Posts
Jeremy D. Morley
There is great misunderstanding about the ability of
a parent outside Japan to obtain access to a child in Japan through the Hague
Abduction Convention.
The Hague Convention contains only one provision
(Article 21) concerning visitation. That Article states little more than that
an application to make arrangements for organizing or securing rights of access
may be presented to the Central Authorities of Contracting States.
Japan’s statute implementing the Convention into
Japanese law states that an application may be filed under the Convention for
visitation only (a) with respect to a child who is located in Japan, (b) who was,
immediately before the visitation became unable to be made, a habitual resident
of another Hague country, (c) by a person who is entitled to such visitation
under the laws of said state other than Japan.
Essentially what all of this means is that no Hague
Convention access application can be made in Japan if the child is habitually
resident in Japan at the time the alleged right of access has been violated.
This is confirmed by the Japanese Ministry of
Foreign Affairs’ own explanation of the visitation provisions of the
Convention. This states that an access claim in Japan should be dismissed unless
the applicant is entitled to visitation or contact with the child under the
laws of the state where the child held his or her habitual residence immediately before the visitation could
not be made.
This means that whenever a child is taken to Japan
and becomes habitually resident there within the meaning of Japanese law, no
access claim can be made under the Hague Convention.
The parent outside Japan will then have no right to
see the child except by bringing a regular custody case in a Family Court in
Japan and must expect that, even if such
a claim is ultimately successful , it will (a) almost certainly be limited to
visitation in Japan itself (visitation outside Japan has never been ordered by
a Japanese court, to my knowledge), (b) will probably be limited to a few hours
a month, (c) will be probably be
strictly supervised in a courthouse or other specific location, and (d) will most likely be unenforceable in
Japan.
If a child living outside Japan is lawfully
relocated to Japan (whether by court order or parental agreement) the habitual
residence of the child will shift to Japan relative quickly after the
relocation.
At that point it will be unclear whether the parent
outside Japan “is entitled” to visitation under the law of Japan. If there is
not even a foreign court order requiring such access there will be no such
right in existence. If there was a prior foreign order that purported to make
provision for such access, the parent living outside Japan will be entitled to
commence a court proceeding in the Family Court in Japan to ask the court to
recognize and enforce the foreign custody order. However, the other parent in Japan will be
entitled to ask the Japanese court to assume full custody jurisdiction, since
the child will be habitually resident there, and to issue a new custody order
that would exclude any provision for contact by the other parent.
Alternatively, the parent in Japan will be able to start a new custody case in
Japan at any time after the child is settled in Japan and to ask the court
there to give unlimited sole custody to such parent.
Accordingly, any expectation that Japan’s accession
to the Hague Convention allows parents outside Japan to secure access to their
children lawfully living in Japan is quite mistaken.
