Posts
Jeremy
D. Morley[1]
A few cases have been initiated in Japan under the
Hague Abduction Convention. Unfortunately decisions in Hague cases in Japan are
not being officially reported, are private and are not accessible.
There have been newspapers reports about two cases of
voluntary returns from Japan -- one to Germany and one to Canada -- and about a
case in Osaka in which a court issued a return order but the return has been
stayed pending an appeal.From discussions with colleagues and consular officials in Japan it appears that no case there has yet determined or analyzed concerning the critical issue of the “grave risk” exception.
The serious concern in this regard is that Article 28 of Japan’s Act for Implementation of the Convention on the Civil Aspects of International Child Abduction expands the scope of the Article 13(b) exception in several significant respects.
Thus, although the Convention provides that “grave risk” is not an absolute defense, but merely provides a court with a right, in the exercise of the court’s discretion, to choose not to return the child to its habitual residence, the Japanese law eliminates that discretion.
The Japanese law also adds three “circumstances” that a court “shall consider” whenever the grave risk defense is asserted. These are:
i.
The first such circumstance is that
courts are directed to consider whether there is “a risk” (but not a grave
risk) that the child would be subject to “violence” if returned to the state of
habitual residence, and defines violence to include “words” as well as “deeds”
and “physical or psychological harm.” This emphasis on mere risk directly
contradicts the treaty language.
ii.
The second circumstance
is if there is “a risk” that the taking parent “would be subject to violence
etc. by the petitioner” in the state of habitual residence. However, the
language of the Convention limits the scope of the grave risk exception to a
risk to the child, not to a parent of the child.
iii.
The third special element that a
Japanese court must consider in a Hague case is, “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.” However, this
“circumstance” is entirely beyond the scope of the Convention..
Likewise, there seems to have been no case in which
the new provisions concerning enforcement in the implementing legislation have
been tested. Custody orders in Japan are unenforceable. The drafters of the
legislation implementing the Hague Convention were required to create
enforcement processes for the first time in Japan, which explains in part the
fact that the statute is unusually long. The provisions concerning enforcement
have apparently not been implemented in any specific case.
I also understand that all access cases are being
submitted to the regular Family Courts pursuant to the regular procedures for custody
cases and that the mediation that is required to be conducted in such cases is
the regular mediation process rather than the expedited mediation that has been
set up for Hague return cases. Unfortunately,
mediation in family cases in Japan is generally, in my experience, extremely unhelpful,
time-consuming and onerous for non-Japanese litigants. Accordingly, parents
with access claims are generally extremely disappointed that their plight has
not been improved. All in all, it is too soon to determine the extent to which Japan is in compliance with its obligations under the Hague Abduction Convention.
[1] Jeremy D. Morley is an
international family lawyer in New York who works with family lawyers
throughout the United States and globally. He is the author of two leading
treatises on international family law, International
Family Law Practice and The Hague Abduction
Convention. He frequently testifies
as an expert witness on the child custody law and legal system of countries
around the world, including India, Japan, China and Western Europe. He may be
reached at jmorley@international-divorce.com.
