2015 Down 6129 Children's Claim for Return

A (1970. Birth, Gender: South)

Nationality Japan

1. B (78******* 2*********))

2. C (52******* 2********))

D (D* N.W. 2007 Birth, Gender: Female

Mar. 28, 2016

1. Each of the claims in this case is dismissed.

2. The cost of trial shall be borne by the claimant.

The other party returns the principal of the case to the claimant.

1. The parties' assertion

A. While the claimant and the other party B are married in Japan, they unilaterally moved the principal of the case to the Republic of Korea and infringed the claimant's right of custody, and the other party C currently raises the principal of the case, the claimant and the other party B jointly claims the return of the principal of the case in accordance with Article 12 of the Hague Act on the Implementation of the Hague Convention on Child Abuse (hereinafter referred to as the "Act") and Article 2 of the Supreme Court Regulations on the Implementation of the Hague Convention on Child Abuse.

B. As to this, the other party asserts that the other party B’s transfer of the principal of this case to the Republic of Korea has obtained the claimant’s permission or implied approval, and even if not, one year has passed since the illegal transfer date of the principal of this case, and the principal of this case is well adapts to the principal of this case while entering the Republic of Korea. Therefore, the claim of this case should not be permitted in light of this point.

2. Determination

A. According to the overall purport of the record and examination of this case, the claimant B and the other party B are about April 18, 2007.

In Japan, the principal of this case was reported to be married and gave birth to the principal of this case, and the other party B entered the Republic of Korea on June 30, 2014 without the consent of the claimant, and the other party C who is de facto mother C is raising the principal of this case. Thus, according to the above facts of recognition, barring any special circumstance, the other party is obligated to return the principal of this case in accordance with Article 12(1) of the Act and Article 2 of the Supreme Court Regulations on the Implementation of the Hague Child Abuse Convention.

B. However, Article 12(4) of the instant Act provides that even in cases where the right of custody under the Convention was violated due to the illegal movement of a child, the court may dismiss the claimant's claim for return in cases where one year has elapsed since the date of the illegal movement of the child, and where there is a fact that the child has already adapted to the new environment," so the court shall examine whether there exists the above reason.

According to the purport of the record and examination of this case, the claimant filed a claim for the return of the principal of this case with the court on June 30, 2015, one year after the principal entered the Republic of Korea as of June 30, 2014, and the other party B reported the birth of the principal of this case in the name of "D" on July 2, 2014, the principal of this case was registered in the name of "D" from October 13, 2014 to February 17, 2015. The principal of this case was enrolled in the kindergarten in **, who was enrolled in the kindergarten in * in the elementary school on March 2, 2015. The principal of this case is going to the school until now at the time of entering the Republic of Korea, and after entering the Republic of Korea, the principal of this case was reported to the other party of this case and the other party of this case was reported to the Republic of Korea.

According to the above facts, even if the principal of the case was illegally moved to the Republic of Korea on June 30, 2014, one year has passed since the principal of the case was deemed to have been adapted to the new environment in the Republic of Korea. Accordingly, it is reasonable to determine that the claimant's claim for return against the principal of the case is not permitted. Thus, the claim of this case against the other party of the claimant is not justified.

3. Conclusion

Thus, the claimant's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Lee Jae-sung