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Tuesday, Feb. 21, 2012

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THE ZEIT GIST

Expectations low as Hague signing approaches

Treaty seen by many as mere window dressing in hunt for international community's approval


Several months ago I made a bet with a friend about how the Hague Convention on international child abduction will be applied after Japan finishes implementing it through domestic legislation. My bet was this: If a Japanese court ever does order the return of a child wrongfully brought or retained here, the first case will be one in which both parents are non-Japanese. Needless to say, I hope to lose.

Despite the Japanese press trying to reduce the complex problem of international parental child abduction to one of Japanese mothers fleeing from abusive foreign husbands, the nationality of the parents involved in child abduction cases should not be an issue under the convention. The treaty is about the best interests of children and is rooted in a couple of fairly simple notions: that what is best for children should be decided in their country of habitual residence, and that this residence should not be subject to change by the unilateral — possibly illegal — actions of just one parent. This is not just a matter of abstract fairness either, since most of the evidence a court might find relevant to deciding what is best for a child after parental separation is likely to be where the child has been living, whether it is school or medical records or the testimony of relatives, teachers, counselors or other people who know the child and their family.

In Japan, however, the "best interests" that tend to get primacy are those of the people who make and apply the law rather than of children. This is why it has always been difficult for me to imagine that Japan joining the Hague Convention will actually result in children being taken away from Japanese mothers and returned to foreign countries (even though all this might mean in many cases is that the taking mother has to apply to a foreign court to relocate to Japan with the children).

Whatever the convention or any domestic law says, it is unlikely to ever be in the interests of a judge or other bureaucrat involved in an abduction case to be the person who makes that decision in any particular case even if they accept the principles of the convention in the abstract. This is why I made my bet: If both parents are foreign (or Japanese for that matter — cases where both parents are Japanese residing abroad would also be covered by the convention) then the simplistic "us vs. them" dynamic being touted in the Japanese press will not apply, making a return decision that much easier to make.

The country will certainly need to show some return orders to avoid being criticized for turning the Hague Convention into the family law equivalent of the International Convention for the Regulation of Whaling, where aggressive use of the "scientific whaling" exception has rendered Japan's membership something of a bad joke internationally.

Worrying signs

Insofar as they provide numerous opportunities for people in positions of authority to avoid taking responsibility for returning a child, there is little that surprises me in the legislative proposals recently announced by the Ministry of Foreign Affairs (MOFA) and the Ministry of Justice (MOJ). Indeed, the fact that implementation is being split between two different ministries is an early indicator that its application will be patchy.

The MOFA position on the access rights under the convention is useful for illustrating the bureaucratic attitude underlying the government's whole approach. According to the position paper issued by the MOFA deliberative council on Jan. 19, a left-behind parent (LBP) seeking contact with their child in Japan will need to submit to the MOFA a form setting forth, among other things, (a) the legal basis under home country law for claiming entitlement to see their own children, and (b) their basis for asserting that the taking parent is interfering with such contact.

This may seem reasonable on first glance, but if the LBP is seeking a return order as well as immediate contact, this separate requirement seems kind of stupid. Furthermore, if the child has been brought to Japan before any divorce or custody proceedings were commenced in the home country, the LBP may have nothing to show. Finally, requiring the LBP to show that the taking parent is preventing contact is a bit much because they have already taken the child to an island on the other side of the planet — hello?

But then, of course, how access would be realized is a bit of a mystery. Although as "central authority" under the convention the MOFA is obliged to help locate children in Japan, it may not actually provide that information to LBPs seeking return or access — unless the taking parent consents.

For their part, the MOJ legislative proposal should leave plenty of leeway for judges to avoid ordering a return in any given case. Not only that, but even if a return is ordered, taking parents are accorded numerous opportunities to appeal, request that the order be suspended or even reconsidered due to a change in circumstances.

It's good to talk?

