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Tuesday, June 7, 2011
THE HAGUE TREATY
Hague treaty seeks to balance rights of kids, parents
By MASAMI ITO
Prime Minister Naoto Kan's administration said in May it would establish legislation as part of preparations for Japan joining an international convention to prevent cross-border abductions of children by their parents.
Despite international pressure to sign the 1980 Hague Convention on the Civil Aspects of International Child Abduction, Japan had been reluctant amid strong opposition from politicians in the ruling and opposition parties, experts and Japanese mothers who took their children to Japan after failed international marriages.
Japan's decision was welcomed by the international community, but it is still unclear whether the country will actually be able to sign the treaty anytime soon.
What does the treaty entail?
The Hague treaty aims "to secure the prompt return of children wrongfully removed to or retained in" a member state. The treaty covers children up to age 15.
A typical example of what the treaty tries to address would be a case in which an international marriage has failed and one of the spouses takes offspring out of the country where the child has been living without the consent of the other parent. Such a physical removal may also be in defiance of a court custody decision, such as in cases of divorce when both estranged spouses have certain custody and visitation rights.
If offspring are spirited away from a country, the parent who thus lost custody would file an abduction complaint with the government, or "central authority" that handles such matters.
If both the nation that the offspring are removed from and the one they are taken to are Hague signatories, the designated central authorities of the two nations would seek to ensure the safe return of the child to its "habitual residence."
But if the nation where offspring are taken to is not a member of the treaty, such as Japan, it is not obliged to hand over the offspring. This can cause bilateral friction on a political level, and also lead to charges of felony abduction being leveled at the parent who took the child or children away.
As of April, the treaty had 85 signatories, including Australia, Brazil, New Zealand, South Africa and Spain. Of the Group of Eight countries, only Japan and Russia have refused to join.
What prompted Japan to move toward joining the Hague treaty?
Although not the first child abduction case involving a Japanese parent, an incident in September 2009 brought Japan's stance on the issue into the international spotlight.
Christopher Savoie of Tennessee came to Japan to reclaim his children from his Japanese ex-wife, who had brought them to the country without permission.
Savoie was arrested by Japanese police for allegedly attempting to "kidnap" minors, but prosecutors didn't file criminal charges against him. The case was widely reported by both the foreign and Japanese media and became a bilateral diplomatic headache.
International pressure to sign the Hague treaty has increased since then.
According to the Foreign Ministry, there are 100 cases involving Japanese spouses who took their children to Japan from the U.S., 38 who brought offspring here from the U.K., 37 from Canada and 30 from France. But these are just the numbers reported to the ministry. The actual number is believed to be higher and to stretch back many years.
Why has Japan been reluctant to sign the treaty?
The government feared that Japanese mothers who claimed to have been victims of domestic violence would be forced to return their children to the abusive environments they fled from.
"If Japan were to sign the Hague Convention, (my child would) be forced to live with an abusive father and be exposed to violence again," said a women who attended a government panel discussion on the Hague treaty in March. "And I will become a (declared) criminal."
The Hague treaty in principle is geared toward returning offspring to their country of habitual residence.
Cultural and legal differences have also been noted, as many Western countries have a joint-custody system. Japan uses a system that grants sole custody, usually to the mother.
Are there circumstances under which a child is not returned to the country of residence?
-Article 13 also says a state is not obligated to return a child if "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."
But experts have pointed out that the clause is vague and opponents argue that it does not include abuse against mothers.
According to the data collected by the Hague Conference on Private International Law released in 2008, only 20 percent of all global return applications were either rejected or judicially refused.
How will Japan address the strong concern about cases of domestic violence?
The outline of a draft bill approved by the Cabinet stipulates that the return of the child will be denied if the child has experienced physical or verbal abuse "and is in danger of being subjected to further abuse if returned to its habitual residence."
In addition, the child will not be returned if the spouse has been the victim of "violence that caused the child to suffer from psychological trauma" and that the parent was in danger of further abuse if he or she returns with the child back to the country the offspring was taken from.
Experts, however, noted that the conditions for rejecting the return are extremely strict.
"The draft lists various conditions, not making it easy for the spouse to claim domestic violence to make sure that the child would not be returned," attorney Mikiko Otani said. "And the parent would also need to prove that there was domestic violence."
What are the positive aspects of Japan joining the treaty?
There are Japanese parents whose children have been taken away to another country by their ex-spouses. Japan, not being party to the treaty, has been powerless to rectify these situations.
Otani, an expert on family law, pointed out that there are many cases in which the ex-spouse is from a member country of the convention and that government has the responsibility to deal with these international parental kidnapping cases.
In Japan, the responsibility falls on the individual because Tokyo has not signed the treaty.
Otani also expressed concern that if Japan continues to delay joining the treaty, other member states will take harsher measures.
In the U.S., for example, several Japanese mothers are on the FBI website, wanted for "parental kidnapping."
"I think it comes down to the fact that the Hague treaty is the active international rule," Otani said. "If Japan refuses to join the convention, all the (member states) can do is make sure that the children cannot be taken out of their countries. They already have a tendency to do so, but I think they will make it even harder for the children to leave."
In many cases, court orders are issued ordering the child not to leave the country.
Does this mean that Japan will immediately conclude the convention?
No. Even if the Japan signs the treaty, it needs Diet ratification. Related bills must also be drafted and passed.
According to the draft legislation, the "central authority" will be the Foreign Ministry, which will be in charge of overseeing cases related to the Hague treaty, including locating abducted children, taking measures to prevent child abuse and advising parents on the voluntary return of children.
But there is still strong domestic opposition among the public, as well as in both the ruling and opposition camps, and it is unclear how soon Japan will be able to conclude the treaty and enact related domestic laws.
If Japan joins the treaty, would it apply to current cases?
No. The treaty will only apply to cases that are brought against Japan after it signs the Hague Convention. Experts say it will be up to the government to decide how to handle the cases that occurred before Japan signs the treaty.
Otani pointed out that there were cases in which the mothers eventually want their children to make the most of their dual nationality, such as visiting the country they were taken away from, but can't for various reasons, including the mother's fear of being arrested if she were to accompany the offspring to a nation where she is listed as a fugitive.
"It may be impossible to resolve all cases or return the children, but there may be some fathers who would just be happy to be able to have access to their children," Otani said. "The benefits of these children are being robbed . . . and I think that it is necessary to establish a (bilateral) scheme for those who want to resolve their case so that the children" can visit both countries freely.
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