Hague Convention on child abduction may shape Japan’s family law — or vice versa

Proof will come with the implementation of convention


Giant Hello Kitty-emblazoned kudos to Japan for finally signing the Hague Convention on International Child Abduction. Now comes the hard part: actually making it work.

Mistakenly identified by some press accounts as an accomplishment of Prime Minister Shinzo Abe, Japan’s accession is probably more the fruit of prolonged slogging by anonymous public servants. In the fall of 2012 a senior bureaucrat involved in implementing the treaty assured me it would be signed about the time it eventually was. The fact that elections were pending in December and a change of government was a near-certainty did not factor into the prognosis!

Now it is up to these same bureaucrats to actually implement the convention, though much of the diplomatic pressure that may have been a primary motivator in the past is gone (for now). This does not mean they are not trying, and the treaty alone will be meaningless if it is not reflected in domestic law. So the Diet must now turn to the equally important task of passing the bill containing the proposed Implementing Act that was submitted in March. Assuming that the bill is passed as is, it is probably worth reflecting on its contents.

I recently spent a month in Singapore, which joined the Hague Convention in 2010 and implemented it with a short statute that adopted most of the treaty verbatim as domestic law. With 160 articles extending over 110 A4 pages, Japan’s Implementing Act stands in stark contrast in its baroqueness, and suggests a similarly long and complex implementation process. Additional rules of practice will be issued by the Supreme Court after the act is passed.

To be fair, unlike common law jurisdictions (like Singapore) — where courts have always had a broad range of undefined inherent and equitable powers, particularly when it comes to the welfare of children — Japanese courts only have those powers given to them by statute. Insofar as the Hague Convention requires signatories to have special expedited procedures for returning abducted children, these have to be defined in order for Japanese judges to do their jobs.

Thus, much of the Implementing Act’s bulk comes from the fact that it essentially creates an entire procedural code covering not only trials but appeals and enforcement just for return order proceedings under the Hague Convention. One provision in the act (Article 73) specifically empowers the presiding judge in such cases to both allow parties to speak and order them to shut up, illustrating how few inherent powers Japanese judges actually have.

With much of the Act devoted to establishing multiple stages of proceedings, each of which is a potential source of delay or disappointment for a parent seeking return of a child, some might question whether Japan actually intends to engineer a process that could lead to that result. Again, some of this apparent complexity may simply be a factor of how Japanese law is structured. Nonetheless, one might question whether in going so far as to allow a losing party to apply for a new trial (after appeals are exhausted!) on a variety of grounds that apply to other civil trials (and which include “the first trial missed something really important”) is consistent with the convention’s mandate of achieving the prompt return of abducted children.

Even if returns are ordered, enforcement may be an issue. The enforcement process established by the act stops short of allowing the imprisonment of recalcitrant abductors or permitting bailiffs to physically seize children (which is unlikely to be good for them anyway), but it would allow a bailiff to enter private property where the child is located accompanied by a designated “third person” (the requesting parent?), who may be able to do a little bit more.

The act is particularly abstruse on the subject of enforcement, and we may just have to see how (if) it works in practice. Whatever the act does say, however, it should be noted that when the draft form was opened up to public comment, the courts themselves expressed a lack of enthusiasm for any form of “direct” enforcement.

Foreign observers will likely pay close scrutiny to the factors a court can take into account in deciding to refuse a return order based on the limited number of exceptions in the convention.

Although the treaty does not address domestic violence, the act allows a judge to consider the likelihood of the child or the taking parent being subject to harmful physical or verbal behavior (defined in the act as “violence, etc.”) if the child is returned. This is an unsurprising provision given that much of the public debate on the convention focused on the “Japanese woman fleeing from abusive foreign husband” scenario. It can also be seen as an effort to address what some commentators identify as a deficiency in the Hague Convention.

