Wednesday, March 14, 2018

Supreme Court of Japan and the Hague Abduction Convention

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.