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FOCUS December 2011 Volume Vol. 66

The Hague Convention and Japan: Some Issues

HURIGHTS OSAKA

On 20 May 2011, the Japanese Cabinet adopted a plan to accede to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. According to a report, the plan “basically requires an overhaul of Japan's family law system ... and would put the Foreign Ministry in charge of the cases related to international child abduction, including finding abducted children, taking measures to prevent child abuse and advising parents on the voluntary return of children.”1
The Hague Convention aims to “protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.” It applies to children below the age of sixteen years.
The decision to accede to the Hague Convention came under international pressure. A number of failed marriages between Japanese nationals and those of other countries resulted in children being brought to Japan that effectively denied non-Japanese parents of access to their children.
On 22 October 2010, the Ambassadors of Australia, Belgium, Canada, Colombia, France, Germany, Hungary, Italy, New Zealand, Spain, the United Kingdom and the United States, and the Head of the Delegation of the European Union to Japan issued a press statement expressing “concerns over the increase of international parental abduction cases involving Japan that affect our nationals as well as Japanese citizens, and [urging] Japan to ratify the 1980 Hague Convention.” The statement cited Japan as the “only G-7 nation that has not signed the [Hague] Convention.” It also stated that

Japan is an important friend and partner for each of our countries, and we share many values. We believe this can and should serve as the basis for developing solutions now to all cases of parental child abduction in Japan.

But while accession to the Hague Convention is recognized as necessary, certain quarters in Japanese society express concern about the international agreement, particularly regarding its impact on the welfare of children. One editorial raised questions that should be answered “through in-depth discussions on actual cases”:2

What kind of evidence is needed to prove the exercise of violence in a foreign country, for instance? What does the phrase "seriously traumatized" exactly mean?What kind of powers and information in the possession of public institutions should be used for carrying out these tasks? Should police also become involved?

The editorial further stated that at the “time of the Cabinet approval of Japan's participation in the pact, the government specified several conditions that [would] allow it to refuse the return of the child under the law,” namely:

The child has suffered from the father's violence; the husband has exercised violence against the wife in a way that has seriously traumatized the child; the wife cannot go with the child due to financial and other reasons and there is no appropriate person in the country who can take care of the child.

There are indeed issues that should be addressed in order to assure public support for the Hague Convention. Following are views on the implementation of the HagueConvention expressed in an August 2011 symposium in Osaka.3

U.S. experience with the Hague Convention

Ms. Nancy Zalusky Berg, a lawyer and President of the International Academy of Matrimonial Lawyers – U.S.A. Chapter, noted that the discussions on issues such as child protection and custody had been going on in the U.S. for a long time. Under the then prevalent “Tender Years Doctrine,” it was thought that the mother’s influence was important in the healthy development of the child. She further noted that the Best Interest of the Child Approach took its place in the 1970s. The approach coincided with the development of the women’s movement in the U.S., that included discussions on distribution of property, spousal maintenance, and above all on child raising.
On the issue of return petition, which seemed to be at the center of the discussions in Japan, she noted the relevant Hague Convention provision:

Article 13

 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

          xxx   xxx   xxx

 b) 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.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.

The courts must observe the situation of the child carefully, and listen to his/her wishes or expressions. They need to examine thoroughly, whether the child is being manipulated or is being prevented from speaking, whether the objection is well-grounded, or whether the child has been bribed with a toy or not.
Regarding the “grave risk” in Article 13 paragraph 1(b), she observed that the drafters of the Hague Convention could have used a clearer definition, but they might not have done so deliberately to allow a margin of discretion or interpretation. In this way, sovereign states are free to interpret the term according to its culture or its needs.
Ms. Berg noted the difficulty of knowing how many Hague Convention cases involved domestic violence, because the number varied depending on how domestic violence was defined. In many cases, the victims themselves were not aware of it. When asked whether she suffered domestic violence, a woman responded that she did not, although her husband had once held a gun to her head. She said that she did not have to go to the hospital. Ms. Berg also said that it was true that there were “exaggerated domestic violence” cases, in which complaints of domestic violence were raised to get an advantage in divorce proceedings. There were male victims of domestic violence in the U.S. but in reality, more women became victims than men. An estimate put a third of Hague Convention cases involved domestic violence.
She explained the undertaking as a U.S. judicial measure in Hague Convention cases. An undertaking is a promise not to use violence, or to withdraw the criminal complaint by the petitioning parent. There are cases when the undertaking does not work. For the undertakings to be implemented, it is necessary to gather information in broad cooperation with relevant people, including lawyers.
She concluded that the text of the Hague Convention was very well written. But there was no single answer to all of the problems, and consideration should be given to how the text should be interpreted taking into account the cultural differences.

