Last week, a UK court ordered the return of a child to Japan under the auspices of the Hague Convention. This is thought to be the first such judicial intervention involving Japan. However, it very much remains to be seen whether the Japanese courts, when called upon to adjudicate in one of these disputes as they are bound to be before long, are going to be as prompt and receptive to such an application. The case has not been widely reported as yet – there would, in any event, be reporting restrictions meaning that the names of the people involved and other information that might lead to them being identified cannot be disclosed – but at the time of writing you can read about it here and here.
Below is a letter that I submitted in June 2014 for publication in The Japan Times in response to an article regarding the problem of abductions to North Korea. I checked back to the website a couple of times after submission but could not see that it had been published so I concluded that it had not been. I have only just noticed that it was in fact published and I reproduce the full text below as well as links to the original article and the text of the letter itself on the JT website. The benefit of the delay in my spotting it is that there have been a couple of comments which can now be read as well. I did not ask for my name to be withheld, so I am not sure why this was omitted. I am also not sure whether the letter was published in the paper version of the newspaper, as well as online, but if any reader in Japan happens to have a hard copy, or can get hold of one, please contact me via the contact page. Here is the letter:
ABDUCTIONS BY ANY OTHER NAME
The June 9 Kyodo article “Japan sends list of 470 potential abductees to North Korea” made me think. No one can begin to criticize the Japanese authorities for continuing to take a firm stand on this issue in the face of continued stalling on the part of an evil and untrustworthy state such as North Korea. They are working hard to bring about a solution.
But how would the Japanese authorities handle such a move on the part of Western states with regard to the scores of Western-Japanese children who have been abducted to, or wrongfully retained on, Japanese shores? Even the anecdotal figures relating to such abductions must exceed 470, and the suspicion must be that the actual numbers far exceed this, as there is a great deal of under-reporting, given the near-impossibility of having such children returned to the countries of their former habitual residence. Although Japan, grudgingly and only after coming under pressure from the American administration, recently passed the Hague Convention into law, that instrument lacks retroactive effect and will do nothing to address abduction cases that predate April 1, 2014.
Those Western governments that have parents and children caught up in this should take a leaf out of Japan’s book and compose a list of unresolved pre-Hague cases for the Japanese government to proactively address. That might bring about some political stamina from those Japanese officials who up to now have conspicuously lacked such a quality in those cases not covered by the Hague Convention.
As for the past abductions of Japanese nationals by North Korean agents, it is a sad fact that the only real difference between Japan and North Korea is that the North Korean state positively sanctioned such abductions in the late 1970s and early 1980s. The best that can be said of the Japanese government is that it has positively tolerated such abductions.
NAME WITHHELD BY REQUEST
Source: “Abductions by any other name” (letter), The Japan Times, 11 June 2014
‘Hague reduces child abductions’
The Yomiuri Shimbun
July 5th, 2014
Of four international child custody cases received since Japan joined the Hague Convention on the Civil Aspects of International Child Abduction, only one involves a child who was brought to Japan from overseas, according to the Foreign Ministry.
If the parent in Japan refuses the demand from the overseas parent for the child’s return, and the overseas parent then requests action under the Hague Convention, a Japanese court will make a judgment for the first time over whether a child should be returned to his or her country of original residency.
In the remaining three cases, parents claimed that their children were taken overseas, and the parents in Japan demanded that the children be brought back to Japan from the countries in question via the Japanese Foreign Ministry.
Japan joined the Hague Convention partly at the strong urging of the United States and other countries that reported a remarkable number of cases in which Japanese mothers took their children to Japan without notifying their former husbands and other concerned parties.
Consequently, Japanese experts initially predicted a flood of applications for action under the convention. But so far, there has been only one application from overseas.
Regarding the issue, Kensuke Onuki, a lawyer belonging to the Daini Tokyo Bar Association who is an expert on the convention, said, “For Japan, joining the convention has deterred cases of children being taken to other countries.”
Onuki said he has received many e-mails from Japanese women living in other countries seeking his advice. The women, who wish to divorce their husbands and return to Japan with their children, asked whether their cases are subject to the convention.
Onuki explained to the women that unless they have suffered from domestic violence or other serious problems, taking away their children without their partners’ consent will result in their children being brought back to the countries where they had lived.
After Onuki recommended that the women return to Japan after obtaining the agreement of their husbands, many of the women gave up on their plans to forcibly bring their children to Japan.
The convention also enables parents whose children were taken away without their consent to demand meetings with their children, including in cases that occurred before April, when the convention went into effect.
The Foreign Ministry has received 30 applications for assistance in arranging such meetings. Of them, assistance measures to realize the meetings have begun in 21 cases.
Of the 30 cases, 20 are from parents overseas demanding a meeting with their children in Japan. The highest number among the 20 are from the United States at 13, followed by two from Canada.
In the remaining 10 cases, parents in Japan are demanding meetings with their children in other countries. Of the 10, four cases are demands to the United States, followed by three to Russia.
