First of all, let us imagine the following fictitious scenario.
An American woman named Michelle and a Japanese man named Kazuo lived in New York City for seven years after they got married, but they got divorced a year ago. They began living in separate locations in New York City. They have a four-year-old son named Joe. When they got divorced, they decided that Joe would live with Michelle but stay at Kazuo’s place every other weekend. However, Kazuo had to go back to Japan because of his work, and one weekend six months ago while Joe was staying at his place, Kazuo took Joe to Japan without consulting Michelle. Since then, Kazuo has been bringing up Joe at his parents’ home in Japan. What should Michelle do in order to bring Joe back to the United States?
The event that transpired in the above scenario could be viewed as a “child abduction.” This term refers to the situation in which a parent or relative unilaterally removes a child (under 16) from the other parent or legal guardian who has custodial rights. Child abduction occurs frequently in domestic cases such as when divorced couples living in Japan have disputes over the custody of their children, but it can also occur in international cases that cross international borders. Since society and families have become more internationalized in the second half of the 20th century, international cases of child abduction have been drawing attention as a serious social problem.
Therefore, in order to deal with international cases of child abduction, a convention was established in 1980 by the Hague Conference on Private International Law. This convention is the Convention on the Civil Aspects of International Child Abduction. The convention went into effect in 1983. The number of signatory countries has increased steadily. As of Aug. 26, 2009, 81 countries have acceded to the convention. In 1988, the convention came into force for the United States. Japan has not yet become a signatory nation. The list of the signatory countries is posted on the Hague Conference on Private International Law’s website (http://www.hcch.net/index_en.php?act=conventions.status&cid=24). The website also provides detailed information (provisions, explanations, references, etc.) about the convention (http://www.hcch.net/index_en.php?act=conventions.text&cid=24).
Next, let us examine the Convention on the Civil Aspects of International Child Abduction based on the above scenario.
The U.S. is a signatory to the convention, but Japan is not. Under this situation, the convention does not apply to this case. Accordingly, it is impossible to resolve the case by making use of the convention, as explained below. One of the ways Joe could be returned to the United States is by voluntary consultation and agreement between Michelle and Kazuo. Additionally, the mother has the option of bringing the case to court in Japan and going through Japanese legal proceedings. If she files a lawsuit in Japan, she would need to hire a Japanese lawyer. It is legally possible to pursue legal action without a lawyer, but it would probably be impossible for Michelle, who neither speaks Japanese nor has any knowledge of the Japanese legal system, to go through Japanese legal proceedings without a lawyer. A considerable amount of time and expense would be needed for Michelle to locate and hire a Japanese lawyer.
Even if she could hire a Japanese lawyer and bring the case to court, it is uncertain whether she would prevail. In the case of parental child abduction, the relevant Japanese laws to determine whether a left-behind parent should be allowed to take an abducted child back to his/her home country are complicated, so a detailed explanation of the system is omitted here. But Japanese courts take every factor into consideration and then make a determination, based on “the best interests of child,” whether an abducted child should be returned to the left behind parent. As one of the factors in making a judgment, the court would consider whether it would be in the interest of Joe to be brought up by Kazuo (and his parents) in Japan or by Michelle in the U.S. If the judge decided that it would be better for Joe to be brought up by Kazuo in Japan than being returned to Michelle in the U.S., her claim would be turned down.
So what would happen if Japan were a signatory to the Hague Convention on the Civil Aspects of International Child Abduction? If Japan were a signatory, the convention would apply to this case, so the procedures taken would be quite different from the above.
If the convention applied to the case, the following procedures would generally be taken. Michelle would consult with the central authority in the U.S. (the Office of Children’s Issues at the Department of State) first and then file an application to the central authority in the U.S. Upon receiving information from the central authority in the U.S., the central authority in Japan would provide substantial support in order to swiftly return Joe to the U.S., based on the Hague Convention. Specifically, the central authority in Japan, if necessary, would locate Joe and Kazuo and then urge Kazuo to voluntarily return Joe to the U.S. If Kazuo refused to do so, the central authority in Japan would bring the case to court in Japan or offer various types of support to Michelle in filing a lawsuit in Japan. At the trial, the Japanese judge could order Kazuo to immediately return Joe to the U.S., in principle, without making any judgment on whether he should be brought up by Kazuo (and his parents) in Japan or by Michelle in the U.S. Now, I will provide some additional information about how the convention is applied.
First, I would like to explain about the central authority, which plays a crucial role in applying this convention. All parties to the convention are obligated to designate their own central authority. The central authority of the U.S. is the Department of State’s Office of Children’s Issues. The central authorities of various countries are in close contact with each other and work together. They do their utmost to put the objectives of the convention into practice in cooperation with various other agencies in their own countries as well. To be specific, they accept requests for assistance from parents claiming that their children have been abducted (applicants) and forward the cases to the central authorities of the countries to which the children have been taken (Articles 8 and 9). The central authority of the country to which each child has been taken implements various measures to ensure the prompt return of the child (Article 7). Thanks to the efforts and assistance of the central authority, the applicant, who might otherwise be at a loss to deal with the various problems involved in getting back his or her child who has been abducted to a foreign country (imagine how Michelle would have felt if the convention did not apply), would be able to take advantage of the procedures to have the child returned.
The next point is related to ordering the return of the child without determining which parent is best suited to raise the child. One of the major points of this convention is that in the event that a child has been wrongfully removed, he or she shall be, in principle, returned to the country of his or her habitual residence, without passing judgment on which parent should be allowed to raise the child (i.e., a judgment concerning child custody). If a judgment needs to be made in a trial upon the return of a child who has been abducted, including a dispute over the custody of the child, it would be necessary to study the case in detail while also giving consideration to benefits to the child in the future, which would make it difficult to carry out the procedure swiftly.