What seems equally problematic, however, is the fact that the act would also allow a court to consider whether there are circumstances rendering it difficult for the taking parent or the parent requesting return to care for the child in the country of origin. Depending on how you read this, it comes very close to allowing a judge to do a type of custody evaluation, despite the fact that the convention clearly states that decisions about returns should not be treated as determinations on the merits of any custody issue.

Needless to say, how these provisions are actually put into practice by judges remains to be seen. These will be judges in the Family Courts of Osaka and Tokyo, the two courts that will have jurisdiction over Hague cases. While the court in the nation’s cosmopolitan capital may be well acquainted with international custody cases, I have heard Kansai lawyers question whether Osaka is up to the task. Again, time will tell, and perhaps many cases will be resolved amicably through mediation.

This is an area where I have both hope and significant concerns. Mediation plays a large role in many Hague jurisdictions and will likely be important in Japan too, possibly even representing a business opportunity for arbitration associations and other providers of dispute resolution services. My hope is that such providers offer panels that include non-Japanese mediators and will thus be more approachable to foreign parents.

My concern comes from the provisions of the Implementation Act allowing judges to submit return cases to court-administered mediation. While this can only be done if both parties consent, judges often have a variety of tools at their disposal to “encourage” agreement. If this results in return cases being funneled into the same sort of mediation already used in domestic custody cases and held before mediators who must be Japanese nationals, it may not be good thing for a non-Japanese parents. This may be particularly disadvantageous since the Act is unclear on if or how a parent who has agreed to mediation can subsequently reactivate return proceedings if the talks seem fruitless.

Much of the foreign pressure to join the Hague Convention was likely driven by the expectation that doing so would result in Japanese courts behaving differently in abduction cases. If you never heard about any pressure on Singapore to ink the treaty, it might be because courts in that country were ordering children returned long before it actually signed — with orders based on determinations of what was best for the child in each case.

While the Implementing Act is complex and detailed, I am not sure that it can be characterized as clearly mandating a change in judicial behavior in terms of ultimate results. For example, despite its great length, it lacks a general statement to the effect that the return of children to their home jurisdiction is the rule rather than the exception — a fairly basic assumption of the Hague Convention.

Furthermore, because it has been socialized in Japan as a treaty that “must” be signed due to foreign pressure rather than because it represents a widely accepted view of what is in the best interests of children (i.e., not being abducted), Japanese courts could conceivably continue using their own internalized views what is best for children, which has always resulted in children remaining in Japan. Again, time will tell, fingers crossed.

On a very basic level, however, implementing the Hague Convention in Japan involves grafting a treaty devoted to the welfare of children onto a domestic legal regime in which it is rarely a consideration. Japanese family law is based primarily on consensual transactions — including divorce and child custody arrangements — in which courts or other authorities play virtually no supervisory role whatsoever. Even in the minority of cases where courts do get involved, their primary goal is to encourage an agreement — any agreement — rather than achieving a result that is in the best interests of the children affected. Joining the convention may thus bring greater attention to some of the deficiencies in the laws that apply in domestic child custody disputes — deficiencies that appear to have been taken into account in drafting the Implementing Act.

The following is one example. In addition to return orders, the Hague Convention may also be used by a parent to exercise rights of access (visitation) between signatory nations. The Implementing Act provides the mechanism for doing so: A foreign parent seeking visitation with a child taken to Japan may apply to the Ministry of Foreign Affairs (MOFA) for assistance. In doing so, the parent must submit (among other things) proof that they are entitled to visitation or access under the laws of the country in which the child had been living before coming to Japan.

Going the other way, a parent in Japan may apply to MOFA for assistance with visitation with a child taken to another country. In dealing with this latter scenario, the act seems to go out of its way to avoid referring to “rights of access under Japanese law.” I am speculating, but there may well have been a desire to avoid any clear reference to access rights under Japanese law, since it is not clear that such things exist in any meaningful sense.

