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Japan: Supreme Court Rules Even If No Blood Tie, Parent/Child Relationship Remains

(Aug. 15, 2014) Japan’s Supreme Court decided on July 17, 2014, in two similar cases, that the legal father-child relationship between a father and a child born while the mother remained in a marriage with the father cannot be denied in cases where the legal father turns out not to be the child’s biological father. (Heisei 25 (Ju) 233 (S. Ct., July 17, 2014) & Heisei 24 (Ju) 1402 (S. Ct., July 17, 2014).)

The Facts

In the two cases, the wives (mothers) in each of the marriages committed adultery and bore children while the marriages were functioning. In one case, it was not clear who the biological father was at the time of the child’s birth. In the other case, the mother assumed that the father of the child was her lover. In both cases, the offspring were reported as being the husbands’ children. The husbands, who were the legal fathers, took care of the children as their own for a couple of years until the wives/mothers left the husbands and joined the lovers/biological fathers of the children. The biological fathers are now taking care of the children. One couple divorced; the other couple is still legally married even though a divorce suit was filed. (Id.)

The mothers tested the children’s DNA, and the results showed that the children’s biological fathers are not their legal fathers but rather the men who are currently taking care of them. The mothers filed lawsuits, as legal representatives of the children, against the legal fathers, seeking confirmation that the father-child relationship does not exist. (Id.)

The Law

Article 772 of the Civil Code (Act No. 89 of 1896) prescribes that a child conceived during marriage is presumed to be the husband’s child. The Civil Code allows the father/husband to file a lawsuit against the child to invalidate this presumption within one year of the child’s birth. (Civil Code, arts. 774-778.) By these provisions, courts and legal scholars have understood that a biological relationship does not necessarily determine the father-child relationship; if the biological tie were the crucial element, a lawsuit should be allowed without a time limit and by anyone concerned. There are many reasons behind the presumption system. One of them is to make the decision on the child’s legal father early in the child’s life, in order to stabilize the child’s legal status. (Noriko Mizuno, Children, in KIHON HO KOMENTARU: SHINZOKU [BASIC LAW COMMENTARY: FAMILY] 125-128 (Ichiro Shimazu & Masaki Matsukawa eds. 4th ed. 2001).)

The courts have created one exception to the abovementioned presumption rule. If a child was conceived while the parents were separated or lived apart and, therefore, there was no possibility that the wife conceived the husband’s child, the presumption can be invalidated by a lawsuit seeking confirmation of the non-existence of the father-child relationship. (Id.)

The Court’s Rulings

The courts of first and second instance in the two cases added a new exception to the presumption rule: when it is obvious that the child is not the legal father’s biological child and when the biological father and the mother have reared the child and the child enjoys healthy development under their care, the presumption can be invalidated. (Heisei 25 (Ju) 233 & Heisei 24 (Ju) 1402, supra.)

The Supreme Court did not agree with the lower courts’ rulings. It stated that the situation that the lower courts found to constitute an exception does not necessarily always erase the need to establish the legal father-child relationship early and make it stable. Therefore, the Court held, it cannot be concluded that such a situation invalidates the presumption. The Court dismissed the mothers’ claims. (Id.)

Two of the five Justices opposed the decision and another two wrote supplemental opinions. Justice Seishi Kanetsuki wrote, among other things, that he respects the opinion that stability is the most important factor for the law to consider in deciding the family relationship and that making an interpretation of a family relationship law apart from the literal provisions should be avoided. However, the most important thing in judgments by courts, he asserted, is the appropriateness of the solution for the specific case. In cases such as the ones at hand, he stated, “I do not believe it is better to make the general abstract legal principle a priority.” (Heisei 25 (Ju) 233, at 15.)

Justice Ryuko Sakurai joined the majority opinion, but added her own opinion. She wrote that giving more weight to the biological father-child relationship makes sense, but then the interpretation of law would be distinct from article 722 taken literally, and such an interpretation would be inconsistent with other relevant provisions of law. She also wrote that as society has changed and science advanced, new issues have arisen in connection with parent-child relationships that are matters of fundamental public concern, and therefore instead of the courts solving such issues case by case, the legislators should re-examine the issue. (Id. at 6.)