LONDON – Campaigners in Britain welcome Japan’s plans to sign up for a treaty on settling cross-border child custody disputes but feel new procedures are needed to effectively implement the agreement.
Japan said in May it will join the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which sets out rules for the prompt return of children under 16 to the country of their habitual residence in cases of international divorce.
“It’s excellent Japan is going to sign up because there are lots of cases where children have been taken to Japan, often by their mothers, and the fathers can’t get a return order,” said Anne-Marie Hutcheson, a lawyer who specializes in this field.
But Hutcheson says there needs to be a “political willingness” in Japan to put in place the necessary legal framework to ensure the treaty can be implemented, otherwise “a false sense of security is created.” She said, “I know from a case I dealt with . . . there are no powers to put out a court alert, (to ports to stop someone from leaving) no powers to take passports off people and no powers to get a case urgently before a judge and unless they put those in place, I don’t think Japan can comply with Hague.”
If these procedures are not created, a Japanese mother served with an application under the Hague convention can merely flee the country with her child, she argues. The appeals process also needs to be sped up, Hutcheson says.
The lawyer, who chairs the board of trustees at Reunite International — a British organization that helps parents who have had their children taken overseas by their partner — says the convention is working well in Britain, Australia, the U.S, Canada and in most EU states.
Tokyo is planning to introduce laws to ensure courts can block a return where there is past evidence of physical or psychological harm toward the child or Japanese parent from the overseas-based partner. Courts will also be able to stop a return if there is the possibility the Japanese parent is going to be prosecuted.
Campaigning organizations like Reunite International will be watching how the courts interpret these laws to ensure they are not being abused by mothers.
Under Article 13 of the Hague Convention, courts are already allowed to stop a return if the child is likely to suffer physical or psychological harm on his or her return to the country of habitual residence. And the onus is normally on the mother to provide medical records and witness statements as evidence.
Michael McDermott, of Kent, England, whose two kids were taken to Japan last year by their mother, expects little from the accord.
“I’m happy Japan is signing up but I don’t know how deep they will go with it,” he said. “Not a single child that has been taken to Japan has been returned.”
Shane Clarke, who is currently in a legal battle to get his two children returned from Japan, said, “I’m quite cynical about Japan signing up to it, because the laws already exist to deal with this and they refuse to enforce them. I have got an order from the High Court in London to get my children returned and the Japanese courts ignore this, despite laws saying they should comply with it.
“Japan will pay lip service to the Hague convention and it won’t be enforced. The convention has got its own built-in let-out clause for them in article 13, because standard procedure is for the woman to accuse the left-behind parent of domestic violence. Hague is smoke and mirrors.”