The Hague Abduction Convention in Belgium

The following are excerpts, without footnotes, of an article published in the Judges’ Newsletter on International Child Protection Vol. XX, Summer – Autumn 2013.

The full article is available on the website of the Hague Conference on Private International Law.

Concentration of Jurisdiction under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Belgium

By Myriam DE HEMPTINNE, Judge at the Brussels Court of Appeal, Brussels

When Belgium implemented the Hague Convention of 25  October 1980 on the civil aspects of international child abduction  (hereinafter the 1980 Child Abduction Convention), it added  a chapter to the Act of Assent of 10 August 1998 added to  the Judicial Code (Belgian Code of Civil Procedure) entitled “Applications relating to the protection of cross-border rights  of custody and of access” containing new Articles 1322 bis to octies. In that chapter, the legislature organised an emergency  procedure “as in summary proceedings” to deal with return  applications pursuant to a wrongful removal or retention. This  emergency procedure also dealt with applications relating to  the organisation of rights of access based on the 1980 Child Abduction Convention, together with applications based on  the European Convention of 20 May 1980 on the recognition and  enforcement of decisions concerning custody of children and on  restoration of custody of children (hereinafter the Luxembourg Convention). That procedure was assigned to the purview of the President of the Court at first instance at the location of the child’s presence.

The provisions of that chapter were revised and supplemented by the Belgian legislature when the EU Regulation of 27 November 2003 concerning jurisdiction and the recognition and  enforcement of decisions in matrimonial matters and matters of parental responsibility (“Regulation Brussels IIa”) was implemented, with the passing of the Act of 10 May 2007.

At the time, the Minister of Justice established a working group, including judges in particular, in the capacity of experts in the field. After the bill was drafted by that working  group, the legislature, faced with increasing complexity in this area of law, chose specialisation of judges and a concentration of jurisdiction, in the image of other EU Member States which had done so previously (including France and Germany, mentioned in the preparatory documents). The motives before the vote on that act are clear from the Justice Commission report, which explains that “this choice is due to the need to reinforce our courts’ effectiveness in an area growing more complex by the day. Knowledge of the instruments and international case-law,  speed of intervention, reinforcement of direct cooperation  among the judges in the various Member States, leading to reinforced confidence in the judicial systems, demanded that  specialisation of the courts” (Bill, Chamber Parliamentary Documents, session 2006-2007, 51-3002/001, p. 44 [French version]).

The Act of 10 May 2007 accordingly concentrated jurisdiction with the Courts at first instance established at the locations of Courts of Appeal (Brussels, Mons, Liege, Antwerp and

Gent) and, in those cases where the proceedings are to be held in the German language, the Court at first instance of Eupen. These cases, previously assigned to the 27 Presidents of different courts (matching the 27 judicial circuits of the country), are now, starting at the first instance, assigned solely to 6 lower-court Presidents, it being understood that on appeal, the proceedings are handled by one of the country’s five Courts of Appeal.

The new Article 1322 bis of the Judicial Code lists the proceedings for which this concentration of jurisdiction is now to apply:

- applications based on the Luxembourg Convention for the recognition and enforcement of decisions concerning custody and restoration of the custody of children;

- applications based on the Hague Convention of 25 October 1980, for immediate return of the child, for observance of the custody rights or rights of access existing in another State or for the organisation of a right of access;

- applications for the child’s return or custody pursuant to a decision to deny return delivered in another EU Member State under Article 11 of Regulation Brussels IIa;

- applications on the basis of Article 48 of Regulation Brussels IIa, for determination of the practical terms of exercise of a right of access; and

- applications on the basis of Article 28 of Regulation Brussels IIa for recognition or enforcement of decisions relating to rights of access or return of the child.

Only the last of those proceedings may be brought unilaterally (Article 1322 bis § 2), the others requiring initiation by means of an application inter partes (Article 1322 bis § 1).

