From discussions with colleagues and consular officials in Japan it appears that no case there has yet determined or analyzed concerning the critical issue of the “grave risk” exception.
The serious concern in this regard is that Article 28 of Japan’s Act for Implementation of the Convention on the Civil Aspects of International Child Abduction expands the scope of the Article 13(b) exception in several significant respects.
Thus, although the Convention provides that “grave risk” is not an absolute defense, but merely provides a court with a right, in the exercise of the court’s discretion, to choose not to return the child to its habitual residence, the Japanese law eliminates that discretion.
The Japanese law also adds three “circumstances” that a court “shall consider” whenever the grave risk defense is asserted. These are:
All in all, it is too soon to determine the extent to which Japan is in compliance with its obligations under the Hague Abduction Convention.