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Friday, May 14, 2010
CUSTODY OR ABDUCTION?
Experts divided on signing 'parental kidnapping' treaty
By MASAMI ITO
On the FBI's Web site there is a section for "parental kidnapping," listing parents, including Japanese women, wanted for allegedly kidnapping their own children.
Japan has been the target of international criticism for not signing the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which aims to secure the prompt return of children wrongfully taken out of the country of their "habitual residence" by a parent.
After the Democratic Party of Japan took power last year, government leaders started giving serious consideration to signing the treaty, but experts are divided on whether this would be a good idea. Some say Japan should join as soon as possible, but many — even those who basically favor the convention — have expressed concern, citing systemic, legal and cultural differences. With so much at stake, it doesn't seem likely Japan will be signing the treaty anytime soon.
William Duncan, deputy secretary general of the Hague Conference on Private International Law and a noted expert on the child abduction treaty, says there is nothing technically stopping Japan from signing the treaty and the country should join as soon as possible because not doing so leaves children at risk.
Eighty-two countries are members of the Hague Convention, including the United States, the United Kingdom, Canada and France. China is counted among them, but really only Hong Kong and Macau are party to the treaty. Of the Group of Eight countries, Japan and Russia are the only two that haven't signed.
"Every country has challenges (when joining the Hague Convention) and none of what I heard here about the challenges that Japan faces is particularly exceptional," Duncan said in an interview during a visit to Tokyo in March. "We will always encourage states to come in as quickly as they can because we know from our experience that this does save children from harm."
If Japan were to sign the treaty, one of the things it must do is appoint a "central authority" to deal with the issue of international parental abduction, he said.
At the moment, such cases involve multiple agencies, including both the Justice and Foreign ministries.
A Justice Ministry official said signing on to the convention would necessitate numerous changes, including setting up a system for handing over children and determining how far the central authority would be allowed to go in searching for those allegedly abducted by a parent.
"Even if Japan decides to join the treaty, there are many technical issues that need to be considered and it won't be easy to overcome," the official said, adding, "Japan should engage in thorough discussions of the pros and cons of the Hague Convention instead of just giving in to international pressure."
It is estimated there are about 200 active cases involving Japanese, among them 40 dealing with Canada, 83 with the United States and 38 with the United Kingdom, according to the embassies of those countries. The Foreign Ministry said it is aware of 35 cases involving France.
Left-behind parents "go through hell, absolute hell," said Duncan, who has worked with a number of such people. "It is an enduring wound to have a child taken from you in circumstances where there is no justification for it. It is a terrible thing to see and a terrible thing to live with. . . . It's a situation of constant anguish."
But attorney Kensuke Onuki, an expert on the issue who has represented Japanese mothers who have brought their children to Japan, said he is against joining the treaty because it would in principle force the children to return to their home country.
Onuki points out the "taking person" is usually the mother, and almost all of the cases he is currently dealing with involve "domestic violence, unjust control and verbal abuse."
"Why a woman would flee with her child back to her parents' home, leaving everything including assets, is because she can't stay," Onuki said. "And the biggest key as to why a Japanese mother would leave is not because she is scared for herself but because the child becomes mentally unstable."
Article 13 of the convention does stipulate that children will not be returned if there is a risk it "would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."
Duncan says fleeing from an abusive environment is not classed as an abduction.
Onuki, however, says Article 13 has only been applied to extreme cases of child abuse, arguing that the treaty is based on the rights of parents while the welfare of children is sidestepped.
"What is important is to consider what is the best situation for the child and not the rights of the parents — whether it is better for the child to live in Japan with his or her mother, or live with the father abroad," Onuki said. "But the Hague Convention does not allow that consideration. The only situation that will stop a child from being returned is if the child would be raped or physically abused" by the left-behind parent.
Another issue that has raised concern is the Western concept of joint custody, as opposed to Japan's sole custody system.
Article 819 of Japan's Civil Law stipulates that in a divorce, one of the parents gets custody of the child, in most cases the mother, while many Hague members have a joint-custody system.
In Japan, there is no specific clause in the Civil Law covering the parent without custody, but he or she can seek visitation rights.
There are problems with this system, however, because mothers often refuse fathers visitation rights and something needs to be done about it, including establishing a stronger system to ensure those rights are upheld, Onuki said.
But that doesn't mean Japan should revise the Civil Law and jump to create a joint-custody system, he added.
Revising the Civil Law "would fundamentally change Japan's family system, and that is pretty difficult to do," Onuki said.
Experts have questioned the benefits of complete joint custody, which gives equal rights to both parents to the point of tossing the child back and forth, legally splitting time to secure the parents' rights.
Attorney Mikiko Otani, an expert on family law who ultimately supports joining the Hague Convention, said she used to be enthusiastic about adopting a joint-custody system in Japan, but the more she studied other countries' examples the more she realized various aspects merit discussion.
"Children should definitely have interaction with both parents," Otani said. "But I think children should have a stable base. On one hand we have to come up with a way to secure a stable home for children of divorced parents, but on the other hand we need to make sure that the children maintain a loving relationship with both parents."
Otani, also an expert on international human rights law, said she also has some concerns about how the treaty is implemented, including how the return of children is handled if the mother refuses to give the child back to the country of habitual residence.
"The Hague Convention doesn't say tear the child away from a parent, but the aim of the treaty is the expeditious return of the child, and in some countries the mother can be arrested," she said.
Otani agrees that the convention is based on the principle of returning the child and only in very extreme violent cases has the Article 13 defense been successfully invoked. The interpretation of Article 13 could be expanded to cases where mothers are victims of domestic violence, but it is not explicitly recognized in the treaty, she added.
"The Hague Convention is rigid and focuses so strongly on the prompt return of the child that I wonder if there needs to be room for flexibility to serve the best interests of the child," she said.
Otani, who currently handles cases on behalf of left-behind parents abroad and here, said that even though she has some mixed feelings about the Hague Convention, Japan should ultimately follow the international norm.
"At present, Japanese mothers are being called kidnappers and have been put on the internationally wanted criminal list, living in constant fear of having their children taken away," she said.
"I doubt that situation is good for the children. . . . By signing the treaty, I think Japan can resolve this issue within the rules of the common international framework called the Hague Convention."