One year ago the Hague Convention entered into force in Japan. Drastic, nihilist almost, change is still needed to Japan’s archaic and inflexible “system” of family law if the principles that are enshrined in the Convention are to be properly respected.
The first return of a child to Japan was a case involving the UK, about which I wrote at the time here. The first return of a child from Japan took place in mid-October 2014. However, this was, in the end, an agreed return, not a court-sanctioned return. The threat of the Convention, rather than its actual operation, proved to be enough. I wrote about it here. The first court order for the return of a child from Japan was issued in November 2014; the decision was upheld on appeal although it is not clear whether the decision has been implemented.
Although there have been some returns, and even some largely anecdotal indications that abductions have fallen, neither points are, in themselves, especially encouraging. One year on, two – partially related – concerns remain.
First, there continues to be a large amount of under-reporting. This is why the statistics in terms of returnees published over recent days need to be treated with great caution. The under-reporting is not limited to the pre-1 April 2014 cases not covered by the Convention. Paradoxically, taking legal action can be seen as being counter-productive, cutting off the possibility, however remote, of an amicable solution, even if a solution short of return, and can in any event be deeply unsettling to children. Parents may conclude that it is better to do nothing rather than risk inflaming the situation. Hope is what keeps many parents going. In the case of other parents, the arbitrary removal of their child or children from their lives can destroy them; it can render parents incapable of looking after themselves, let alone trying to guard and promote from afar the interests of their children. Parents, particularly those who have limited experience of Japan and the language, are put off by the daunting prospect of having to deal with the situation in an alien country. Parents are provided with little if any support from foreign embassies, are regarded as a problem by the police and are traditionally treated with utter disdain by the Japanese judiciary. The system, particularly the court system, is geared against the foreign/non resident parent.
That brings me to the second point. As the Convention has only been in force for 12 months, it is too early to draw any firm conclusions as to the approach of the courts in Japan as there have not been enough cases. However, there are real concerns about the existing approach of the Japanese courts to family law cases. The starting point in Hague cases is that a child habitually residence in country X will be returned there in the event of a wrongful removal or retention in Japan. The exceptions are supposed to be applied restrictively – the main ones are acquiescence on the part of the left behind parent, a child’s objection (subject to a test of maturity) and a grave risk of psychological or physical harm to the child were a return to be ordered. The concern is that these exceptions will offer judges an opportunity to prevent the return of children and to uphold the status quo and, in other words, apply a judicial rubber stamp to the abduction. The omens are not good as, in disputes over the residence of a child within Japan, the courts rarely interfere with the status quo: the child stays put, regardless of where their best interests, properly considered, lie. A further concern is enforcement. It is not actually clear that any child has actually left Japan as a result of a court order; appeal in relation to the November 2014 case has only just been concluded and it is not clear whether the child has been returned to Sri Lanka or not as yet. Again, in domestic family cases the courts, even if awarding (usually very limited) contact to a non resident parent, do not follow the order up with sanctions for non compliance. That makes the family law system an almost pointless process in Japan – and does not bode well for the approach that will be adopted in cases where an abducting parent declines to return a child. In Japan the law allows legal wrongdoers to benefit from their wrongdoing. In regard to international parental child abduction, that did not change on 1 April 2014.
What needs to change in Japan is that people there need to stop regarding parental child abduction as acceptable and normal. It is not. The notion that one parent, save in exceptional circumstances (which would usually involve serious criminality), could lose all contact, even indirect, is profoundly shocking. That they could do so at the say-so of the other parent and not a court is also profoundly shocking. The Hague Convention has, at least, begun to make it clear that such attitudes are not acceptable in international cases; let it not be lost sight of, however, that abductions within Japan, when Japanese parents separate, remain fairly normal and, of course, the Convention has no impact on that. Where there is a dispute over whether a parent should see a child, or where that child should live, that should be decided by a judge on the basis of a dispassionate assessment of the facts, not by societal norms.
Yet, in Japan, the judiciary is the problem. The judiciary needs to learn that maintaining the status quo should not be seen as its raison d’etre when justice and evidence demonstrate otherwise; such a non-interventionist approach is not appropriate in cases of such overwhelming importance. Alarmingly, I am not sure that the judiciary in Japan can be regarded as wholly independent as it seems, unwittingly or otherwise, imbued with the societal approach to parental child abduction. Western governments need to recognize this, take it up with the Japanese government and set in place arrangements for judicial exchange and training. This is usually something that only needs to be offered to embryonic or failed states. Cases must be decided by reference to the principle that it is in general in a child’s best interests to have contact with both parents and for cases to be decided on their facts.
Keeping a child, a person easily influenced and/or unable to make decisions for themselves, away from a loving parent is incredibly selfish. It is, in most cases, damaging to all concerned, including in the long run the abducting parent who might well have a lot of explaining to do to the child when the wheel has turned a full circle 20-30 years down the line. The Hague Convention has made clear that children should not be arbitrarily removed from their home countries – but a wider problem as regards Japan’s approach to family law has yet to be addressed. A year from now, I do not expect the situation to have moved on a great deal so I doubt that there will be a ‘2 years on’ blog post on the subject of the Hague Convention. Let it be hoped that, by the fifth anniversary on 1 April 2019, when my son will be aged about 11 ½, there will be something more positive to write about.
Update (7 April 2015): There was in fact a second court ordered return of a child in the course of the first year of operation of the Hague Convention, although I only got to know about it after writing the above: read blog dated 7 April 2015 for further details.