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Hard work begins once Japan signs child-abduction treaty

by Colin P.A. Jones

If my own mailbox is any indicator, the Internet is buzzing as international family lawyers, family rights activists and others share an exciting piece of news: Japan is reportedly planning to join the Hague Convention on the Civil Aspects of International Child Abduction! Perhaps Japan’s days as a haven for international parental child abduction are numbered. Perhaps Japanese courts will stop giving the judicial seal of approval to one parent’s selfish desire to erase the other from a child’s life. Fingers crossed.

Though one could question the timing of the very low-key announcement two months before the Hokkaido G8 Summit the Japanese authorities should be commended for taking what will be a big step forward in the sphere of private international law. The concerted pressure of diplomats from a number of countries (including several G8 nations) who have pushed Japan on this issue for years, and the efforts of activists often parents who have lost any hope of being part of their own children’s lives but have continued to speak up for the benefit of others must also be acknowledged and appreciated.

I must confess to having been skeptical that this would happen so soon (it could happen as early as 2010) if at all. I will be glad ecstatic to be proved wrong. However, I do not plan to crack open any champagne until an abducted child is actually returned home. International treaties, like marriages and childbirth, are events to be celebrated, but all of the hard work comes afterward.

By entering into the convention, Japan will be agreeing with other signatory countries that children wrongfully brought to Japan even by a parent will be promptly returned. One key aspect of the convention is that it limits the role of judges in these decisions. Rather than deciding whether remaining in Japan is in a child’s best interests (which has almost always been the conclusion of Japanese judges in abduction cases), in cases under the convention judges are limited to deciding whether a child has been brought from his or her home country “wrongfully” (in violation of foreign law or court orders, without the consent of the other parent, etc.). If the removal is found to be wrongful, absent exceptional circumstances the judge is supposed to order the child’s return. All this is supposed to happen on an expedited basis in order to prevent a new status quo from developing in the child’s living environment.

Two other aspects of the convention are noteworthy. First, signatory countries are obliged to help locate abducted children. This would be a great improvement over the current situation in Japan, where parents who are able to commence what is likely to be hopelessly futile litigation in Japan’s family courts are actually the lucky ones, since this means they at least know where their children are. Less lucky parents have to try and find their children somewhere in the country, often disadvantaged by barriers of language and culture. The act of trying to find or communicate with your own child may even be deemed a form of stalking.

Second, the convention protects rights of access (or visitation, as it iscalled in some countries). Thus even foreign parents who do not have custody over their children can use the convention to try to preserve contact with children brought to Japan. Courts in some convention countries have been aggressive in interpreting this provision to ensure that even a parent with full custody does not use those rights to frustrate visitation by the other by relocating to a foreign country. Since Japanese courts typically only award visitation if both parents agree, and visitation orders are unenforceable anyway, any improvement in this area would be welcome.

Enforcement of return orders is likely to be the big hurdle for Japan in implementing the convention. Enforcement is an obstacle even in strictly domestic disputes between Japanese parents over child abduction or denial of access. Since family court orders are unenforceable, one wonders what will happen when the first return order is issued by a Japanese judge under the convention. It is, after all, clearly limited to the civil aspects of child abduction it does not require that children be returned by force.

In the U.S. or Canada, whether a case arises under the convention or not, court orders are backed by quasi-criminal sanctions such as contempt. In some states interfering with custody or visitation is itself a criminal offense. Even if it is not, a parent in these countries seeking to enforce access rights or the return of a child can usually call upon the police to help them. In extreme cases intransigent parents resisting enforcement may be arrested or jailed.

In Japan, however, police typically do not get involved in family matters or in the enforcement of court orders in civil matters. The only remedy available to parents with even a whiff of penal sanction involved is habeas corpus (which requires an abducting parent to appear with the child in court), though access to this remedy in disputes between parents has been limited by the Supreme Court.

It seems unlikely that Japan joining theconvention alone would change this basic aspect of the country’s legal system, since it would involve the police (and prosecutors) in a vast new area of law enforcement family disputes when only a tiny fraction of such disputes would involve the Hague Convention. Perhaps some enforcement mechanism limited to convention cases will be developed, though it would be an odd (though not impossible) result if parents and children from abroad got a better deal in the Japanese legal system than those actually living in Japan. Furthermore, bureaucratic imperatives being at least as important as actual law in Japan, it is difficult to imagine how the police and prosecutors could ever find it in their interests to be arresting Japanese parents (more often than not mothers) in order to return Japanese children to foreigners.

Thus, if Japan joins the convention, its implementation may develop in one of three ways. First, it may be implemented as it is in other major countries and abducted children will be returned through its procedures great! Or judges will issue return orders that prove impossible to enforce, leaving things largely as they are now. Perhaps convention cases will be given greater access to habeas corpus, which could be an improvement.

A third possibility, however, is that rather than issuing orders they know are unenforceable (or to avoid being seen as favoring foreigners), judges aggressively take advantage of the exceptions in the convention. One of these is that children do not need to be returned if it would “expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” In some countries this exception is limited to cases where the child would be returned to a war zone, or similar situations. However, if the reasons used for denying visitation are any indicator excessive present-buying, visitation making the custodial parent ill, etc. are any indicator, the bar for applying the psychological harm exception may end up being low.

Under the convention, another reason for refusing to return the child is if “the child objects and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Since the convention does not specify what this age is, it gives courts a high degree of flexibility. Thus Japanese courts could continue to reward parental alienation by placing the burden of deciding on children. Getting children to say “I don’t want to see Daddy/Mommy” seems to work pretty well for getting a court to deny visitation, so getting them to say “I want to stay in Japan with Daddy/Mommy/Grandma” may work in convention cases too.

I feel like a bit of a wet blanket writing this. Make no mistake, it will be great if Japan actually does join the convention. Whatever help Japanese authorities need in understanding and implementing the convention should be offered unstintingly. Anything which improves the situation of children abducted to Japan is to be applauded. And if joining the convention somehow leads to improvements for the many more Japanese children in strictly domestic cases who lose one parent through judicial action (or inaction), it would be almost revolutionary.

Colin P.A. Jones is a professor at Doshisha University Law School. Send comments and story ideas to community@japantimes.co.jp