As regards territorial jurisdiction, the passing of the new Act was an opportunity to specify, by the addition of the new Articles 633 sexies and septies to the Judicial Code, that the case is to be brought before the President of the Court at first instance, established at the location of the Court of Appeal within the circuit of which, as the case may be:

- the child is present (Article 633 sexies): this situation relates to return proceedings, when Belgium is the requested State;

- the child has its habitual residence at the time of filing or sending of the application (Article 633 sexies): this situation concerns only proceedings relating to issues of custody or the recognition and enforcement of foreign decisions, or failure to abide by rights of access, since a wrongful removal or retention may not result in a transfer of the child’s habitual residence;

- the child had its habitual residence immediately before the wrongful removal or retention: this situation concerns the procedure established by Regulation Brussels IIa in the State of origin after a decision denying return delivered in the requested State (Articles 633 septies and 1322 decies § 1); or

- the defendant has his or her domicile or habitual residence, if the child is not present in Belgium: this solution provides for proceedings for recognition and enforcement of a decision delivered in another Member State (Article 633 septies). 

This concentration of jurisdiction, with a view to the specialisation of judges, should enable Belgium to meet its international obligations in the best possible manner.

The Hague Abduction Convention in Australia

The following are excerpts, without footnotes, of an article published in the Judges’ Newsletter on International Child Protection Vol. XX, Summer – Autumn 2013.

The full article is available on the website of the Hague Conference on Private International Law.

Concentration of Jurisdiction under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Australia

By The Honourable Diana BRYANT AO, Chief Justice of the Family Court of Australia and The Honourable Justice Victoria Bennett of the Family Court of Australia

…

Judicial structure and operation of the 1980 Child Abduction Convention

Family law cases are heard by the Family Court of Australia, which is the superior court of record, and the Federal Circuit Court,  which is the trial court. The Family Court of Australia is a specialised court comprising the Chief Justice, the Honourable Justice Diana Bryant, the Deputy Chief Justice and 31 Judges. It sits directly below our supreme court, the High Court of Australia (which comprises the Chief Justice and 6 Justices). The Family Court hears appeals and cases of long duration or of such complexity as renders the case unsuitable for determination by the trial court.

Pursuant to a Protocol between the Family Court and the Federal Circuit Court, all Hague abduction cases are dealt with by the Family Court of Australia as are international relocation cases. Accordingly, in Australia jurisdiction to hear abduction cases at first instance is concentrated to 23 justices of the general or trial division of the Family Court. An appeal from the first instance decision lies to the Appeal Division of the Family Court comprised of three judges often comprised of two Appeal Division judges and a judge from the General Division. An appeal from a decision of the Full Court of the Family Court to the High Court of Australia requires leave of the High Court. To date, leave has been sought in 19 Hague abduction cases but granted in only six.

 The Commonwealth Central Authority in Australia for the 1980 Child Abduction Convention is the same as the Central Authority for the 1996 Child Protection Convention work and is a person appointed within the Commonwealth Attorney-General’s Department. Another person is appointed to be the Central Authority for the work of the 1993 Adoption Convention. The Commonwealth Attorney-General designates a person in each of the States and Territories to be the State Central Authority for the 1980 Child Abduction Convention work within that State. This is usually the secretary or head of the state’s child welfare department. Accordingly, a State Central Authority has at its disposal the services of trained child protection workers, emergency accommodation and a working relationship with the police. Through the Commonwealth Central Authority, the State Central Authorities have access to some official records, such as immigration records from which it can be determined when a child entered or departed Australia as well as social security payments.

