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Wednesday, Feb. 8, 2012
Bills could render Hague toothless
Family court judges may get easy out if abuse evidence isn't needed
Japan may sign the Hague Convention, but if planned new laws for ratifying the treaty fail to compel family court judges to adhere to its principles, the whole exercise could be meaningless, legal experts and people whose children have been victims of parental abductions say.
"The legal principle of the Hague Convention is to always return the child unless there is clear and convincing evidence that this default presumption of return can be rebutted because of imminent danger of grave harm to the child," said Christopher Savoie, a Tennessee resident whose Japanese former wife illegally took the couple's children to Japan.
"That rebuttal can and should be very hard to prove in court."
The Hague Convention on the Civil Aspect of International Child Abduction guarantees the repatriation of children of parents in failed international marriages who are spirited away by an estranged spouse. Both parents can then discuss custody and other details in family courts of the original country.
Supporters of Japanese parents, generally wives, who have taken their children out of the country where they lived while married, often say they are victims of domestic violence who do not want to face family court-style proceedings in a foreign country in a language they don't fully understand with abusive ex-partners present.
The Hague Convention's Article 13, Section B, stipulates that the request for a child's return can be countered 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."
The draft, approved by the Justice Ministry's Legal Council on Tuesday, has a passage identical to Article 13, Section B.
Lawyer Takao Tanase said the draft makes it easy to rebut a return request. Specializing in child custody issues pertaining to divorced couples, he said he has seen many cases in which family courts appear to easily side with claims of abuse.
"Japanese family court judges sometimes recognize domestic arguments as verbal violence, but what couples who are facing divorce don't argue?" Tanase said.
Japanese judges also sometimes recognize a one-time slap to the face as violence and grounds for granting sole custody of children to the one who was struck, he said.
Such events are unlikely to happen in other countries because family court-level judges overseas use different criteria for acknowledging abuse, he said.
"For example, the U.S. changed laws in ratifying the Hague Convention. The laws say courts cannot reject return requests unless there is 'clear and convincing evidence' of abuse," Tanase said. "Adjectives 'clear' and 'convincing' make a certain impact on family court judges' mindset."
The draft created by the Justice Ministry's panel does not contain those adjectives. The draft, meanwhile, spells out concrete situations that would fall under Article 13, Section B.
One such situation is basically that parents who abducted children are victims of violence at the hands of their former partners, and children would be traumatized by witnessing the violence.
Tanase said the provision is not problematic because he believes abuse victims must be protected. However, he hopes passage of the laws will not encourage judges in Japan to continue to tend toward recognizing abuse without sufficient proof.
The Justice Ministry aims to submit bills based on the draft by the end of March.
The U.S., Canada and European countries have repeatedly urged Japan to sign the treaty and improve the situation.