A clear reference to such rights in a Japanese statute would open the door to them being asserted in domestic cases, or at least invite demands for an explanation that such rights be defined for all parents in Japan, not just those seeking relief under the Hague Convention. Indeed, my own view is that a child taken from Japan to a fictional country that had an identical Implementing Act might actually find it impossible to meet the act’s requirement that they prove they are entitled to access under Japanese law. It will thus be interesting to see how this aspect of Japanese law is explained to foreign courts and central authorities.

The act’s use of the term “rights of custody” is also interesting. A key concept in the convention itself, “rights of custody” is defined there in a way that attaches particular importance to the “right to determine the child’s place of residence.” The Implementing Act refers to “rights of custody” but without defining it. Yet Article 821 of Japan’s Civil Code clearly identifies the right to designate a child’s residence as one of the rights that come with parental authority.

However, as many parents have discovered, this is an apparently meaningless right once the other parent has decided to unilaterally designate a different residence by abducting the child. Here again, the drafters may have wished to avoid drawing attention to potential conflicts with domestic law by seeking to limit “rights of custody” to being a concept that only applies in convention cases.

If this was the intent, I doubt it will be successful. Parents of abducted children are understandably very persistent, and the many Japanese parents who will never benefit from Japan joining the convention because their cases are not “international” are watching the implementation process closely and with great interest. A convention regime that treats foreign parents better than Japanese parents is probably untenable, so perhaps the act will lead to changes in domestic family law too. Again, fingers crossed.

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

  • Gordon Graham

    If a child is born and raised in Japan, then is uprooted by his American father to live in America where his Japanese mother finds it difficult to adjust, especially when said father dumps her shortly after moving to America, what is the child’s country of origin? If suing the mother for joint custody in an American court means the mother and child must stay in America where the woman has no family or friends for support wouldn’t it be natural for the mother to return to Japan with her child? In this case does the Hague recognize Japan as the country of origin? I can’t see how say 6 months in America would make it a child’s country of origin…It seems more honest to say 10 years in Japan would make it the country of origin. When an American court decides on joint custody, it means joint custody IN AMERICA, which is unrealistic and unfair in some cases…If a mother returns to her and her child’s country of origin, the mother is labeled a kidnapper. I hope the Hague considers how unfair and ridiculous this is…

    • CRC of Japan

      The Hague Convention is based on returning the child to the country of “habitual residence,” which is not clearly defined. I believe the designated Central Authority in the U.S. would have to make that determination for the situation you are outlining. Here is what Wikipedia says:

      The Hague Conference on Private International Law has deliberately refrained from offering a definition so that the concept may be flexible and adaptable to practical requirements. Thus, habitual residence may be interpreted differently in different Conflict situations. However, the core of the test will tend to be based on evidence of a long-term stay accompanied by other evidence of the individual’s personal and professional life to demonstrate the continuity of the connection between that person and the place of residence. To that extent, the intention of the individual may have some weight.

    • Ron NJ

      Shoe, other foot, etc. At least a foreign parent can remain in America post-divorce, unlike Japan.
      And why all the talk of Japanese women all the time? Remember, over 70% of marriages involving foreign nationals in Japan involve Japanese men and foreign women. If we are to truly take a neutral, non-accusatory stance here, we need to talk about Japanese or foreign *parents*, not “Japanese mothers” and “foreign husbands”. Tainting the debate by using loaded words does no one any good.

    • Guest

      If two children are born and raised outside Japan (in Canada, for example, as were the two children of Murray Wood), then are uprooted by the Japanese mother to live in Japan when the *youngest* of the two children is already seven years old (as the two children of Murray Wood were), what is the children’s country of origin? If the Japanese mother had been living outside Japan for over a decade (as had Ayako Wood), wouldn’t it be *unnatural* for the mother to return to Japan with her children to file for custody of the children (as Ayako Wood did), particularly when the two parents had been raising the children over the previous three years under a joint custody arrangement reached in their habitual residence (that being Canada in the Wood case)? I can’t see how a Japanese court could justifying ignoring the Canadian ruling and instead granting the mother sole custody of the children six months later (as occurred in the Wood case). It seems more honest to say 10 years in Canada would make it the country of origin. When a Japanese court decides on custody of children who have never even lived in Japan, it is unrealistic and unfair. It is not only ridiculous, it is cruel.

