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Tuesday, Nov. 8, 2011
Hague won't help Japanese mom reunite with lost baby
By YUICHI KAWAMOTO
Kaori is a Japanese national married to a man with dual New Zealand and British citizenship. They have a 1-year-old child, and had been living in London for some time when her husband recently told her he had been offered a job in Tokyo and wanted to move there together. She agreed, quit her full-time job and flew to Japan with her husband and child.
A few days after arriving, Kaori's husband arranged for the three of them to meet his friend in Shinjuku. He offered to take their son to the park first while Kaori did her makeup, she writes. They never came back.
"I went to the local station in case they were lost and waited until after the last train passed, then submitted a missing person's report at the police station. The following morning I found their passports and some cash (¥350,000) was missing," she writes. Police later confirmed that her husband and son had flown to New Zealand, as she had suspected.
Kaori says she has since learned that her husband booked the two tickets to New Zealand in London, and had therefore been planning this for a while. "Also, now I have confirmed he was not offered any position in Tokyo — this was a lie to make me leave my work, so that if we fight for our son's custody, he will be in a better position financially."
After she tried to call members of her husband's family, she says she received the following email from her husband: "Please do not contact any family members as they are not involved. You can contact me through this email. I have been to family court today."
Kaori adds: "I have been advised by police in Japan that they cannot do anything as my son was taken by his father. Also, a lawyer said that because Japan has not signed the Hague Convention, I cannot do anything from Japan.
"However, under these circumstances, is this still not a problem in N.Z., or can I say this is abduction? Do I have any possibility of getting my son back from N.Z.?
"I'm just very worried about my son's condition, as we moved from London only a few days ago to Tokyo and his appetite almost halved. Also, he still had to breast-feed constantly day and night.
"My husband did not take any warm clothes. Physically and mentally I am very worried that my son was suddenly taken to N.Z., where he has never been before, and has been away from his mother.
"As my son was born in London and has British nationality, if I ask the British Embassy in Tokyo, can they find him, as the U.K. has signed the Hague Convention?"
Whenever we discuss international legal matters, the first thing we need to consider is international jurisdiction. To file a case in court in any country, the court of the country needs to have jurisdiction to hear the case.
Each country has its own rules for deciding whether its courts have jurisdiction over a case. Until recently there was no legislation on international jurisdiction in Japan, and although the Code of Civil Procedure was revised this year to include these stipulations, the new law still does not cover divorce and custody cases.
Although decisions on whether a court has jurisdiction are determined on a case-by-case basis, certain rules are formed over time through precedents. If Kaori takes this case to court in Japan as a divorce case, it is likely that the court will have jurisdiction to hear the case. Although the general principle is that the defendant (her husband) needs to reside in Japan for a Japanese court to have jurisdiction, in divorce cases where a spouse has been abandoned by the other, the court is said to have jurisdiction.
This means she can go to court in Japan to discuss this case and be divorced from her husband. During this process, the court can also decide who gets custody of the child. Legally, the court can give a provisional order requiring the husband to hand over the child.
However, the biggest issue is that there is no way to enforce the return of the child from New Zealand to Japan, whatever order she gets within Japan. This is because a court order from one country cannot be enforced in another unless a court in the other country accepts its contents and makes its own order. There must be a specific international agreement in force between the two countries for an order from one to take effect automatically in another.
Japan has not signed the Hague Convention on the Civil Aspects of International Child Abduction, which enables any parent of an abducted child to apply to a local agency at the child's original residence for the child's return. This local agency will then transmit this information to the agency of the country to which the child has been abducted.
As Japan is not a party to the convention, and a court order within Japan is not made according to the convention, it cannot be enforced in New Zealand, and there is not much more Kaori can do within Japan to ensure the return of her child.
The most straightforward option would be to go to New Zealand, hire a local attorney to get a court order within New Zealand, get the child back locally and then bring the child back to Japan.
In this case, it is possible that the father took the mother and the child to Japan intentionally, in order to avoid the application of the convention, which both Britain and New Zealand have ratified. However, Kaori may also be able to file a case based on the convention from either of those countries. Since the child had only been in Japan a few days when he was taken to New Zealand, she may be able to insist that the country of residence of the child is still the U.K., not Japan.
In conclusion, she needs to take action in Britain or New Zealand, and not much can be done from within Japan. It is expected that Japan will ratify the convention in the near future, but it is not retroactive so it will not change Kaori's situation.
Yuichi Kawamoto is a lawyer at the Section of Legal Assistance for Foreigners at Tokyo Public Law Office, which handles a wide range of cases involving foreigners in the Tokyo area. TPLO lawyers will address readers' legal concerns on the second Tuesday of the month. Web: www.t-pblo.jp/slaf. Phone: (03) 5979-2880. Send your questions to email@example.com