Rights of access under the Hague Convention

The Hague Convention, in addition to providing a means by which a wrongfully removed/retained child can be returned to their country of origin, contains a provision for the organization of rights of access in cases where an international abduction has occurred.  This may be of benefit to parents in cases where the abduction pre-dates the coming into force of the Hague Convention (the provisions in relation to access apply to pre-1 April 2014 cases, unlike the summary return provisions), who choose not to contest the abduction or who do contest the abduction but a court declines to order a return.

Article 21 of the Convention is concerned with rights of access and provides as follows:

An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.

The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.

The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organising or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.

In the year since the Hague Convention entered into force in Japan, much less has been written about the provisions relating to contact than the headline provisions relating to the summary return of snatched children.  There was, however, a report entitled “Child abductions down in year since Hague pact, but not all are happy” that appeared in The Japan Times on 2 April 2015.  This reproduced some more general statistical information in the public domain, and about which I have already written over recent days.  However the article also addressed the issue of access rights in the context of the Hague Convention.

On this, the respective positions of the Ministry of Foreign Affairs and the Canadian left behind parent quoted in the article could not have been further apart:

As for facilitating meetings between a child and a non-custodial parent, the ministry said it mostly succeeded in making those arrangements possible.

The official said Japan has so far been praised for its efforts to abide by the convention, which applies to international marriages and to disputes between Japanese and non-Japanese couples.

[…]

One Canadian father who was left behind claims the pact is ineffective in Japan. The man, who has not seen his 4-year-old son in Japan for two years and has been seeking visitation rights, said he found the treaty “disappointing.”

There is “no difference before the convention was implemented and after the convention was implemented,” he told Kyodo News.

“I was convinced more or less I would see my son because under the Hague Convention, they are supposed to quickly arrange that you meet your child,” he said.

Instead, under court mediation, he was eventually offered strict conditions for meeting his son: a maximum of two or three times a year, only in Japan, and always under supervision so as to prevent another abduction.

The father called the offer “an insult” and said was it would be “considered a joke” in Western countries.

“In the West generally, supervised access is only used in case of, for example, the parent is a drug addict or mentally ill,” he said.

The position of the Ministry of Foreign Affairs is an astonishing one – it is not quite untrue but is misleading in the extreme.  The wording used, “…the Ministry has mostly succeeded in making those arrangements possible…”, makes a non-point.  It is clear that, whilst procedures have been put into place as required by the Convention that does not mean, and importantly it is not suggested by the Ministry, that those procedures have resulted in meaningful contact being secured in any international case.  There have been no reported cases of even indirect access being granted through the Convention – and the Ministry has not tried to suggest otherwise.  Had there been such cases, then attention would surely have been drawn to that as the Ministry, being the Central Authority, would have the statistical data even in the absence of media publicity in any individual case. Yet the issue is more fundamental than that.  How can there even be such access when the attitude of the resident parent and the courts in Japan are in the main dead against the notion of meaningful contact on the part of the other parent?  How can there be meaningful contact in the absence of any willingness on the part of the courts to enforce any (probably limited and supervised) contact that is granted?

The Canadian parent quoted in the report was treated wholly inappropriately for the reasons given by him in the article.  Being granted “a meeting” with your child for a “maximum or 2 or 3 times” a year and on a supervised basis, ostensibly so as to avoid a “further abduction”, adds insult to injury and runs counter to the policy of the Hague Convention which is to put right a wrongful removal or retention of a child or, where that cannot happen, at least ensure that the child is able to have something approaching a normal relationship with both parents.  But what sort of a message does it send out to the left behind parent and the child if contact can only be supervised?  What impression will that leave on the child?  Whilst the Convention does make clear that contact can be subject to conditions, that would be the case in any country’s system, and regardless of whether the case had an international element, but a condition of supervision would only be imposed in a right-thinking country in cases where the absent parent had a criminal history or was considered a potential risk to children – which might, in any event, mean that it would not be in the best interests of the child to have contact with them anyway.  Supervised contact cannot therefore be the norm and the Convention recognises this in that it also speaks of the need for “effective exercise of rights of access” and “peaceful enjoyment” of those rights.  Without doubt, the situation in Japan does not even begin to satisfy these requirements.

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