As most parents know, there is nothing quite so life changing as having children. Imagine the pain a parent feels, then, if their children are taken from them. Now imagine the shock a parent feels if the person who abducted their children was their own spouse, a trusted partner who fled the country and disappeared — never to be heard from again.
This, unfortunately, is the reality for many left-behind parents around the world. They then spend years trying to go through official channels in an attempt to get their children returned, typically without making much progress.
In 1980, a glimmer of hope for such parents came in the form of the Hague Convention on the Civil Aspects of International Child Abduction, which sets out rules and procedures for the prompt return to the country of habitual residence of children under 16 who were wrongfully abducted by one parent, if requested by the other parent.
Japan held off signing the treaty in the face of international pressure until 2013, when the Diet approved accession to the convention. Hague Convention legislation finally came into force on April 1 last year.
The Foreign Ministry — the central agency in charge of Hague pact cases — prepared long and hard for the launch. The 20-member department in the ministry responsible for handling any Hague pact applications consists of lawyers, a judge and social workers with expertise in domestic violence and child psychology.
Tatsuro Hayashi, principal deputy director of the Hague Convention Division, says it’s important for employees in the department to have a wide range of knowledge because of the sheer complexity of Hague pact cases.
“Each case is very different,” Hayashi says. “Some cases also involve domestic violence and so it is the duty of the government to ensure that we have a solid foundation to deal with them as a member of the Hague Convention.”
A total of 117 Hague Convention-related cases from 27 countries have been filed with the Ministry of Foreign Affairs as of April 16. Twenty-seven applications have called for the return of children from Japan, while 19 applications have requested the return of children from overseas. To date, 10 cases have now been resolved: five cases involve children who have been sent overseas and five cases involve children who have been returned. Earlier this month, Japan for the first time executed a court order return of a child, who was sent back to Sri Lanka.
However, these cases only account for abductions that took place after the convention took effect. The treaty is not retroactive and for parents whose children were abducted prior to April 1, 2014, they can only apply for access and visitation rights through the framework, not demand that children are returned.
To date, 71 access applications have been submitted. Fifty-six applications involve children in Japan while 15 involve children abroad.
Hayashi notes that two left-behind parents who filed for access have been successful in reuniting with their children. Five have regained contact with their children via Skype; and one had the child returned due to an overseas court ruling.
Hayashi says the Foreign Ministry has successfully located all children involved in Hague pact access cases in Japan.
Even if the ministry finds them, however, there’s no guarantee it is able to reopen the lines of communication between the separated spouses.
“Access cases are not as comparatively simple as return cases,” Hayashi says. “(Even if it’s an access issue), there are cases where the parent who is accused of abducting the child wants nothing to do with the left-behind parent. We cannot force parents who are accused of abducting their children to grant access, but we will continue to negotiate tenaciously.”
Caught in the middle
For parents who have had a child abducted, battles over access rights can seemingly take an eternity to resolve. Some will never be concluded.
Left-behind father Henrik Teton is a parent who is desperate to reunite with his son. The Canadian father says his son was abducted by his Japanese wife in January 2013 while they were staying at a hotel in Yokohama. Apart from a solitary photograph he was given as part of his attempts to arrange access, Teton hasn’t seen his 4-year-old son since.
When his wife and son first vanished, Teton recalls, he didn’t know if they were dead or alive. Police in Canada eventually informed Teton in June later that same year that they were both safe in Japan, adding that his wife wanted nothing to do with him. “How could she do this to me?” Teton says. “How could anyone do this to any other person? It really is a human rights tragedy in Japan … and, seen from a Western point of view, it is also child abuse.”
Teton’s case occurred prior to the Hague Convention’s implementation on April 1, 2014, and so he was forced to apply for access to his son through the central authority in Tokyo. He filed for action under the Hague treaty, attempted (but ultimately failed) to set up mediation with his wife and submitted a petition with the Tokyo District Court that sought immediate access as well as the right to see him in Japan and Canada. As a result of his efforts, Teton received a photograph of his son and an offer of supervised visits two to three times a year in Japan. He has since withdrawn his case.
“(Being handed) a picture and seeing your own child two to three times a year is considered a joke in the West,” Teton says. “We all probably had some hope that the Hague Convention would make a difference but it certainly looks like it will not.”
