By Magdalena Osumi
Aug 10, 2013
The Supreme Court has issued a case-by-case manual for court-appointed administrators on how to retrieve children in parental cross-border abduction cases under the Hague Convention, minimizing the use of force to avoid traumatizing the kids, the court’s spokesman said.
The manual, issued June 14, outlines measures the administrators who would be assigned the task of returning children to their place of habitual residence, even by force, should take as Japan considers joining the Hague Convention by the end of next March, the spokesman said Friday.
It says the administrators “should take utmost consideration” to protect the interests of the child.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction mandates procedures for a child abducted by one parent of a failed marriage to be swiftly returned to its country of habitual residence. The convention only applies to children under the age of 16.
The nation has come under fire in recent years over cases in which Japanese parents in estranged marriages overseas have brought children to Japan in defiance of divorce court custody or visitation rights rulings abroad.
Often, the estranged Japanese spouse claims to have fled from an abusive relationship. But the removal of a child from its country of habitual residence has been deemed a violation of that nation’s law, and the abducting parent a fugitive.
Under legislation that cleared the Diet in May, a court-designated officer can forcibly retrieve a child abducted or retained by a parent residing in Japan in defiance of an overseas custody ruling and who refuses to hand over the child.
The manual calls for the officer to attempt to take custody of the child at the home of the abducting parent, in an environment where privacy is thus protected and the child feels safe. Taking a child away in a public place, such as a day care center or on a street, may lead to “unpredictable situations” and traumatize the child, it said.
If the child cries or refuses to be returned to the other parent, the officer should not use force, according to the manual.
Should an officer visit a home to retrieve a child and is told it is not present, the child’s name should be called out and a check made on the presence of the child’s belongings, the manual says.
The officer is authorized to forcibly enter and search a home if there are indications the child is inside.
In the case of an infant, the manual allows the officer, with the parent’s consent, to remove it from the crib. But the officer must not try to forcibly take custody of an infant if the parent is hugging it tightly to prevent such action.
The manual, issued by the Supreme Court’s Civil Affairs Bureau, is based on meetings involving judges and other court officials nationwide in January and February. The gatherings covered past cases of failed domestic marriages where one parent fled with a child from the country of habitual residence without the consent of the other parent.
Court-designated officers have retrieved children in those cases but have not had specific manuals or regulations to follow. The latest document urges such officers in domestic cases to follow its instructions to avoid harming the child in any way.
In past divorce custody cases in Japan, officers apparently tried to retrieve children in public places, resulting in shouting matches.
Fiscal 2010 saw 120 domestic cases processed in which a parent demanded the forcible return of an offspring. The figure was 133 in fiscal 2011 and 131 in fiscal 2012.
Japan is the only Group of Eight member yet to accede to the Hague Convention. If it becomes a signatory, the cases will be handled by a family court in Tokyo or Osaka.