Abduction applications are prosecuted by the State Central Authority. The left behind parent is not required to pay for the costs of the prosecution (Article 26). A left behind parent may prosecute their own case, to the exclusion of the State Central Authority, but it is most unusual. Accordingly, almost every abduction case is prosecuted by a model litigant who has extensive experience in Hague abduction cases. This results in a concentration of expertise in prosecution work. Unlike some other Contracting States, legal aid bodies in Australia do not maintain a panel of specialist lawyers whom they will fund to act for abducting parents to defend the application. Accordingly, the standard of defence work is varied. Where a child is represented in a Hague abduction proceeding, which is exceptional, that representation is funded by the legal aid authority of the state or territory in which the child is located. It is the authors’ experience that, within our state of Victoria, independent children’s lawyers have extensive experience in international child abduction matters and a personal commitment to undertake the work to a high standard. Skilled representation of the child’s interest is essential where an abducting parent fails or neglects to raise an issue for determination such as the jurisdictional facts of habitual residence or right of custody or an exception to return.

Benefits resulting from concentration of jurisdiction

By concentrating jurisdiction to hear Hague abduction applications to the superior, specialist court, hearings can be allocated more quickly and case managed more directionally than they can be in the high volume trial court.

Case management and the ability to expedite the hearing of abduction applications are important because our supreme court, the High Court of Australia, has eschewed

a purely summary determination of return applications.

Consequently, it is not uncommon for a final hearing to run for between 1 and 3 days and involve commissioning reports by social scientists, other expert evidence and taking cross examination from overseas outside court sitting hours.

We find that the other benefits of the concentration of jurisdiction are:-

• the efficiency with which judicial education about recent developments within the Hague community as well as recent decisions in other Contracting States can be delivered;

• the ability to familiarise our judges with the operation of the International Hague Network of Judges and the ability to facilitate general or direct (case specific) judicial communications between our court and the relevant judge in the Contracting State of habitual residence via the International Hague Network of Judges. This is particularly valuable to implement conditions for return, schedule a preliminary hearing in the home State and other safe harbour measures;

• the ease of delivery of information about mediation of abduction cases within our jurisdiction. This specialised mediation must be facilitated, if it is to be facilitated at all, at very short notice so as to not delay any judicial determination of the case. It is usually only available through a small number of service providers who can operate at minimal or no financial cost to the participants and who can provide a co-mediator in each Contracting State (eg. International Social Service) or who have the technology to convene the required number of sessions (often three) through audio visual connectivity;

• as a superior court of record, it should be apparent to the courts of other Contracting States that any determination of our Family Court is authoritative and not prone to reversal by multiple rulings after further contests in higher courts. The authoritative nature of our determinations aids enforcement, Article 15 requests and direct judicial communications around conditions for return and safe harbour measures.

We appreciate the benefits of the determination of Hague abduction cases being concentrated in our one specialist and superior court. Likewise, we appreciate the relative ease of dealing with other Contracting States who have, over the last 20 or so years, taken the significant but very constructive step of concentrating jurisdiction to determine these cases to a specific court or level of court within that State. Most respectfully, our experience is that in Contracting States where jurisdiction is concentrated, the 1980 Child Abduction Convention is implemented with a higher degree of cohesion between the executive and judicial arms of government and the judicial determinations from the courts in those States around core concepts of habitual residence, rights of custody and, say, grave risk of harm are more consistent and more timely than those which emanate from States where jurisdiction is diffuse.

Testimonials

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“I returned to New York with my 3 year old son from England following a Hague Convention trial. … My initial telephone consultation with Jeremy Morley gave me the confidence that not only was he an expert, but that his advice was totally honest, realistic and clear. I knew what my options were and what to expect. For my personal situation he recommended his associate Anne Glatz to take on my case…. I now have full custody and permanent relocation to the UK. Throughout what has been the most difficult and lonely time in my life, having someone I could trust has been invaluable not only for me, but my family waiting in England. I have not once doubted her dedication, professionalism and expertise in all aspects of child law and International custody and relocation.”

