Posts
Jeremy
D. Morley[1]
Japan adopted the Hague Abduction Convention with
effect from April 1, 2014. Before then, its reputation as a safe haven for
international child abduction was almost universal. Japan yielded to
international pressure by signing the Convention but its compliance with the
treaty is questionable.
A few cases have been initiated in Japan under the
Convention. Unfortunately decisions in Hague cases in Japan are not being
officially reported, are private and are not accessible.
The U.S. State Department has reported that in 2015
there were no court-ordered returns of children from Japan, and that there were
three voluntary returns. In one case, although a Japanese court ordered a
child’s return to the United States, the order was not enforced.
Custody orders in family law cases in Japan are
unenforceable. It is regarded as beyond the function and responsibility of the
State to interfere with the privacy of family life. Accordingly, the drafters
of Japan’s Act for Implementation of the Convention on the
Civil Aspects of International Child Abduction had to create enforcement
processes for the first time in Japan. This explains in part why the
Implementing Act is unusually long.
However, the provisions concerning enforcement did
not succeed in the only case reported by the U.S. State Department in which a
court in Japan issued an order that a child should be returned to the U.S. The
State Department has stated that, “In 2015, Japan failed to comply with its
obligations under the Hague Abduction Convention in the area of enforcement of
return orders. A Japanese court issued the first Convention return order to the
United States in early 2015. Authorities attempted, but were unable to
effectuate enforcement of the court order by December 31, 2015, exposing what may
be a systemic flaw in Japan’s ability to enforce return orders.”
Another extremely serious concern is that Article 28
of Japan’s Implementing Act expands
the scope of the Article 13(b) exception in several significant respects.
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.
Finally, I 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, there is grave cause for concern.
[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.