Cutting through much of the detail, it appears that the judicial side of implementation may involve a lot of business as usual for the family courts in Tokyo and Osaka charged with handling Hague cases. One indicator of this is an oddly-phrased part of the proposal stating that "at any time, with the consent of the parties a court may on its own authority submit a return case to family court mediation." If it does so, the return proceedings are suspended while the mediation proceeds. This would seem to give judges in return cases the ability to coerce parties (through the implied threat of an unfavorable ruling) into the often fruitless but time-consuming mediation that parents have to go through in non-Hague cases, rendering the prompt returns envisioned by the convention unobtainable.

The MOFA proposal is also big on encouraging mediation, referring not only to family court mediation but out-of-court dispute resolution mechanisms as well (really cynical prediction: at some point retired MOFA officials start to pop up as Hague case mediators).

Mediation always sounds nice in comparison to more formal, adversarial litigation and the convention certainly endorses amicable resolutions. But a mediated result is not necessarily a just result, particularly if it is achieved through one party being pressured into compromising principles they might reasonably have expected a court to uphold.

Mediation also generally requires a certain amount of goodwill on both sides, meaning it is optimistic — naive, even — to expect much of it in a case of cross-border child abduction. Furthermore, in a regime where the ministry encouraging you to seek mediation is the same one telling you it can't divulge where your children are and asking you to justify why you think you are entitled to see them at all, there may not be much good will left on the part of many LBPs.

The desire for a mediated result is not unique to Japan. Officials in other Hague signatory countries have told me that many return cases are actually resolved through mediation. Since most takings are by mothers who are the primary caregivers, a request for a return order is often by a father who may actually be willing to accept the mother's relocation as long as he continues to have a meaningful relationship with his children — something that could often have been provided for if the mother had first asked a court in the child's home country for consent to an international relocation.

It is worth emphasizing that despite often being portrayed as involving a "Japan vs. foreign country" choice for the children involved, the Hague Convention is not about where a child should live, but about where that decision should be made. Unfortunately, because meaningful enforceable access does not exist in Japan, it is hard to see how mediation can offer LBPs any comfort that their relationship with their children will be protected in Japan.

Whale-size caveats

Much of what is in the MOFA and MOJ proposals might be tolerable if it were accompanied by a clear statement of principle that returns are the rule and nonreturns the exception. While the actual statutory language remains to be seen, based on the proposals it appears that what are essentially exceptions under the convention will not be characterized as such in the domestic legislation.

Under the convention a judge may decline to order a return for a limited number of reasons, including if doing so would subject the child to a grave risk of harm in the country of origin. The MOJ takes this exception and steers a research ship through it by allowing courts to refuse a return order if repatriating the child could result in the child or the taking parent being subject to violence or abusive language or conduct from the LBP.

Leaving aside the expansive scope of the term "abuse," it should be remembered that much of the evidence needed to establish this exception is likely to be in the child's home country (as would be evidence of abuse by the taking parent, a possibility which seems to be ignored in the debate despite the fact that 60 percent of child abuse cases in Japan concern mistreatment by mothers). Courts can also consider whether it would be difficult for either parent to raise the child in the home country, a standard so vague that it potentially covers any other situation that can't be dealt with under the vaguely-defined rubric of "abuse" (indeed, it sounds very much like it could involve a "best interests of the child" inquiry of the type the convention is supposed to forestall).

The convention also allows a judge to refuse to return a child if he or she objects and has reached an age and degree of maturity that their views can be taken into account. I predict that "respecting the child's wishes" will be a recurring theme in justifying nonreturns, even in cases where the children are quite young. This is because one of the things I have long found depressing (OK, infuriating) about Japanese family courts is the frequency with which the well-educated, well-paid and supposedly well-intentioned people making decisions about children end up essentially foisting that responsibility on the children themselves. Respecting the wishes of the child again sounds very nice until you start asking whether it also applies to things like eating vegetables and going to school (or hey, saluting the flag and singing the national anthem while we are at it).

