Japanese daughters’ custody instance of the ‘best interests’ doctrine

A family court of Dhaka has granted Japanese national Nakano Eriko custody of her two daughters at the conclusion of a prolonged judicial proceeding. Citing the welfare or best interests of the children doctrine, the court ruled that the girls' mental, emotional, social, and overall well-being would be better served by remaining with their mother. Before analysing the legal aspects of the case, the circumstances surrounding the case need to be evaluated.

Imran Sharif, a Japanese citizen of Bangladeshi origin, married Japanese national Nakano Eriko in 2008 and the couple had three daughters. Imran picked up his daughters on their way back from school and brought them to Bangladesh after Nakano filed for divorce in January 2021. Eriko sought custody of her two children in a writ petition before the High Court Division (HCD) of Bangladesh in August 2021. The HCD granted custody to Imran, prompting Eriko to seek a stay order from the Appellate Division (AD). Later, the AD passed a judgment stating that the children would be in the mother's custody until the suit in the family court is settled and the father would be allowed to visit them. Even though Imran was allowed to see his daughters at any time, the court decided that it would be in the best interests of the girls from all aspects to continue living with their mother. In the whole ruling, the court stated that children's welfare should reign. Finally, on 16 July 2023, the family court granted Eriko Nakano custody of her two children. As their mother is a physician by profession, according to the court, living with her ensures their safety and well-being.

It may be of interest to note two international treaties in this regard. The Hague Convention on the Civil Aspects of International Child Abduction addresses parental child abduction. The Convention emphasises habitual residence (of a child) and the speedy return of a child wrongfully removed therefrom. Again, the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement, and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children gives authorities in the state of habitual residence exclusive jurisdiction to make decisions regarding the child. The reason underlying the emphasis on habitual residence is welfare of the children. Bangladesh however is party to none of the treaties.

Ideally, guardianship and custody related decisions should involve assessment of inter-parent relationships, possibility of cooperation in parenting, domestic violence, or substance abuse histories. Section 17 of the Guardians and Wards Act, 1890 obliges the court to consider the welfare of the minors as a paramount point in deciding guardianship of a minor. When determining child custody, the courts of Bangladesh tend to prioritise the welfare of children as well. In Ayesha Khanum v Major Shabbir Ahmed (46 DLR), the HCD ruled that the paramount need for the welfare of the child supersedes the personal laws that govern the parties. The recent decision by the family court too is an instance of the 'best interests of child' principle.

The writer is an Assistant Professor, the Department of Law, University of Chittagong.