The Hague Abduction Convention and Japan's nebulous family law

  • E-mail E-mail
  • Google+
  • Reddit Reddit

Japan ratified the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“Convention” or “Hague Abduction Convention”) in January 2014,[1] after decades of resistance and.[2] The Convention was developed by the Hague Conference on Private International Law (HCCH)[3] and is designed to ensure that signatory states follow Convention procedure to quickly return children that have been abducted across international borders.[4] The Convention’s objectives generally focus on parental abductions.[5] As of January 2016, 93 states were signatories to the Convention.[6] The HCCH identified the need for such a convention due to increased numbers of child abductions as a result of “the ease of international travel, the increase in bi-cultural marriages and the rise in the divorce rate.”[7] When one parent abducts a child and travels to another country, particularly a country with a different legal system and/or without agreements and procedures in place to return children, the other parent faces serious legal and practical obstacles to seeing the child again.[8] The Convention assumes that it is usually in the child’s interest to return to his or her state of “habitual residence.”[9]

The Convention sets up a procedure returning abducted children and is premised on signatory states’ cooperation in enforcing and executing the Convention protocols. A parent requesting a child’s return must meet specific criteria; if those criteria are met, the member state issues a return order for the abducted child and assists in locating, returning, and/or facilitating a resolution of the abduction situation.[10] The return order is not a custody determination, but the criteria for the order are based on the home state’s custody laws.[11]

Barbara Stark
Hofstra University Professor Barbara Stark argues that Japan's
implementation of the Hague Abduction Convention will prompt
its courts to enshrine its custody policies more clearly in law.
Photo via Hofstra University.

In issue four of the North Carolina Journal of International Law, Hofstra University Professor Barbara Stark addresses Japan’s recent accession to the Hague Abduction Convention.[12] Japan’s resistance to the Convention stemmed from its domestic family-law system, which conflicts with the Convention’s concepts of court involvement in custody issues. Japanese domestic family law is minimal; key features include a reliance on mediation and “pressures of social norms” rather than the court system, a tendency of courts to reject joint custody (generally granting sole custody to the mother with no rights to the father), and a lack of procedure to deal with situations that involve foreign parents.[13] japan had also asserted a need to protect mothers fleeing from situations of domestic violence.[14] The Convention primarily deals with situations of abuse through an exception clause in Article 13(b): It is within the discretion of a given state’s court or administrative body to refuse a return order if it is established that “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.”[15] Domestic courts have varied in construing “harm to the child,” with some courts requiring actual harm to the child only in a narrow interpretation, while other courts have required potential harm to the mother to satisfy the requirement of harm to the child.[16]

Recent scholarship suggests that Japan may continue its traditions of domestic family law in interpreting the broad language of the Convention and its exceptions, even though it is now a signatory.[17] Professor Stark discusses the Convention's relevance in light of Japanese family law's current state.[18] Although Japan has been criticized for its delay in implementing Convention obligations, Professor Stark posits that several key assumptions by the Convention’s original drafters are no longer accurate. Thus, a more nuanced examination of the substance of recent criticism—of both Japan’s response and of the Convention itself—is required to understand the contours of Japan’s accession.[19]

In particular, Stark argues that the preference for granting sole (maternal) custody and lack of domestic law or policy on joint custody is likely to influence Japanese judicial interpretation of the Convention and return order requests.[20] Japan had come under significant international pressure to join the Convention in recent years, with its decision to finally ratify almost certainly a primarily political decision: Child abductions to Japan from signatory states in North America, the UK, and France increased in the past decade, prompting significant pressure from signatory state governments and fathers’ rights groups.[21] Although the drafters assumed that fathers would constitute the majority of abductors, custodial mothers actually account for the most abductions.[22] A number of well-publicized cases involve Japanese mothers returning to Japan with their children.[23]

Professor Stark also points out that—as noted above—the Convention itself has been widely criticized for its failure to fully account for the potential for returning children to situations of domestic violence. However, Japan preempted this issue by enacting legislation that allows a court to take domestic violence—including verbal abuse into its consideration of Article 13(b) exception claims.[24]

A UK court in London applied the Convention for the first time to a Japanese child in July 2014, ordering a Japanese mother to return to Japan with the child to resolve custody issues following a divorce and estrangement.[25] In May 2015, Japan’s Foreign Ministry reported that it had received far fewer reports of child abductions since the Convention took effect, with 110 requests under the treaty, and 41 of those requests pertaining to return orders (twenty-five for children taken to Japan and sixteen for children taken out of Japan).[26] Ministry officials credited the treaty with having probably prevented abductions to Japan.[27]

[1] Japan Signs and Ratifies the 1980 Hague Child Abduction Convention, HCCH (Jan. 24, 2014), [].