The Hague Convention stipulates that if a parent takes their child under 16 overseas without the partner’s consent, the child, in principle, must be brought back to the country where he or she lived.
Such cases that have occurred in Japan since April, when the convention went into effect in the nation, are subject to the stipulation.
There is also a system in which central government entities of the signatory countries offer such assistance as searching for the whereabouts of the children and providing lawyer referrals to parents whose children have been taken away.
I came across this article by chance this afternoon. It concerns Eileen Clark, a US citizen who, said to have been faced with ill-treatment by her husband, came to the UK well over a decade ago with their 3 children; international child abduction proceedings were recently issued against her in the US and her extradition there was accordingly sought. The US proceedings are criminal ones – a civil action under the Hague Convention would have had to have been brought sooner.
The article draws quite heavily on this news release from Liberty, the well known ‘human rights’ organisation that brought this (further) High Court challenge against Ms Clark’s extradition. Two judges instead of the usual one judge were charged with deciding whether to grant Ms Clark permission to proceed with her judicial review; such permission would only be granted in the event that she had an ‘arguable’ claim. Ms Clark’s application for judicial review was refused in no uncertain terms and there is no suggestion that any attempt was made to appeal that decision to the Court of Appeal.
The most recent judgment can be read here; the hearing was conducted in May 2014, exactly 30 months to the day since my own son was taken. The latest and as it turned out final decision – Ms Clark boarded a plane at Heathrow yesterday – was in effect a re-run of earlier High Court proceedings in 2012, the outcome of which were also unfavourable to Ms Clark. This time, it was argued that the Home Office was wrong to maintain the decision to extradite in the light of a diagnosis of post traumatic stress disorder – attributable to claimed domestic abuse in the 1990s – that post-dates the earlier High Court proceedings. On the basis of this new evidence, it was argued by those representing Ms Clark that it was also open to her to re-open arguments previously rejected in terms of resisting her extradition more generally (those representing the Home Office surprisingly accepted that it was open to her to do so even though there was no satisfactory explanation as to why the diagnosis was not made sooner and, as such, why evidence of it was not made available at the earlier proceedings). These re-opened arguments centred on extradition being said to be an abuse of process on the part of the US authorities because of the delay in pursuing the matter.
The BBC here is not known for its impartiality at the best of times, even though it has a statutory obligation be remain impartial. It is often accused of favouring the political left in the UK and has more recently been accused of favouring the pro-union side in the upcoming Scottish independence referendum. The BBC’s coverage of this matter, as per the article flagged up at the beginning of this post, might be said to be a case in point. No doubt the prospect of extradition and criminal proceedings in the US will be a frightening and daunting prospect for Ms Clark; it would be for most people. Domestic abuse cannot, of course, be tolerated – although there is no suggestion that such abuse (often alleged in family cases) has been established in a criminal or civil court. Irrespective of this, however, child abduction cannot be tolerated either; the BBC article largely glosses over what Ms Clark stands accused of. She is made out to be the only victim; she might well be a victim but is not the only one.
The ages of the children in this case – at least one of them is now an adult and the others are almost adults – and the fact that their father and his family have already been deprived of any chance of sharing their childhood with them as their formative years have been spent in the UK actually mean that there is a greater public interest in prosecution as the damage cannot now be put right, it being too late to do so. It would seem that the children’s lives are now in the UK and they will no doubt soon be living independently if they are not already doing so. The passage of time aggravates the seriousness of what Ms Clark is to be tried for in the US. It is therefore arguably right that she accounts for her actions, all the more given the passage of time.
In relation to whether the passage of time, leaving aside these points, means that it can still be said that it is not in the public interest for Ms Clark to be extradited, as argued for her in the High Court, this view cannot not right in my opinion. First and foremost, let it not be forgotten that Ms Clark is an American national so there can be little rational objection to her being tried in the country of her own nationality. There have been a number of high profile and largely unsuccessful challenges in English courts against extradition to the US over the last few years; the common thread that seems to run through them is that UK-US extradition procedures are said to be skewed in favour of the US authorities – but these cases concerned Britons not Americans. Second of all, it is clear from the High Court judgment that Ms Clark was at least in part responsible for this delay: refer to paragraph 29 of the judgment. Third of all, there must be a public interest in discouraging this sort of conduct. In this regard, it is reassuring to see that the High Court stamped upon the argument, apparently and worrying deployed on her behalf, that what she stands accused of his somehow ‘trivial’ in nature. Paragraph 26 of the judgment reads as follows:
As to the matters relied on beyond the new diagnosis, we do not consider that the argument based on the asserted triviality of the offence carries any real weight. The removal of children from another jurisdiction without parental consent is a serious matter and recognised as such by our courts and foreign courts. The need for international cooperation is particularly strong. In this case the impact of the admitted removal of three children from the USA in 1998 continued over a number of years until each of them entered adulthood.
In the United States, the law is capable of catching up with those accused of international child abduction. Much more needs to be done there and elsewhere, however.