For more, check out http://www.international-divorce.com/testimonials.htm

Malaysia: Child’s Best Interests Subordinated to Religious Manipulation

By Jeremy D. Morley*

In Malaysia the sharp split between two judicial systems for child custody cases, with custody cases between Muslims being conducted before Shariah courts while other cases are conducted before civil courts, the Shariah rules that favor Muslims, and uncertain rules and practices as to whether a child may be unilaterally converted to Islam, have provided non-Muslim fathers in Malaysia with a devious ploy to procure sole custody of their children. They convert to Islam, then purport to convert their children to Islam and then petition the Shariah courts for sole custody. Article 121(1A) of the Malaysian Federal Constitution  provides that the Civil High Courts in Malaysia have no jurisdiction in respect of any matter that falls within the jurisdiction of the Syariah Courts.

In one such battle that is ongoing and has lasted for five years so far – reported in the article below  – even though the High Court in Malaysia ruled in favor of the child’s mother, the Malaysian police are refusing to enforce the return order.

* Jeremy Morley handles many international family law matters between the United States and Malaysia, always acting with local counsel as appropriate, and has provided expert witness testimony as to Malaysia’s child custody laws. 

MALAYSIA INSIDER

BY MUZLIZA MUSTAFA

Published: 23 June 2014

IGP defies court order in inter-faith child custody battle

Despite a court order to locate and return a child in an inter-faith custody battle, Tan Sri Khalid Abu Bakar (pic) maintained his earlier stand that police will not comply with it as there were two conflicting verdicts in the case.

The Inspector-General of Police said he will not act on the Ipoh court order instructing the police to reunite Prasana Diksa with her Hindu mother M. Indira Ghandi.

Indira’s ex-husband, Muslim convert Muhammad Ridzuan Abdullah, had secured custody of the child from the Syariah court.

Khalid said that the matter is being looked into by Putrajaya and he wished not to comment further on the matter.

"The fact remains that there are two conflicting verdicts. The matter is being looked into at the moment. I am not saying that police will not take action. I just wish not to comment on it at the moment," said Khalid in a press conference at a function at University Teknologi Mara in Shah Alam today.

Khalid stressed the same point even when pressed further by the media.

"You guys are waiting for me to say something else? I wish not to comment further," said Khalid.

Khalid was served with the court order directing police to locate and hand over the daughter of a kindergarten teacher entangled in an inter-faith child custody dispute four days ago.

Lawyer M. Kulasegaran representing Indira, said the High Court order was served on Khalid to instruct his men to locate Indira’s ex-husband Muhammad Ridzuan Abdullah in any part of the country and hand over the child, Prasana Diksa (Ummu Habibah), to the mother.

"This order speaks for itself and we hope the police will give effect to the court order immediately," Kulasegaran told The Malaysian Insider last week.

Indira obtained the order two weeks ago following Khalid's statement that minors in inter-faith child custody cases should be placed in childcare centres to be fair to both parents.

Khalid had earlier said police will not act on orders from either the civil or syariah court in such cases as police were “sandwiched” between two court systems.

On May 30, High Court judge Lee Swee Seng found Ridzuan guilty of contempt and gave him one week to hand over their daughter to Indira, or face imprisonment.

Ridzuan defied the order when he failed to turn up in Ipoh upon expiry of the deadline to hand over the child.

Indira had also applied for a recovery order to compel police to get Prasana from Ridzuan, who is said to be in Kota Baru, Kelantan.

Indira had filed contempt proceedings last year against Ridzuan, who was previously known as K. Patmanathan, for refusing to hand over their daughter.

In 2010, the High Court granted custody of their three children – Tevi Darsiny, 16, Karan Dinish, 15, and Prasana, 3 – to Indira.

Ridzuan has held on to Prasana since April 2009. The girl was 11-months-old at the time.

Ridzuan had, in 2009, obtained custody of the three children from the Shariah High Court after he unilaterally converted them.

However, in July last year, Judge Lee quashed the certificates of conversion as unconstitutional.