Emiko Miki, a family lawyer who is representing Teton’s spouse, acknowledges that his wife did leave the hotel with their son. However, Miki says, Teton’s wife left with the intention of getting a divorce from her husband, stressing that it wasn’t an abduction that falls within Hague Convention jurisdiction. Miki says Teton’s wife sought protection at the nearest police station to the hotel in Yokohama and was placed in a public facility.
Teton rejects any allegations of domestic violence.
And although Miki acknowledges that Teton wasn’t physically violent, his wife claims he was abusive in other ways. She says Teton’s wife “did this for her son. She felt that being with (Teton) was not good for him.”
Miki says Teton’s wife is willing to let her husband visit their son in Japan but, instead, he insists that their child is returned to Canada. However, Canadian authorities have issued an arrest warrant for Teton’s wife and she would be detained on the spot if she ever visited the North American nation again.
Miki claims Teton has yet to suggest any realistic alternatives and refuses to show any signs of compromise. Instead of trying to resolve this family issue, it seems (Teton) is trying to punish his wife for his perceived injustices,” Miki says. “He doesn’t seem to understand that he is just making the problem harder to resolve.”
Complex by definition
On March 25, a U.S. Congress subcommittee convened to discuss international child abductions by parents. During the meeting, New Jersey Rep. Christopher Smith didn’t hide his frustrations against Japan. According to an estimate by nonprofit organization Bring Abducted Children Home, 400 children had been abducted to Japan since 1994 — a situation that Smith slammed as being “unconscionable.”
“Since they have signed the Hague, Japan’s efforts have been breathtakingly unresponsive, especially for abductions that occurred prior to their ratification of the Hague Convention,” Smith said. “The status quo is simply unacceptable.”
Smith highlighted a new law that was passed in the U.S. last summer to enable the president to impose sanctions on countries that fail to take measures to resolve wrongful international abductions by parents.
Called the Sean and David Goldman International Child Abduction Prevention and Return Act of 2014, the legislation gives the State Department the authority to use “increasingly forceful measures” against any country that ignores requests to return an American child who has been taken unlawfully out of the United States. Sanctions include such measures as public condemnation, the cancellation of a bilateral visit, or the withdrawal, limitation or suspension of security assistance.
Steven Maloney, consul general of the U.S. Embassy in Japan, agrees that not enough has been done for left-behind parents whose cases happened before the ratification of the treaty.
“Technically, it’s possible for any country (Hague pact signatory or otherwise) … to have the law applied to them, but we are going to do our best to make sure that Japan is not in that category, and that Japan and (the U.S.) make progress so that the sanctions of the law will not apply to them,” Maloney says.
Maloney suggests that the government work harder to encourage long-distance contact between the left-behind parents and their children in Japan, either on Skype or by telephone, or in face-to-face meetings outside the home.
“We believe that a child has the right to access both parents, not when they are 21 but now,” Maloney says.
“I’m sure that members of Congress, members of this embassy and the Japanese government all have the same goal in that respect: We all want Japan to be successful and to handle these Hague Convention cases in the same way as the other longer-standing members of the convention do.”
But Mikiko Otani, a lawyer who is an expert on the Hague Convention and international child abductions by parents, says it is not unusual for a country to take a long time to settle access cases.
Access cases are complex issues by definition, Otani says, pointing to the prevalence of domestic violence that typically arises and the fact that, in some cases, many years have passed since the abduction.
“It is wrong to think that just because Japan joined the Hague Treaty, all cases will be resolved quickly,” she says.
Indeed, domestic violence was one of the key factors that put Japan off from joining the treaty in the first place. Domestic lawmakers were concerned that Japanese mothers who were fleeing abusive environments could be forced to return if the country signed the convention. Proponents, however, pointed to Article 13 of the pact, which stipulates that a state or court can decide not to return a child if it is in grave danger of being sent back to “an intolerable situation.”
To allay such fears, Japan tried to codify some circumstances that may fall within the definition of such a situation in the treaty’s accompanying implementation legislation, stipulating that the courts must consider not just violence against the child but also against the parent who abducts them. The courts are obliged to consider whether the abuse toward the parents who abduct their children could psychologically harm them upon being returned to their habitual residence.
Otani believes it is too soon to evaluate how Japan is faring with the convention and, ultimately, the success of its application depends on how the courts will rule when determining the more controversial and difficult cases.
