The Kan Cabinet on May 20 endorsed a policy of Japan joining the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which sets procedures for settling cross-border child custody disputes.
The administration hopes to submit related bills and a request for approval of Japan’s joining the convention to the Diet by the end of 2011. If Japan joins the convention, it will not be applied retroactively.
A total of 84 countries, mainly in the Americas and Europe, are parties to the convention, which went into effect in 1983. Among the Group of Eight industrialized countries, Japan and Russia have not joined the convention. The United States and European countries have urged Japan to join, and Prime Minister Naoto Kan announced Japan’s decision during a G8 summit held in Deauville, France, on May 26-27.
The convention is typically applied to cases in which a divorced parent removes his or her child under the age of 16 from his or her country of habitual residence and the left-behind parent requests the child’s return, alleging that he or she has been wrongfully removed.
Under the convention, the left-behind parent makes the request through his or her country’s “central authority” to the central authority of the abductor parent’s country.
The central authority of the abductor parent’s country has a legal obligation to locate the child and take all appropriate measures to obtain the voluntary return of the child. The primary aim of the convention is to secure the prompt return of children wrongfully removed from their country of habitual residence.
Exceptions to this rule include when there is a preponderance of evidence that the left-behind parent had consented to the removal of the child; when there is a preponderance of evidence that the left-behind parent was not exercising custodial rights at the time of removal; or when there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
A court in the abductor parent’s country decides whether the child should be returned if the two parents fail to agree on a voluntary return of the child.
Once it is decided where the child will live, there is another round of court proceedings in that country to determine who has parental authority. As countries have differing systems for determining this, resolution of the issues can be difficult.
Roughly 1,300 requests for the return of children are filed worldwide annually.
According to data released in 2010 by the Netherlands-based convention secretariat, children were returned voluntarily without the involvement of courts in 45 percent of the cases; children were returned on the basis of court orders in 30 percent of the cases; and courts rejected requests for the return of children in 20 percent of the cases.
Referring to the Kan administration’s decision to join the convention, Chief Cabinet Secretary Yukio Edano said, “It is desirable for our country to be consistent with international standards.”
Because the number of international divorces involving Japanese nationals is on the rise, the decision that Japan should join the same legal framework as other countries is understandable.
According to the health and welfare ministry’s population dynamics survey, there were some 4,100 international marriages involving Japanese nationals in 1965. This number topped 10,000 in 1983 and reached a peak of 44,701 in 2006. After that, it started to fall, dropping to 34,393 in 2009.
The number of international divorces involving Japanese nationals topped 10,000 in 1998. It leveled off at around 15,000 from 2002 to 2005, but climbed to 19,404 in 2009.
Many Japanese mothers allege that they had no alternative but to take their children and return to Japan in order to escape domestic violence.
Such allegations have made the Japanese government hesitate to join the convention, but as long as Japan is not a party to the convention, it cannot legally settle these cases or pursue cases in which non-Japanese parents have removed their children from their Japanese homes and left the country.
In working out related domestic bills, the general principle for the government and the Diet should be to give priority to protecting the well-being of the children involved.
Under the outline of the domestic bills, the Foreign Ministry would serve as the central authority for locating children who have been removed wrongfully by one parent and for working toward their voluntary return.
Parents who have removed their children from foreign countries would be able to refuse to return the children if they could prove that they or their children were subjected to domestic violence, or that they faced criminal prosecution in the country where they formerly resided.
Some Japanese parents harbor concerns about Japan joining the convention. They may be worried about the possibility of being separated from their children or about how to establish that they are victims of domestic violence in the event that they have to go to court. The government should consider how to help parents who may become involved in child-custody disputes.
As Mr. Kenji Utsunomiya, head of the Japan Federation of Bar Associations, said, the government should enumerate possible issues and have experts fully discuss them from the viewpoint of protecting the well-being and interests of children. It also should provide necessary information and support to Japanese parents living abroad.