[2] See Status Table, HCCH (Mar. 16, 2016), []; Jeremy D. Morley, Japanese Family Law—or the Lack Thereof!, L. Office Jeremy D. Morley, []. Japan was the last member of the Organization for Economic Cooperation and Development, the leading international organization for developed democracies, to ratify the convention, two years after the Republic of Korea and more than a decade after any other OECD member. See Status Table, supra; List of OECD Member countries, Org. Econ. Cooperation & Dev., [].

[3] The names of forty conventions, protocols, and principles reference The Hague, where such compacts are frequently negotiated and signed. Another is the Statute of the Hague Conference on Private International Law. Conventions, Protocols, and Principles, HCCH, []. The Hague (Dutch: “Den Haag”) is the seat of the Netherlands’ national government. “HCCH” is an abbreviation for Hague Conference/Conference de La Haye and is the acronym used by the organization. See Hague Conference on Private International Law: The World Organisation for Cross-border Co-operation in Civil and Commercial Matters, HCCH, [].

[4] Child Abduction Section, HCCH, [].

[5] See Outline: Hague Child Abduction Convention, HCCH, []; Hague Convention on Civil Aspects of International Child Abduction, [].

[6] Status Table, supra note 2. Member States are those that have accepted the Statute of the Hague Conference on Private International Law. Signatory States are those that are Members and have acceded to the Hague Abduction Convention, along with any other States that have acceded. See FAQ, HCCH, [].

[7] Outline: Hague Child Abduction Convention, supra note 5, at 1.

[8] Id.

[9] Id.

[10] Id. at 2.

[11] See id. (stating that a prima facie case is established by proving (1) that “the child was habitually residing in the other State (2) that the removal or retention of the child constituted a breach of custody rights attributed by the law of that State, and (3) that the applicant was actually exercising those rights at the time of the wrongful removal or retention.” The Convention gives discretion to refuse an order to remove even if the requirements are met, especially in cases of risk of harm to the child).

[12] Professor Stark is in her eleventh year of teaching at Hofstra Law and is an expert on international family law, having published numerous chapters, articles, and books on the topic. Forthcoming books include Human Rights and Children and The Ashgate Research Guide to International Family Law (with Jacqueline Heaton, ed.). Hofstra Law Directory: Barbara Stark, Hofstra, [].

[13] See, e.g., Morley, supra note 2; see also Chandra Zdenek, Comment: The United States versus Japan as a Lesson Commending International Mediation to Secure Hague Abduction Convention Compliance, 16 San Diego Int’l L.J. 209 (2014).

[14] See Megan J. Reynolds, Note: It Can Be Done: On Japan Becoming a Successful Signatory to the Hague Convention on the Civil Aspects of International Child Abduction, 44 Geo. Wash. Int’l L. Rev. 367, 369 (2012) (identifying the fact that the Convention allows domestically abused women to be returned to their husbands as Japan’s “main objection” to becoming a signatory).

[15] The “person, institution or other body which opposes the return” has the burden of establishing the grave risk. Convention on the Civil Aspects of International Child Abduction, HCCH art. 13(b) (1980), [].

[16] See Reynolds, supra note 14, at 387–90 (the trend appears to be toward a broader interpretation of Article 13(b), and one that might officially be recognized by the Commission charged with the operation of the Convention); see also HCCH, Conclusions and Recommendations and Report of Part I of the Sixth Meeting of the Special Commission on the Practical Operation of the 1980 Hague Child Abduction Convention and the 1996 Child Protection Convention (1-10 June 2011) 129 (Nov. 2011), [].

[17] See Zdenek, supra note 13, at 216.

[18] See Barbara Stark, Foreign Fathers, Japanese Mothers, and the Hague Abduction Convention: Spirited Away, N.C. J. Int'l L. (forthcoming 2016).

[19] See id.

[20] See Reynolds, supra note 14, at 378–79; see also Stark, supra note 18.

[21] Reynolds, supra note 14, at 380–81; see Stark, supra note 18.

[22] See Stark, supra note 18.

[23] Id.

[24] Id.

[25] Takuya Kitazawa, Hague Child Abduction Treaty Applied for 1st Time to Japanese Child at British Court, Asahi Shimbun (July 30, 2014), [].

[26] Masaaki Kameda, Number of Reported Child Abductions Down “Drastically” a Year After Hague Convention, Japan Times (Mar. 26, 2015), [].

[27] Id.

Posted by Jennie L. Cunningham on Thu. May 12, 2016 1:56 PM
Categories: Children's rights, Hague Convention, Japan

Comments for this post are now closed.

UNC School of Law | Van Hecke-Wettach Hall | 160 Ridge Road, CB #3380 | Chapel Hill, NC 27599-3380 | 919.962.5106

If you are seeing this, you are either using a non-graphical browser or Netscape 4.x (4.7, 4.8, etc.) and this page appears very plain. If you are using a 4.x version of Netscape, this site is fully functional but lacks styles and optimizations available in other browsers. For full functionality, please upgrade your browser to the latest version of Internet Explorer or Firefox.