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Wednesday, Feb. 22, 2012

EDITORIAL

Joining the Hague convention

The Legislative Council of the Justice Ministry earlier this month submitted an outline of domestic bills related to the 1980 Hague Convention on the Civil Aspects of International Child Abduction to Justice Minister Toshio Ogawa. The government plans to submit a bill to approve Japan's joining the convention and bills to establish a system in Japan to implement the convention to the Diet by the end of March.

If Japan joins the convention, it is expected that there will be more cases in which Japanese parents will have to return their children to their spouses' or former spouses' countries than cases in which they request the return of their children from their spouses' or former spouses' countries. In implementing the convention, Japanese officials concerned should act from the standpoint of protecting the well-being and interests of children as well as of ensuring fairness to the parties concerned.

At present 87 countries are parties to the convention, which went into effect in 1983. Among the Group of Eight countries, Japan is the only one that has not yet joined the convention, which sets procedures for settling cross-border child custody disputes. The Kan Cabinet in May 2011 endorsed a policy of Japan joining the convention.

In April, a secretariat to prepare the establishment of the central authority as stipulated by the convention will be set up within the Foreign Ministry. No opposition parties have clearly opposed Japan joining the convention. But it is not certain whether the Diet will approve Japan becoming a party to the convention because the ruling Democratic Party of Japan may not be able to secure enough time for deliberations in the opposition-controlled Upper House.

If Japan joins the convention, it will be implemented in the following way. If a Japanese parent removes his or her child under the age of 16 from the child's country of habitual residence and the left-behind parent requests the child's return, the central authority in Japan will locate the child by asking for information from local governments, schools, day-care facilities for children, shelters for victims of domestic violence, the police, etc.

Then the Tokyo Family Court or the Osaka Family Court will handle the case without opening the proceedings to the public in principle and decide whether the child should be returned to his or her country of habitual residence. To help abductor parents who live in areas remote from the courts, the government should set up a system to send court officials to them to listen to their cases.

If the court decides to return the child, the Japanese parent must take the child to the country of the left-behind parent and hold talks with the left-behind parent over custody of the child under that country's legal system.

According to the Foreign Ministry, as of the end of 2011, the United States, Britain, Canada and France had collectively identified 193 cases of child abduction involving Japanese parents. Although the convention does not retroactively apply to abduction cases that happened before Japan joins the convention, the U.S. is demanding that Japan handle such cases with humanitarian consideration.

If the Japanese parent does not obey the court order to return the child, the court attempts to enforce compliance by ordering him or her to pay compensation under a civil law. If the parent again refuses to obey the court order, a court-appointed official will separate the child from the parent.

To prevent such a development, at some point the government may consider advising the Japanese abductor parent and the left-behind parent to use a civil mediation system and solve the custodial dispute in a non-confrontational manner.

Under the outline worked out by the Legislative Council, the Japanese abductor parent can reject a court order to return the child to the country of the left-behind parent (1) if the left-behind parent makes his or her request after one year has passed since the removal of the child took place and if the child has adjusted himself or herself to the new environment or (2) if the child has reached a certain age and refuses to return to the county of the left-behind parent.

In case the Japanese abductor parent alleges that the left-behind parents employed domestic violence against the abductor parent or the child or is unable to raise the child due to dependence on alcohol, the court is required to take into consideration these matters in making its decision. But the burden will be placed on the abductor parent to submit evidence that supports his or her claim.

Although the outline does not specify the method to prove the existence of domestic violence, it is likely that the abductor parents will be required to submit documents pointing to domestic violence, such as medical reports concerning injuries the abductor parent or the child sustained and records showing that the abductor parent or the child contacted the police to report domestic violence at the time it allegedly occurred.

As it is very unlikely that the abductor parents who truly suffered from domestic abuse would have obtained such proof before removing the child from the country of the left-behind parent, the government should give proper advice to Japanese parents living abroad so that they will be well prepared to properly document domestic violence should they or their children fall victim.



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