Different strokes

It may be helpful to look at Japan's proposed nonreturn reasons in another light. As everyone knows, Japan has exit controls. If a non-Japanese parent gets stopped at the airport because they are trying to leave the country with their half-Japanese children but can't prove the Japanese parent has consented, will saying "we need to return to my home country because my husband is abusive" be enough to convince immigration officials to let them on the plane? It seems unlikely, doesn't it? "You live in Japan; go to a Japanese court, get help from a Japanese domestic violence program" is a perfectly plausible official response here, yet it would be the exact opposite of how Japan proposes to deal with the same situation the other way around.

For those who think the above scenario is unlikely, it should be noted that under the MOJ proposal Japanese courts will be able to issue orders prohibiting a taken child from being removed from the country. This is not unreasonable — courts will likely want to prevent self-help remedies by LBPs that could just make things worse for the children concerned. However, the fact that the proposal allows taking parents to apply for such orders contributes to an overall picture of an implementation regime that assumes the taking parent is acting properly and needs to be protected until the LBP proves otherwise, subject to the handicaps of cost, distance and language that the convention is supposed to help alleviate.

Meet the new boss

Perhaps I am too pessimistic and Japanese courts will actually issue return orders. Whether they can be enforced is another matter. Here the proposed regime appears to start with the hope that taking parents will comply voluntarily with a return order. If this does not happen, the proposal envisions that the family court will do what they already do when their orders are being ignored: send someone to investigate the reason. This may result in the court issuing a "compliance recommendation" — a seemingly pointless suggestion that a party comply with the court order that is already being ignored.

If this has no effect (which is often the case, unsurprisingly), the final remedy available under the proposals is "indirect enforcement." This involves a court bailiff visiting the taking parent and seeking to take the child away from them. Noncompliance may result in the imposition of a fine, which is not very effective if the taking parent has no money or assets to seize.

The MOJ proposal is clear that bailiffs may not use any force on a child. Furthermore, the bailiff can only try to enforce the return order when the child is with the taking parent. This means that going to the child's school or day care and collecting the child there (a common abduction scenario) is not an option. The proposal thus apparently envisions that children must participate in the drama of their mothers being badgered into handing them over to some man from the court. Best interests indeed.

Habeas corpus, but toothless

To be honest, despite being voluminous, what leaps out about the MOJ and MOFA proposals is how little change they actually seem to propose. A great deal of what is being proposed seems to be things that Japanese courts and authorities could already do under existing law if they wanted to, reformulated in the context of the Hague. Japanese authorities could probably locate abducted children if they want to and courts already order mediation, indirect enforcement and so forth. In fact, in my view Japan could already be returning children without joining the Hague — all it would have taken is for the Supreme Court to allow for habeas corpus to be used to remedy international abductions, just as it is sometimes used in domestic abduction cases.

Habeas corpus, the "great writ" of Anglo-American law, is supposed to be a procedural remedy for arbitrary detention by police and other government actors, by empowering courts to expeditiously review the circumstances of detention and order the detainee to be immediately freed if it is unlawful. In Japan, however, with prolonged detention a common feature of criminal justice and one in which courts themselves are complicit, the use of habeas corpus is now safely limited mostly to situations in which the detaining party is not the government. In this form it has survived as an occasional remedy for parental child abduction cases.

Habeas corpus resolves many enforcement problems by subjecting the "detaining" parent to criminal penalties for failure to bring the child to court for a hearing, where they can be handed over to the other parent if the court so decides (in practice, if the court orders such a hearing it usually means that the decision to hand the child over to the other parent has already been made, rendering the hearing itself a meaningless formality).

The fact that the Supreme Court has never found an international case to meet the threshold of unlawfulness it deems necessary to grant habeas corpus relief — despite having separately found both domestic and cross-border abductions by a parent to be criminal kidnapping — is simply an indicator of a lack of will on the part of the Japanese judiciary, rather than a lack of statutory or procedural tools. Thus, while I suppose that Japan finally joining the Hague Convention should be viewed as a step forward, my expectations remain limited.

Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Send comments and story ideas to community@japantimes.co.jp


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