Japan has
not yet ratified the Hague Abduction Convention. The Japanese Cabinet has today
reportedly approved the ratification but the necessary legislation has not yet
been passed by the Japanese Diet (Parliament).
The issue
of Japan’s joining the Hague Convention is still controversial in Japan. Many
members of the Diet are flatly opposed to the treaty on the ground that it will
lead to the imposition of “Western thinking” on family relationships in Japan,
i.e. that it might lead to the intervention of the courts into the private life
of families, to the issuance of judicial orders concerning family matters that
can be enforced by the power of the state, and to both parents having
meaningful rights to their children after a divorce or separation.
Accordingly,
newspaper editorials in Japan have demanded that, when Japanese wives “flee”
foreign countries because of alleged domestic violence abroad, they must not be
forced to return to the country where such abuse has occurred.
Such
concerns have already led to inclusion of a provision in the draft legislation
that is most likely to lead to an unnecessarily broad interpretation of the
“grave risk” exception in Article 13(b) of the Convention. Indeed, that
is the intended result.
The result
of such an exception would be to shield abductors who are able to claim
domestic abuse even though:
(a)
The legal system in the (American) habitual residence would provide an abuse
victim and child with very substantial protection;
(b) No
change is being made in Japan to the lack of any meaningful provisions in
Japanese law for the other parent to have any access to the child or any
decision-making role in the life of the child, so that in reality the foreign
left-behind parent would still be without any meaningful rights to the child;
and
(c) There
is no meaningful system within Japan to effectively determine the merits of
such claims of abuse.
In
addition, there is a serious concern that petitioning parents will be forced
into mediation before being allowed to proceed with or complete their judicial
case. There are special provisions in the draft legislation promoting
mediation. If the mediation process works similarly to the current Family Court
mediation process it will lead to lengthy delays and extreme unfairness to
petitioning parents.
Mediation
is generally an extremely unhelpful forum for foreigners in family law cases in
Japan, since (i) foreign parties must appear in person regardless of their
place of residency, (ii) the sessions are usually short and are repeatedly
adjourned for lengthy periods of time, necessitating multiple inconvenient and
expensive visits to Japan, (iii) the foreigners’ views are generally
misunderstood for language and cultural reasons, and (iv) the foreigners
are pressured to accept unfair terms since there is no enforcement of court
decisions in family law matters in Japan and because they are told that their
refusal to accept the mediators’ recommendations will be held against them in a
trial.
When most
other countries have joined the Convention the United States could choose
whether or not to accept the accession. If a country has not enacted
satisfactory legislation designed to effectively enforce the terms of the
Convention other countries need not accept the accession. Such is the case with
Thailand, which acceded to the Convention in 2002 but has not yet enacted
implementing legislation satisfactory to the United States or several other
countries. By contrast, as an original member of the Hague Conference, Japan
will not be acceding to the Convention, but will ratify it which will trigger
its immediate entry into force without any place for international review.
Meanwhile,
the Japanese public is being told that even if Japan signs the Convention, “The
return of a child can be denied if the parent seeking it is believed to abuse
the child or have difficulties raising him or her.” Daily Yomiuri, Mar. 16,
2013. If that is the gloss that Japan intends to put on the Hague Convention
– even though the Convention is expressly designed to secure the
expeditious return of all abducted children except in extremely unusual cases –
there is little or no point in Japan’s purported ratification of the treaty.
The result
of Japan’s ratification of the Convention will likely be to create the
appearance of Japan’s compliance with international norms but without any of
the substance.