May 25, 2013
The 1980 Hague Convention on the Civil Aspects of International Child Abduction sets out the rules and procedures for the prompt return to the country of habitual residence of children under age 16 taken or retained by one parent, if requested by the other.
Japan aims to join the pact, which currently has 89 signatory nations, by the end of the year after completing all necessary domestic procedures. The country has been accused of being a “safe haven” for such child abductions and will be the last Group of Eight member to accede to the treaty.
The Foreign Ministry will serve as the central authority in charge of locating children who have been taken from their country of residence by a Japanese parent and encouraging the parties involved to settle the dispute through consultations. If that fails, family courts in Tokyo and Osaka will rule on the matter.
According to 2008 figures compiled by the Hague Conference on Private International Law, judicial decisions were made on 44 percent of all requests for the return of children filed by citizens of Hague pact signatories, with courts ordering they be returned in 27 percent of the incidents and granting visitation rights in 2 percent. Their return was rejected in 15 percent of the cases.
Japan will make exceptions in the return of children if abuse or domestic violence is feared. The treaty in principle calls for returns that ensure the child’s best interests and is not retroactive, only entering into effect after a country formally becomes a signatory.
In the past, courts in Hague treaty member states have turned down requests for the return of children when they or the abducting parent has fled from an abusive spouse or in cases where a parent could face criminal prosecution in his or her country of habitual residence, Foreign Ministry officials said.
For Japanese parents who have had a child taken overseas by their spouse, Japan’s accession to the Hague accord will have a positive effect, increasing their chances of being reunited with their children, according to experts.
Mikiko Otani, a lawyer and member of a government panel on the Hague treaty, said Japan “needs to understand the perception gap” between it and many other countries on the parent-child relationship following divorce or separation, so as to offer appropriate assistance to those involved in international child abductions.
Japan adopts the sole custody system, under which courts tend to appoint mothers as the sole custodian after divorce. It is not unusual for children to stop seeing their fathers after the parents break up.
Many Hague signatory countries adopt a system of joint custody and parenting, enabling children to have regular access to both parents after divorce or separation.
“The Hague treaty only stipulates procedures to help settle disputes, and Japan does not need to change its sole custody system,” but its society “should at least understand” the different norms on parent-child relationships in other Hague signatories, Otani said.
“Unless supporters are well versed in cases to be treated under the Hague pact, (as well as) judicial processes and family law in other signatories, they cannot offer proper advice,” Otani said. “As Japan has yet to join, it does not have enough manpower at present” to assist those involved in cross-border parental child abductions.
“Decisions to return the child or reject the request will not end the problem. Continued support for families torn apart internationally will be needed following those decisions,” she said.
Otani also said the government needs to raise awareness among Japanese married to foreigners, as well as Japanese couples living abroad, to prevent future incidents. “Not only international couples, but Japanese couples overseas could be involved in cross-border disputes covered by the Hague Convention if one parent takes their child to Japan without the permission of the other,” she said.
Before couples separate, they should be aware of the risk of being criminally prosecuted over parental abductions since the divorce rate is continuing to rise in many countries, she said. According to government statistics, 17,832 Japanese and international couples involving a Japanese partner were divorced in 2011.
John Gomez, chairman of Kizuna Child-Parent Reunion, an organization supporting parents separated from their children, said “social education” is needed in Japan to ensure the Hague treaty will function properly.
“From the Western point of view, for most people, abducting a child is completely illegal, shocking, damaging, and most people would never even think of it, let alone do it,” Gomez said. “But as we can see, it’s a very common mindset in Japanese society.”
“People typically take children if they’re afraid they will lose custody,” said an American father who is separated from his child and is seeking joint custody and visitation rights in Japan. He also urged people to understand children’s right to have access to both parents and to “recognize the damage that is caused when the relationship (to one parent) is severed.”
Takao Tanase, a lawyer versed in family law and a professor at Chuo University’s law school, aired concerns over “serious discrepancies between international and domestic standards,” saying that parental abductions are “condoned” in Japan to some degree and authorities are reluctant to intervene in family matters.
If the international community views Japan as not complying with the spirit of the Hague treaty after joining, the country will come under heavy pressure from other signatories to change its viewpoint, Tanase warned.
Source: Japan Times, 25 May 2013