Some Views from Japan

Ms. Mikiko Otani, a lawyer and Vice-Chair of the Working Group on t he Hague Convention of the Japan Federation of Bar Associations (JFBA) pointed out that the most important aspect of the HagueConvention was the “best interests of the child” principle. She explained that the primary purpose of the Hague Convention was to protect the child from harmful effects of abduction, and thus provided for a prompt return to the place where the child used to live before being abducted. It also required ensuring the right of access to children. On the other hand, when a risk existed that the return might cause psychological or physical harm to the child, meaning the return was not in the best interests of the child, the Hague Convention provided exceptions.
She asserted the importance of applying the Hague Convention along the lines of the Convention on the Rights of the Child. The most important point was that the child had the right to maintain relations and direct contact to both parents.
She explained the many concerns raised in Japan on the cases of mothers who returned with their children and who were victims of domestic violence. Sometimes decisions in favor of not returning the child might be taken because of the violence against the mother, the child witnessing the violence against the mother, or being placed in such a stressful environment itself might be violence or abuse against the child. In such cases, she stressed the importance of ensuring the consideration of both the best interests of the child and the human rights of women.
She explained several recommendations from the ongoing discussions in Japan about the Hague Convention. First, discussions on the Hague Conventions should be based on the perspective of the best interests of the child. Second, the Convention on the Rights of the Child must be included in the discussions regarding the domestic legislation to implement the Hague Convention. Third, since the issues involved were relevant not only to lawyers, everyone involved in matters relating to children (including the children themselves), particularly people working in the field of child and clinical psychology, as well as lawyers, should participate in the discussions to collectively consider how the Hague Convention would apply the children’s best interests, and without causing harm to them.
Ms. Noriko Odagiri, a professor at the Tokyo International University and a Clinical Psychologist, explained that many studies showed high self-esteem and emotional stability in children who were in contact with their parents. Visitations could be seen as important in the healthy growth and development of the personality of the child.
She explained that visitations allowed children to confirm their parents’ love for them. They were also important to children in maintaining equal psychological and physical distance from both parents, gaining independence from their parents, and establishing their own identities.
While visitations are rights for both parents and children, they are ultimately based on the right of children to know their parents and themselves. She noted the importance of organizing the visitations with due respect for the intentions of the children, although parents might take the initiative in deciding the frequency and schedules while they were young.
In eighty percent of divorce cases in Japan, the mothers are given sole parental right and raised the children. This reflects the culture of giving precedence to the mother-child relationships, and the social expectation of lesser role of fathers in child raising. It is quite natural for Japanese women, who married a foreigner and lived abroad, to return home with their children after divorce. But such acts are not internationally accepted.
One of the issues of concern with the accession to the Hague Convention by Japan was the disruption of the children’s daily lives due to abduction by one of the parents, as well as their return to the country of habitual residence. Another concern was the experience of loss through the abduction and return. The children would lose the familiar environment such as those at home, at school, and in the community, as well as the ties with one of the parents, grandparents and friends.
She presented several proposals on how to address the concerns. Following are the proposals:

a. Mandatory parental education programs - In the U.S., many States require divorcing couples to attend such programs, and would not receive their divorce applications unless they prove their completion. The purpose of participating in these programs is to understand the children’s need for contact with both parents for their healthy development, as well as the effects of the parents’ actions on the children, and to change the negative attitudes toward the former spouses.

b. Introduction of children’s representative system - Although there is a general assumption of respect for the children’s view, in practice, it is extremely difficult to ascertain the children’s view on visitations and the separated parents. To understand the children’s feelings that do not get expressed in words, implementing a system in which trained experts in psychology would carefully observe the children using various methods to understand their feelings and act on their behalf is crucial.

c. Recognition of the children’s right to know - Parents must tell their children in good faith about the situation at the time of divorce as well as what may happen in the future.

For further information, please contact HURIGHTS OSAKA.

Endnotes

1. Tricia Escobedo, “Japan takes a step closer to reforming its child custody laws,” CNN, May 20, 2011, http://articles.cnn.com/2011- 05- 20/ world/japan.child.custody.law_1_child-abduction-hague-convention- child-abuse?_s=PM:WORLD. The Ministries of Justice and of Foreign Affairs have drafted the interim report on the domestic legislative measures towards accession to the Hague Convention. The draft legislation is expected to be submitted to the regular session of the Diet in 2012, after further discussions.
2. Editorial, “Japan needs effective system for Hague child-custody treaty,” The Asahi Shimbun, 12 July 2011, http://ajw.asahi.com/article/views/editorial/ AJ2011071210722
3. The discussions that follow are based on the presentations in a symposium entitled “The Child’s Best Interests and the Rights of Parents in Cross-border Child Abduction Cases – Issues to be Considered in Joining the Hague Convention on the Civil Aspects of International Child Abduction” held in Osaka on 5 August 2011. HURIGHTS OSAKA and the Osaka Bar Association jointly organized the symposium.


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