Hague Abduction Convention Victory in France

Jeremy Morley*

We are delighted that, working with our esteemed colleagues in France, we succeeded in securing a ruling yesterday from the French Tribunal de Grande Instance de Paris in favor of our client in New Jersey, USA that the parties’ child must be returned home to New Jersey and that the child’s mother must pay significant costs.

In other cases there have been serious difficulties in France with the enforcement of such Hague Convention return orders and we hope that nonetheless the child in this case will be returned forthwith.

*We handle many international family law matters between the United States and France, always acting with local counsel in France and other U.S. states as appropriate. 

Hong Kong Follows English Law on Prenuptial Agreements

Jeremy D. Morley*

The Hong Kong Court of Final Appeal has issued an important ruling in a case concerning the potential impact of antenuptial and separation agreements in Hong Kong.  SPH v. SA (formerly known as SA) [2014] HKCFA 56 (9 June 2014).Such agreements were once considered at common law to be contrary to public policy because they ousted the jurisdiction of the court to grant ancillary relief.

In a case concerning the impact of a German prenuptial agreement between German nationals, the Court of Final Appeal expressly ruled that the decision of the UK Supreme Court in Radmacher v Granatino [2010] UKSC 42, [2011] 1 A.C. 534 – giving qualified effect to prenuptial agreements – represents the law in Hong Kong.

The Hong Kong court held that the existence of the German prenuptial agreement and also a German separation agreement was plainly a factor to consider on the husband’s application to stay the Hong Kong divorce proceedings on the ground of forum non conveniens. However, apart from the agreements, the real and substantial connection of the parties with Hong Kong was overwhelming. The Judge at first instance had failed to give appropriate weight to the factors connecting the parties, the marriage, and the matrimonial home with Hong Kong and, therefore, the intermediate Court of Appeal had appropriately refused to stay the case.

However, while it approved of the Radmacher ruling the Hong Kong court did not clarify that ruling.

Indeed, despite Radmacher – and particularly because of its entirely ambiguous “unfairness” get-out clause – courts in England continue to be most unpredictable in their attitude to prenuptial agreements.

In Luckwell v Limata (2014 EWHC 502 Fam), for example. the English court nullified a prenuptial agreement between a wealthy heiress and her impecunious ex-husband, because he “needed” substantial funds to place a most substantial roof over his head.

* Jeremy D. Morley handles many family law matters between Hong Kong and the United States, always working with local counsel as appropriate

Notable Hague Convention Decision for Our Client in the 5th Circuit

The 5^th Circuit, Court of Appeals has affirmed an order under the Hague Abduction Convention that children must be returned from Texas to Panama, resulting in a victory for our client.  What follows is a synopsis of the facts of the case and the Appellate Courts ruling.  In the Interest of SHV and PJVC, Children (05-13-00864-CV) is significant for its rulings on the age and maturity exception in the Convention. 

The family, all U.S. nationals, had been living in Panama when Father and Mother separated in 2010.  Father started a custody case in Panama, the result of which gave Mother custody with Father having visitation/possession of the children every weekend.  The order prohibited the children from leaving Panama.  In August 2012, Mother removed the children from Panama to Texas, and Father filed a petition under the Hague Convention in Dallas County seeking return of the children to Panama.  The trial court granted Father’s petition and awarded him travel expenses and attorney fees. 

On appeal, Mother argued that the trial judge abused her discretion by ruling that Panama was the children’s habitual residence.  The 5^th Circuit applied the Gitter test, which requires a two-pronged inquiry; the last “shared-intent” of the parents and whether the children have acclimatized to a new location and thereby acquired a new habitual residence (despite any conflict with any shared intent).  Mother argued that there was no shared intent to remain in Panama, yet the facts demonstrate that the family lived in Panama from 2006 through 2012 and the 5^th Circuit found that the trial judge did not abuse her discretion by concluding that the last shared intent was to make Panama the children’s habitual residence.  As to the second prong, the court ruled that there was no record evidence that the children had acclimatized to life in the United States in the five months that passed before Father filed his Hague petition.

