court that received the

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 shall be considered prior to the prompt return of either parent’s

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.

Articles 3 and 12 of the Convention on the Civil Effects of International Child Desertions; Articles 3 and 12(1) and 12(4)3 of the Hague Act on the Implementation of the Hague Child Desertion Convention

Claimant (Law Firm Chungcheong, Attorneys Kim private-help et al., Counsel for the plaintiff-appellant)

Other (Law Firm LLC, Attorneys Cho Il-tae, Counsel for the plaintiff-appellant)

Principal 1 et al.

Seoul Family Court Order 2017BB30068 dated October 18, 2017

The reappeal shall be dismissed. The costs of reappeal shall be borne by the appellant.

The grounds of reappeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

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 shall be considered prior to the prompt return of either parent’s

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 victim 1 suffered mental pain by witnessing the above assault, and the victim 20,000 Japan returned to only the principal of the case or 20,000 Japan, and such separation is rather likely to cause psychological pain to the principal of the case. In so determining, the court below did not err by misapprehending the legal principles as to the serious risk, etc.,

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)