According to the Supreme Court, a total of 16 lawsuits have been filed with domestic family courts to seek the return of children abducted by one parent since April 1, 2014. Twelve suits were lodged with the Tokyo Family Court and four with the Osaka Family Court. Of the total, 11 cases have already been settled, with the family courts ordering the return of children to overseas in nine cases and turning down the request in one case. The remaining one was settled through mediation efforts.
Otani expresses concern that the spotlight on such cases may make it more difficult for Japanese courts to reject a request for a return — even if there is a legitimate reason.
“Each trial is really based on each case, each situation,” Otani says. “Right now, however, the international community doesn’t trust Japan and even if it is in line with international standards and makes the right decision, I am afraid it will be the target of criticism. Japan is in a difficult situation right now.”
Teton has been traveling back and forth between Canada and Japan in the hope of getting his son back. He says he would never prevent his wife from seeing their son and believes that the best situation would be a split-custody arrangement in which their son spent half of the time with him and half of the time with his wife.
“This has been the most difficult thing in my life and the very worst thing for anyone to go through,” Teton says. “I struggle with difficult emotions and pain — it is never going to go away. I still wake up every morning with the same sadness and the same disbelief that this happened.”
Until his case is resolved, Teton — and probably many parents like him — feels he is a long way from closure.
Children hit hardest in abduction cases
Alison Shalaby’s daughter was only 7 years old when she was abducted and taken to Egypt by her father in 1991. Her daughter was returned three months later but is still haunted by the experience.
Shalaby’s daughter told her she blamed both her parents for ruining her life, and that the abduction took place because of the failed relationship between Shalaby and her ex-husband.
“It is the children who suffer,” Shalaby says. “(My daughter) is no different to any of the children who are caught up in these cases. They all suffer long-term effects of it unless it is dealt by the courts very, very quickly.”
Shalaby is the chief executive officer of Reunite International, an international child abduction charity group. It has been operating for decades, offering support for parents whose children have been abducted by their spouses and taken overseas. The group also specializes in international mediation. Now that Japan has ratified the 1980 Hague Convention on the Civil Aspects of International Child Abduction, Reunite International members have been to Japan to train lawyers and government officials on mediation to resolve Hague pact cases out of court.
“It’s always best if the parents can step away from the courtroom and reach an agreement themselves,” Shalaby says.
Even if the cases go before the courts, it’s still important to come to a decision quickly when ruling on Hague pact abduction cases in order to negate any long-term negative effects on the children involved, says Peter Singer, a retired British High Court judge who specializes in family law and dealt with Hague cases throughout his career.
The best way for courts to resolve these issues is “to act rapidly and unemotionally, and not get involved in trying to decide which parent is the best parent but to send the child back so that argument can happen in the place where the child has his or her roots,” says Singer, who currently works as a family dispute resolution facilitator and continues working as a part-time judge.
In cases where domestic violence is cited as a reason for the abduction, Singer says each court has to rule on what constitutes an “intolerable situation” under Article 13 of the convention. However, he says there are times when a judge would decide to return a child even if he or she came from an abusive environment if the country of origin had a legal framework in place to prevent domestic violence.
According to the International Child Abduction and Contact Unit, 240 applications were filed with the central authority dealing with Hague pact cases in England and Wales for the return of children to overseas destinations in fiscal 2013. Of these cases, 104 applications were approved by a court and nine were rejected.
“In England, we set the threshold very high,” Singer says. “I have not sent children back, of course, but it is the exception rather than the rule. If a country operates the Hague Convention in a way where the default position is not to send children back, then that country is not operating the Hague Convention as it is supposed to work.”
Reunite talks to people who were abducted as children and finds that many suffer from anxiety, exhibit a strong need to control every aspect of their life and have serious trust issues with other people.
Singer says that parents who abduct their children sometimes tell lies about their former spouses, which makes it extremely difficult for the left-behind parents to reconnect with their children.
“As they grow up, (children) carry that trauma into their adulthood,” Shalaby says. “It will stay with (my daughter) forever as it will do with a lot of the children.
“(Abduction) isn’t about love. It’s about one parent making a choice for themselves and making that choice for the child as well.”
Source: “State of the reunion: Evaluating the Hague pact’s success”, The Japan Times, 18 April 2015