Depending on the circumstances, a situation might occur in which a judgment is made that the parent who has abducted the child should be given the custody of the child (in this scenario, a judgment that Joe would be happier if Kazuo raised him in Japan) is reached and it is concluded that the abducted child should remain in the country to which he or her has been taken. In that case, however, it would be impossible to expect the convention to produce the effect of preventing the abduction of children – one of the objectives of the convention. As such, the convention stipulates that in the process of returning a child in accordance with the convention, the child shall be returned to the country of his or her original residence (habitual residence) without passing judgment on the custody of the child (in other words, without considering which parent would be better suited to raise the child in the long term), if the child has been removed wrongfully.
The convention is based on the thinking that the child should be returned to the country of his or her habitual residence and then a judgment on the custody of the child can be and should be made by a court in the requesting country following a thorough investigation into the case. The above-mentioned matters are specifically regulated in Articles 16, 17, 19 etc. For instance, Article 17 provides that the fact that a judgment on child custody has been made in the country that receives the request shall not be definitive grounds for refusing to return a child under the convention. Therefore, when Kazuo, the father of the child, brought the child to Japan without the consent of Michelle, and Michelle filed a request for the return of the child with a Japanese court under the convention, the Japanese court would not be allowed to refuse to return the child solely on the basis that it has already granted custody of Joe to Kazuo, provided that the requirements for the application of the return of the child under the convention are met. At the same time, the Japanese court could consider the basis for the previous issuance of the custody order in making its determination whether or not to order Joe’s return to the United States.
The main principle of the convention is that in the event of the abduction of a child across international borders, the child shall be returned to the country of his or her habitual residence in a prompt, comprehensive, and reliable manner. This is based on the notion that if the convention makes it pointless for a parent to wrongfully remove his or her child because the child shall be returned to the country of his or her habitual residence, it will serve as a deterrent to child abduction. Considering the fact that child abduction itself is a serious infringement on the welfare of the child, preventing child abduction is an extremely important goal to be achieved by the international community.
Even so, there are some exceptions to this principle. One is a case in which a request for the return of a child is filed after the expiration of a period of one year from the abduction of the child. In this case, if it is proved that the child is now settled in his or her new environment, the country where the request was filed is not obligated to order the return of the child (Article 12, Paragraph 2). Conversely, if a request is filed within a year after the abduction of a child, arguing that the child is settled is not a defense to the demand for return. Article 13 also stipulates exceptional cases in which the country that receives the request is not bound to order the return of the child. Of those cases, one stipulated under Article 13, Paragraph 1, Clause b often becomes an issue. According to this clause, if it is proved that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,” then the country that receives the request is not obligated to return the child. For instance, cases in which there is a possibility of the child being abused in the country to which he or she is returned would fall under this clause. This exception is narrowly construed, however, and should not be relied upon in cases where the habitual residence can protect the child from abuse.
As shown above, quite different rescue measures for abducted children and left-behind parents are taken in cases for which the convention applies and does not apply. As mentioned at the outset, 81 countries have already acceded to the convention. This has recently been the subject of considerable discussion, including debates on why Japan has not ratified the convention and whether Japan will be able to or should in fact accede to the convention in the future.
Some people take the view that Japanese culture and traditions related to divorce and child-rearing might be preventing Japan from acceding to the convention. To be sure, only one parent is allowed to have parental authority following a divorce in Japan, whereas in the U.S. and Europe divorced couples are allowed to have joint custody. So-called visitation rights hold less weight in Japan than they do in the U.S. and Europe. In addition, some people question whether the government should strongly criticize parental child abduction, citing that it is a reflection of parents’ affection for their children. Also in Japan, however, an increasing number of people have begun to think recently that both parents even after divorce should continue to be involved in child-rearing in their respective ways and that the noncustodial parent also should be permitted to see his or her children through visitation rights for the sake of the children’s healthy development. Furthermore, the act of wrongfully removing a child by a parent has been viewed increasingly negatively. (Recently, a criminal penalty has been inflicted on such parents.) Even if it is true that such culture and traditions have stood in the way of Japan’s participation in the convention, they are unlikely to continue to constitute a major obstacle to Japan’s accession in the future.
However, this certainly does not mean that acceding to the Hague Convention will be a simple matter for Japan. Acceding to the treaty will require meticulous preparations in a variety of areas. For example, it will be necessary for the central authority to secure adequate manpower and financial resources to carry out its duties. Furthermore, with regard to lawsuits for ordering the return of children, new special procedures will have to be legislated because the existing legal procedures are not well-suited for the Convention. In addition, ways to enforce orders on a mandatory basis for parents who have abducted their children to return them if they refuse to obey such orders will have to be considered. Furthermore, it will be necessary to think about the consistency and balance between the procedures to deal with domestic disputes over parental child abduction and procedures for resolving disputes such as international cases to which the Hague Convention applies.
In conclusion, while many issues need to be considered in preparation for acceding to the convention, Japan will also be able to reap a number of benefits. By acceding to the convention, Japan will be able to put a stop to children being abducted not only to Japan, but also to children being abducted from Japan (to other signatory countries), which will result in a significant improvement in the overall welfare of children. At present, since there are no means for realizing the return of children if they are allowed to travel to Japan for visitation and are subsequently retained in Japan in violation of the original agreement, the tendency in the U.S. courts is not to allow the children to travel to Japan. If Japan accedes to the convention, it will be much easier for such travel to be approved than under the present situation. Above all, accession to the Hague Convention should be considered seriously not only because it will benefit Japan, but also from the standpoint of contributing to the overall welfare of children worldwide through international cooperation.