Child Abduction, Japan and the 1980 Hague Convention

3963705135_407f5aacfc_mOn Friday the 24th of January 2014 Japan finally signed and ratified the 1980 Hague Child Abduction Convention.  The Government of Japan approved the 1980 Hague Child Abduction for ratification in Tokyo and within a matter of hours the instrument of ratification was deposited by Mr Masaru Tsuji, the Japanese Ambassador to the Netherlands. Japan is the most recent country to join the convention and has become the 91st contracting state. The convention will come into force within Japan on the 1st of April 2014. The signing of the convention appears to be in response to the heavy criticism Japan has received from the United States of America and a number of other western countries. Japan could previously have been compared to the Bermuda Triangle for child abduction with high numbers of children abducted to Japan every year with no following legal authority to return these children to their original jurisdictional country. Ratification comes after years of multi-governmental efforts of diplomacy and international public outcry over Japan’s failure to join the convention which caused numerous parents and children to have nowhere to turn in order to rectify their international abduction disputes.
The 1980 Hague Convention provides a system of co-operation between contracting member states in relation to international child abduction. Its aim is to ensure the immediate return of a child to its original country of habitual residence. Numerous judges across the contracting member states oversee the implementation and continued compliance with the convention; however they have no power to decide custody issues. Once the child is returned to their country of habitual residence the custody issues will then be decided by the court within whose jurisdiction the case falls.  Previous to Japan joining the convention the parents left behind after the abduction of a child to Japan had little or no rights in regard to their child. The parents left behind were often fathers who became a victim of Japans somewhat antediluvian and biased legal system in which the mother of the child was more often than not awarded custody of the child with the father being allowed no access to the child. Japan’s legal system has no concept of joint-custody. Japan was, previous to the 24th January 2014, the only country within the G8 that had not signed the 1980 Hague Convention.

The Convention will however not be retrospective, which means that those parents left behind previous to the enactment of the convention within Japan will have no cause for action under the convention. This obviously remains a high concern and a debated point. With the implementation of the convention Japan will need to establish a Central Authority, which will be made up of international family law experts, domestic violence counsellors and child psychologists. The Central Authority will be in charge of locating children who are the subject of abduction and encouraging the parties involved to try to settle their disputes without the need for litigation. There remains a defence to child abduction, this being refusal to return a child if abuse or domestic violence is feared.

Japan’s signing and ratification of the 1980 Hague Child Abduction Convention may encourage countries who have previously refused to join the convention to do so, these countries including India, Egypt, the Philippines, mainland China and Saudi-Arabia, some of whom are already considering the convention.

Marriages between Japanese citizens and non-Japanese citizens are on the rise with a peak of nearly 9,000 marriages in 2007 between non-Japanese men and Japanese women. In comparison marriages between non-Japanese women and Japanese men only accounted for approximately 2,000 marriages in 2007, with marriages where both parties were of Japanese origin dropping from approximately 4,000 in 1991 to just below 2,000 in 2009; these figures being produced by the Ministry of Health, Labour and Welfare. It therefore follows that child abduction to Japan will rise should these marriages breakdown. Japanese divorces are more often than not resolved on paper without the need for litigation; however the element of child abduction, previous to the Hague Convention, often caused Japanese divorces to be greatly extended.

In October 2012 the Children’s Rights Council of Japan obtained statistics, from the National Centre for Missing & Exploited Children, which showed that 93% of cases involving the abduction of a child from the USA to Japan remained unresolved after two years, with 44% of these case remaining unresolved for over five years. Further, 76% of closed cases involving child abduction from the USA to Japan resulted in the child never being recovered. The Children’s Rights Council of Japan is not aware of a single recovery from Japan that has resulted from civil legal proceedings, and is only aware of one recovery following the issuance of a criminal warrant against the abductee, this being the case of Dr. Moises Garcia, which can be found here: http://crcjapan.wordpress.com/2012/06/17/japanese-courts-grant-custody-to-u-s-father-in-moises-garcia-case/ (About the Childrens Rights Council of Japan, http://www.crcjapan.com/)

In conclusion it is therefore undeniable that Japan joining the 1980 Hague Convention is a decisive and commendable step in the right direction. However with the convention being non-retrospective in Japan the step is arguable reduced to a significant shuffle. I see this remaining a debated issue and one of some contention. A further positive point is arguably the increased pressure that now applies to those countries that remain non-compliant with the convention.

Articles of interest in regard to this matter, should you wish to read further are listed below:
Behind Japan’s Ratification of the Hague Abduction Convention by Kamoto Itsuko: http://www.nippon.com/en/currents/d00079/

Japan to finally be compliant with Hague Convention on child abduction in April 2014 by John Hofilena: http://japandailypress.com/japan-to-finally-be-compliant-with-hague-convention-on-child-abduction-in-april-2014-2338345/

Children’s Rights Council of Japan: http://www.crcjapan.com/

Numerous articles on Japanese Child Abduction from the International Association for Parental Child Reunion: http://www.iapcr.org/

Japanese Foreign Ministry’s international child abduction statistics published: http://crcjapan.wordpress.com/2011/06/07/japanese-foreign-ministrys-international-child-abduction-statistics-published/

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