Preparing for the Hague Convention

The Diet is expected to endorse Japan’s joining the Hague Convention on the Civil Aspects of International Child Abduction and to approve a related bill in the current session. It is also expected that Japan, by yearend, will become a member of the convention, which addresses child custody issues in cases involving broken international marriages.

Japanese married to foreigners and living abroad often decide to unilaterally bring their children back to Japan if their marriages break down. Once Japan becomes a member of the convention, the practice of removing such children from their country of habitual residence will no longer be tolerated.

The government must make the necessary arrangements to ensure that the treaty functions properly to uphold the best interests of the children involved.

As of February 2013, 89 countries were members of the Hague abduction convention, which went into force in 1983. Of the Group of Eight developed countries, only Japan is not a member. The DPJ government decided to become a party to the convention and the Abe administration has decided to follow through. In 2011, there were about 26,000 international marriages involving Japanese spouses.

Under the convention, if Japanese parents unilaterally removes their child under the age of 16 from the child’s country of habitual residence, the left-behind parent can ask the designated central authority in Japan within the Foreign Ministry to return the child.

The central authority will be obliged to locate the child, and a family court in Tokyo or Osaka will handle the case.

Before family court proceedings start, the central authority may try to persuade the couple to negotiate a settlement of their differences. Since a settlement is preferable, the government should do its utmost to nudge both parties in this direction to avoid emotionally trying court hearings.

Records from convention member countries show that about half of child abduction cases have been resolved through talks. The records also show that even after legal proceedings have begun, courts decide in about 30 percent of the cases not to return children to their countries of habitual residence.

When a parent who removed a child does not comply with a court order to return him or her, a court execution officer is empowered to separate the child from the Japanese parent and arrange for the return of the child.

The convention prohibits returning children if it is ascertained that grave dangers may await them. Under the bill submitted to the Diet, domestic violence falls in this category. If the foreign parent is accused of domestic violence, the burden of proof will be on the Japanese parent. Therefore, it will be important that Japanese diplomatic missions be ready to introduce Japanese parents who claim to be victims of domestic violence to shelters and attorneys, and to properly advise them on what records they should save to prove their cases, including medical records documenting injuries and evidence that local police were notified during episodes of domestic violence.

  • Mj Marcus

    The Japan Times consistently fails to point out that the provisions of the Hague Convention, like international agreements in other fields, are fully symmetric. Child custody is determined by the legal system of the country of usual residency of the child. Thus if the family lives in Japan, a parent can not take the child overseas and keep him there if the Japanese legal system has given or will give custody to the other parent. Custody will be determined in Japan even if that means the common Japanese arrangement of sole custody by the mother with little or no access by the father.

    Similarly, if the family normally lives outside of Japan child custody is determined by the laws of the country where they reside, not by who surreptitiously moves the child. Thus full symmetry.

    You also fail to mention that Japanese Embassy consular staff will have to be more attentive to Japanese citizens needs overseas. About 13 years ago my Japanese language teacher in Washington DC was in an abusive relationship with her husband and left him taking their child to another place in the local area. Not knowing the US legal system on such issues, she turned to the embassy consular section for a recommendation for getting legal help since she needed both a protective order (to prevent further abuse) and provisions for child support to make the separation practical. She told me that the embassy staff had no interest in helping her and that she should just find a lawyer on her own. Most industrialized countries’ embassies maintain lists of lawyers that are ready to help their citizens on normal financial terms, for example http://japan.usembassy.gov/e/acs/tacs-7113.html .

    She chose a lawyer hastily without any recommendation from the embassy and it turned out to be a bad choice resulting in an unfavorable court decision. She had little option other than to return to the abusive situation. I do not know what happened to her and her child and fear for them to this day. Their country let them down.

    I feel a timely recommendation from the embassy might have saved her and her child from the situation but she was failed by the embassy then.

    I hope that gaimushou has changed its policy and provides timely information to Japanese citizens in need.

  • http://twitter.com/p_mcpike patrick mcpike

    http://www.japantimes.co.jp/opinion/2013/03/12/editorials/preparing-for-the-hague-convention/#.UU9G2KtAQWA

    The Japan Times always seems to omit that Japan ratified a UN Human Rights Treaty in 1994 – the UN Convention on the Rights of the Child (UNCRC). Per the UNCRC, Japan should *already* be helping to prevent International Parental Abduction, and should *already* have agreements in place with other countries to arrange for the return of abducted children:

    UNCRC Article 11:

    1) States Parties shall take measures to combat the illicit transfer and non-return of children abroad. (as noted by unicef this SPECIFICALLY is addressing parental abduction – http://www.unicef.org/crc/files/Protection_list.pdf )

    2) To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.

    In addition, Per Article 9 section 3:

    3) States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

    NOTE: “contrary to the child’s best interests” does NOT mean merely because the abducting parent doesn’t want the child to meet with the non-abducting parent. It is a Human Rights presumption that a child has the RIGHT to have a relationship with both parents:

    As stated in Article 10:

    2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in EXCEPTIONAL circumstances personal relations and direct contacts with both parents.

    Repeat: “save in EXCEPTIONAL circumstances”

    The treaty assumes that parents in the same country already provide the right of access – something that Japan does only on a limited basis, and does not enforce.

    Japan has violated this human rights treaty for nearly 20 years.

    Fundamentally, this is NOT a foreign issue. As also never noted by the Japan Times, this is really an issue of the broken domestic Japanese family law system forcing itself onto foreign parents, and denying children their fundamental human right to know and have a relationship with both parents.

  • Justin Thorne

    This is a very common sense agreement for Japan to sign onto. At its core, the convention is designed to prevent the unilateral removal of a child to another country by one of the child’s parents, except for in specific, special circumstances. It means that parents must actually discuss the future of their child(ren) before permanently separating from each other. This seems pretty sensible.

    Japan is 33 years late to the party, but better late than never.