Posts
Jeremy D. Morley
The recent decision of the Supreme Court
of Japan, in the Hague Abduction Convention case between James Cook and Hitomi
Arimitsu – which upheld the Osaka High Court’s revocation of its prior order
that four children wrongfully retained in Japan should be returned to their
habitual residence in the United States – vividly highlights the loopholes and
fundamental weaknesses in the Implementing Act under which the Convention was
brought into Japanese law and the resistance within Japan to acceptance of the
principles underlying the Convention.
Three years of intense litigation in
Japan, with additional litigation in the United States, accomplished nothing
except to freeze the father completely out of the lives of his children, to
devastate his finances, to have a judicial endorsement in Japan of an act of
international child abduction, and to deprive four children of their right to
have a father in their lives.
Such a result was completely predictable.
It resulted from several fundamental defects in the Japanese law.
The first is that the Implementing Act significantly
expanded the scope of the “grave risk” exception in Article 13(b) of the
Convention. It authorizes Japanese courts to consider economic and
psychological factors about the abducting parent and the abducted child in
determining whether the exception should apply. It elevates what is required to
be an extremely narrow exception into a broad defense. And it enables a
decision to be rendered without considering whether the authorities in the
habitual residence could provide any needed support and protection. The
Japanese expansion of the grave risk exception is Convention not authorized by
the Convention and violates the provisions of the Convention.
The second issue is that the purported
enforcement provisions in the Implementing Act are entirely ineffective. The
problem here is that Family Court orders have never been enforceable in Japan
except by occasional imposition of a modest fine. Family Courts operate on the
basis of conciliation and mediation, rather than by issuing orders that are
unlikely to be enforced or respected. By failing to enforce return orders,
Japan is violating Articles 1 and 2 of the Convention, which require
Contracting States to take all appropriate measures, and the most expeditious
procedures available, to secure the prompt return of children wrongfully
removed to or retained in any Contracting State.
The third factor is that the Implementing
Act expressly authorizes the trial or appeal court, even after they have ordered
a child’s return to the habitual residence, to overturn any such return order
by considering whether “it is no longer appropriate to maintain said
order due to change in circumstances” and, after a further
hearing, to order that the child shall not be returned. This provision is
entirely unprecedented. It violates Article 16 of the Convention, which bars a
court from treating a Hague case as a custody case, and the fundamental
obligation to resolve abduction cases as expeditiously as possible. It also encourages
abductors and sympathetic judges to thwart the prompt resolution of cases so as
enable facts to be created that may constitute a change in circumstances.
The fourth problem is that Japanese law
does not provide for legal aid or pro bono counsel for left-behind
parents.
All of these factors were responsible for
the ultimate result in the Arimatsu case.
The parties (an American father and a Japanese
mother) had lived together as a married couple in Minnesota, USA for at least 16
years and had raised their four American-born children there. In 2014, the
mother took the children to Japan for a visit and retained them there without
the father’s consent. He commenced a Hague case. The Osaka Family Court ordered
that two children should be returned while the two older children, who objected
to being returned, should stay in Japan. He appealed. The Osaka High Court then
ruled in his favor that all four children must be returned. It was a hollow
victory. The return order was unenforceable.
The father was required to use “indirect”
enforcement first, meaning the threat of a fine. The mother refused to comply
with the return order or pay the fine, and ultimately the father was permitted
to request “direct” enforcement. He had to return to Japan to participate in
the process. But the Implementing Act bars the use of force against a child or
against a taking parent if that could adversely affect the child. Direct enforcement
efforts failed. The court bailiffs merely reported that the children refused to
leave the mother’s apartment, and that there was nothing else that they could
do.
The mother then petitioned the Osaka High
Court to nullify its return order. She claimed that there had been a change of circumstances
since the prior return order, since the father’s house in Minnesota had been foreclosed
and he allegedly did not have the financial resources or family support to
provide a stable environment for the children in Minnesota. The father asserted
that his financial challenges had primarily resulted from the huge legal fees
and travel and related expenses that he had incurred in seeking the return of
his children. The Osaka court accepted the mother’s argument. It vacated its
prior return order on the ground that returning the children to the United
States would put them in a situation of grave risk of harm.
The Supreme Court of Japan upheld the ultimate
dismissal of the father’s petition. Unfortunately, the ruling merely sets forth,
in purely conclusory form, its decision that there had been a sufficient change
of circumstances to justify the vacatur of the original return order. The
decision was rendered three years after the abduction and 2½ years after the
initiation of the Hague case.
In a supplementary opinion, Judge Koike
upheld the decision not to return the children on grounds that appear to make
it clear that in his opinion the courts should consider matters concerning the
best interests of the children in a Hague case. That view would appear to be in
direct contravention of the purpose and the terms of the Convention.
The father testified before Congress in
April 2017 that he had had no access whatsoever to his children since a visit
in August 2015. Indeed, I understand that he has had no contact thereafter.
It is essential to the Hague process that
decisions are made and enforced expeditiously. Unfortunately, the Arimitsu case demonstrates that it is far
too easy for abducting parents to delay the process, and then to profit it by
asserting that there has been a significant and subsequent change of
circumstances. Unfortunately, the Supreme Court of Japan has now endorsed that
conduct. The consequences of such a decision are exacerbated with respect to
Japan because there is no meaningful impediment against a Japanese parent in
then barring the left-behind parent from all access to the children. Indeed,
since Family Court orders are practically unenforceable in Japan, and since
“possession is 99% of the law” in this regard, a Japanese parent in such
circumstances will typically feel compelled to cut the children off from any
and all contact with the other parent.