    • Guest

      If two children are born and raised outside Japan (in Canada, for example, as were the two children of Murray Wood), then are uprooted by the Japanese mother to live in Japan when the *youngest* of the two children is already seven years old (as the two children of Murray Wood were), what is the children’s country of origin? If the Japanese mother had been living outside Japan for over a decade (as had Ayako Wood), wouldn’t it be *unnatural* for the mother to return to Japan with her children to file for custody of the children (as Ayako Wood did), particularly when the two parents had been raising the children over the previous three years under a joint custody arrangement reached in their habitual residence (that being Canada in the Wood case)? I can’t see how a Japanese court could justifying ignoring the Canadian ruling and instead granting the mother sole custody of the children six months later as occurred in the Wood case). It seems more honest to say 10 years in Canada would make it the country of origin. When a Japanese court encroaches on the custody of children who have never even lived in Japan several years after custody has already been determined by a court in the habitual residence of the parents and children, it is not only ridiculous, it is cruel.

  • Andreas Moser

    Good luck!

  • Henro 88

    My question is, and has always been: since when is the Japanese government so concerned about abusive spouses?

    They dragged their feet for years saying they need to protect Japanese people from abusive foreign spouses, without ever addressing the elephant in the room: plenty of Japanese spouses are abusive, and Japanese cops often do little to nothing about it. I know plenty of people who have been personally affected by J-cops’ indifference to spousal abuse.

    If they are so concerned about spousal abuse, why are they focusing only on hypothetical abuse from foreign spouses? Why is this conversation not followed by a conversation on police indifference to spousal abuse? If the lawmakers were being sincere in their concern, they would say something more like, “What if the foreign spouse is abusive? We already do too little to care for abused spouses in this country.”

    I’ve yet to hear such a mea culpa accompany assertions that foreigners are abusive, so from where I’m standing, this entire conversation is bigoted at its core.

  • Ben

    it seems to me that a glaring hole will exist – exactly what japan will regard as constituting grounds for refusing a child should be returned. remember that in this country ignoring one’s spouse is classed as domestic violence, so it seems completely feasible that anyone will be able to make up any minor excuse to have the behavior rule invoked and children get kept in japan just as they are now to avoid such atrocities as languages other than japanese being spoken in their vicinity.

  • bwprager123

    Repetitive trolling in the comments below this editorial aside, the Japanese have a record and history from which it is not nearly so difficult to discern the intentions of the Japanese government as all that. Judges worldwide are still far too little informed about the mass abduction of children that the Japanese state supports. Those family court judges who have learned or been taught in the course of hearings regarding the withdrawal of passports and travel privileges from Japanese parents are (and should be) forced to act very firmly to prevent international abduction because that is the practice condoned in Japanese family court. No child is safe from Japan’s proffering of a haven for abduction of children and termination of parent child relationships; and the legislation that the Diet has approved to accompany the Hague treaty – a treaty on the “civil”, not the criminal aspects of child abduction, leave us not forget – assures that that is not expected to change. What has been apparent throughout the discussion of how the Hague is to be understood in Japan is that the “reservations” (or “amendments” as some here are calling them) amount to undermining the treaty and the obligations it is designed to infer to return abducted children to their families. Japan will continue to hold custody hearings on abducted children in Japanese courts to determine who Japanese judges (and untrained mediators!!) think is the most fit parent, acting on their gender and ethnic biases as they have always done; this means, clearly, that the outcome of such cases will be unaltered from their current course, and kidnapping children will continue to be masked as “custody determination” in Japan.
    Something MUCH harder and firmer must take place before Japanese people will effectively resist their government’s support of the destruction of families and abuse and violation of children and parents.

    What each and every country can and should do, is to enact laws to completely prevent children from being brought into Japan from outside. No child is safe from this trauma and tragedy; not yet.