Mother also argued that the trial judge erred by not denying Father’s petition based on the “age and maturity” defense under the Hague Convention, which allows a judge to deny a petition for a return if he or she finds by a preponderance of the evidence that the child objects to being returned and has attained an age and degree of maturity that make it appropriate to consider the child’s views.   The only evidence introduced below was a psychological report containing an opinion that SHV’s maturity was higher than average for a boy of almost ten.  Yet, although the report contained several passages of quotations/statements made by SHV, none distinctly objected to a return to Panama and the 5^th Circuit found that although it would be reasonable to conclude that SHV prefered the United States over Panama as he did not find life there unpleasant and thus evidence that a child has a generalized desire to stay in one country rather than another does not compel a court to apply the age and maturity defense. 

Mother further argued that the trial judge erred by failing to grant her motion for an in camera interview with the children and her motion for the appointment of a guardian ad litem.  However, these motions were filed less than an hour before the court was scheduled to hear Father’s petition, neither were ruled on, and ultimately the 5^th Circuit ruled that, since Mother did not preserve a potential error (by making proper action to make the trial judge aware of the complaint and obtain a ruling-either express or implied), the Court is precluded from making an implicit ruling on that aspect of Mother’s argument.  Mother’s counsel did mention her desire for an in camera interview during the hearing, but did not mention the motion, did not follow through with the request, did not preserve error as to this motion, did not make an offer of proof as to what the children might say (rendering the 5^th Circuit unable to tell if any error was harmful), and made no showing that that she had made any arrangements for the interview (which would have had to been by telephone since the children were in Panama at the time). 

Hence, the 5^th Circuit rejected Mother’s appeal.  Our client is delighted.  

Japan and The Hague Abduction Convention: Implementation and Practical Effects

by Jeremy D. Morley*

On April 14, 2014, the Japanese law implementing the Hague Abduction Convention in Japan took effect.

That act, referred to in this article as the “Implementing Act” states that, “A person whose rights of custody with respect to a child are breached due to removal to or retention in Japan may file a petition against the person who takes care of the child with a Family Court to seek an order to return the child to the state of habitual residence pursuant to the provisions of this Act.”  The Japanese Family Courts will then require the advocating attorney to submit a power of attorney with the original motion, as well as a clearly written statement regarding the cause of action and the supporting evidence.

The Implementing Act does not define the key term of “habitual residence.”  Determining the child’s habitual residence is a threshold issue in any Hague Abduction Convention case, and if the court determines that the country from which the child was removed was not his or her place of habitual residence, the Convention will not apply and the petition should be dismissed.  There has been enormous diversity as to how this phrase has been interpreted in various United States courts (it is always very fact-sensitive), but there is some precedent in Japan via lower courts that have made decisions regarding the phrase when deciding which applicable laws to apply in certain cases.

An essential element of any case under the Convention is that, “pursuant to the laws or regulations of the state of habitual residence, said removal or retention breaches the rights of custody with respect to the child attributed to the petitioner.”  The Japanese family law system uses two separate, but similar provisions regarding custody and parental responsibility. Article 818(3) of the Japanese Civil Code provides that, “Parental authority shall be exercised jointly by married parents.” This means that while the parents are married they have joint shinken, which is commonly understood to mean parental authority. A person who holds shinken rights has the duty to care for and educate the child (Article 820), the right to determine the child’s residence. (Article 821) and the right to administer the child’s property (Article 824).  If a child is born out of wedlock, generally only the mother possesses shinken rights (unless the parents agree or a court orders that the father has shinken). If the parents are married, the shinken is commonly decided via court order after a divorce and is usually granted only to one parent. 

