The Hague Convention entered into force in Japan today. You can read a Japan Times article about it here. In an unsuccessful attempt to try and raise some awareness of the fact that this development might not actually result in a huge amount of change, at least in the short-term, I put together some words on the issue yesterday. I sent these words to the letters page of a national newspaper in the UK but, sadly, they were not published. This is what I wrote:
The Hague Convention on the Civil Aspects of International Child Abduction, negotiated in 1980, finally attains the force of law in Japan tomorrow; Japan is the last G8 country to sign, thanks in large part to pressure from the United States. The Convention provides for the return of children wrongfully removed to, or retained in, a signatory state, by seeking to restore the situation that existed prior to the removal in the country of former habitual residence. It is the norm in Japan for one parent, usually but not always the mother, to have sole custody of children when a relationship fails and for the other parent to see nothing of those children; “abduction” is therefore a problem within Japan, as well as an issue of private international law as Japan is in effect exporting (or, when it comes to it, importing) its societal norms. Quite apart from Japan’s unforgivable delay on this issue, two very real concerns will survive the coming into force of the Hague Convention.
First, the enactment of this instrument will do nothing to assist those children who have already been removed; it is for this reason that the delay in enacting the Convention is unforgivable; generations of children will not benefit. Law does not, in general, have retroactive effect: if there was ever a candidate for a law to be so enacted, this must surely be it however. The situation is compounded by the fact that, outwardly at least, the Foreign Office regard Japan as having joined the Convention as the end of the matter with the result that the minimal diplomatic pressure that has, until now, been applied will fall away: the Foreign Office is far more vocal in condemning Japan’s use of the death penalty – something which rarely, if ever, impacts upon British interests. In conspicuous contrast, in her confirmation testimony to the Senate Foreign Relations Committee (now) Ambassador Caroline Kennedy spoke of the need for Japan to apply the “spirit” of the Convention to cases not covered by it.
Secondly, societal norms do not change overnight. The Japanese family courts, who will ultimately adjudicate where there is a dispute, are stubbornly non-interventionist. The courts preserve the status quo, but not in the way envisaged by the Convention, by confirming the physical (if not lawful) custody on the part of the Japanese parent; the courts acquiesce in wrongdoing. Rather than seeking to return wrongly removed children promptly, and it was correcting this mischief that is why the Convention was agreed in the first place, the concern is that the courts will simply dismiss applications for return orders on spurious grounds; the enabling legislation passed by the Japanese Diet places great emphasis on “exceptions” to the return of a removed child to a far greater degree than the provisions of the Convention itself. International instruments need to be able to evolve over time in order to keep up with changes in (international) society; that is the role of the courts in interpreting such provisions. The concern is that Japan will fail to enforce the Convention in the manner envisaged by its framers and will do even less to keep it relevant and effective in a changing society. The criminal law – the removal of a child with parental/judicial consent is a crime – offers no answer as there is no effective extradition mechanism between Japan and the UK and an unwillingness on the part of the CPS to deploy these provisions. In any event, such procedures would not bring about the return of the child and would only heighten the harm done to that child.
Japan’s decision to enact the Hague Convention is welcome in that it will end the legal cover provided to Japanese parents removing children to Japan. The Convention does represent an important deterrent. However, the Japanese government and the Foreign Office need to acknowledge that the concerns identified above are as unacceptable as Japan’s delay in signing the Convention in the first place. The Convention has come too late to help a great many children who will grow up without knowing the overseas parent; it is to be hoped that its enactment might be the beginning of a process by which future generations of children are afforded a proper level of protection in a world in which the incidence of cross-border relationships is only going to grow.