In addition to shinken the Civil Code employs the term Ko no Kango ni Kansuru Shobun, often referred to as kangoken. Kangoken comprises rights somewhat akin to physical custody. While the parents are married and cohabiting, kangoken is part of shinken and is exercised jointly by both parents. However, Article 766 of the Civil Code authorizes a court to divide kangoken from shinken, perhaps giving the father shinken rights akin to legal custody and giving the mother kangoken rights akin to physical custody.

This aspect of Japanese family law will likely lead to challenging issues in cases in which children are alleged to have been abducted out of Japan.

The Implementing Act contains provisions concerning the “grave risk” defense that are extremely troubling. Article 13(b) of the Convention provides that a court is not bound to order the return of the child if the person, institution, or other body which opposes its return establishes that . . . (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise would place the child in an intolerable situation.”

The Perez-Vera Explanatory Report on the Convention states that the grave risk defense must be “interpreted in a restrictive fashion if the Convention is not to become a dead letter.” However Article 28(2) of the Implementing Act contains extremely broad language, instructing a court when considering the grave risk defense that it should “consider all circumstances such as those listed below:

 (i) Whether or not there is a risk that the child would be subject to the words and deeds, such as physical violence, which would cause physical or psychological harm (referred to as "violence, etc." in the following item) by the petitioner, in the state of habitual residence;

 (ii) Whether or not there is a risk that the respondent would be subject to violence, etc. by the petitioner in such a manner as to cause psychological harm to the child, if the respondent and the child entered into the state of habitual residence;

 (iii) Whether or not there are circumstances that make it difficult for the petitioner or the respondent to provide care for the child in the state of habitual residence.”

Subsection (iii) of Article 28(2) is particularly disturbing since it opens the door to a consideration of factors that should have little or nothing to do with a Hague case. If the Japanese courts were to apply subsection (iii), or to otherwise provide an overly broad interpretation of the grave risk exception, Japan would be in violation of the treaty obligations that it has assumed by joining the community of nations in becoming bound to the Convention.

As to the “child’s objections” defense under the Convention, Japanese family courts regularly use internal investigators, chousakan.  If a judge finds it necessary to examine the objections of a child, it is very likely that a report will be ordered from the chousakan.  This report’s conclusions will probably be given great weight by the court in deciding whether to order a return or not.

If there is a risk that a party may remove the child from Japan prior to the end of the case, a court may rule that the child must remain in Japan until a decision has been rendered (a ne exeat order). A court can also order that the passports of the child should be retained by the Minister for Foreign Affairs, and it can suspend other proceedings related to the matter that may be pending elsewhere. 

The Implementing Act contains provisions to promote mediation of Hague Convention cases. A grave concern in this regard is that, although mediation in conventional divorce and custody cases is used extensively in Japan, it has proven to be an extremely difficult process for non-Japanese parties. It is greatly to be hoped that mediation will not be forced upon left-behind parents in Hague cases and will not be used to delay such cases or to pressure non-Japanese parents to accept unfair proposals.

If a return order is issued, it will take effect after notice to the parties, which becomes enforceable only after “the expiring of the period for filing an immediate appeal.”  This immediate appeal must be filed within two weeks. If ultimately denied, the order will be enforceable and any seized passports will be returned to the respondent. 

Most unusually, the Implementing Act contains extensive provisions for enforcement of a return order. It is quite unprecedented in the arena of family law matters concerning children for Japanese courts to issue orders that can be enforced against an unwilling defendant. This, child custody and visitation orders in Japan have traditionally been unenforceable. The drafters of the Enabling Act were required to write detailed legislation that for the first time provides enforcement mechanisms for court orders in this area. Time will tell whether they prove to be effective.

*Jeremy Morley has represented very many Japanese and non-Japanese clients throughout the United States and in many countries elsewhere, always in collaboration with local counsel, in international family law matters concerning Japan. He has also submitted expert evidence to numerous courts on international family matters concerning Japan and on Japanese child custody law.