Mise en relation de parents privés de leur enfant

Japan to sign Hague Treaty on Kids

mai 26th, 2008 Posted in Law

Source: http://www.japaninc.com/tt469

Two weeks ago, the Japanese government made a notable announcement that may make Japan more compatible with the legal conventions used internationally, and will be of particular benefit to non-Japanese spouses of Japanese.
The announcement was that by 2010, Japan would sign the the 1980 Hague Convention on Civil Aspects of International Child Abduction, an international legal construct that attempts to deal with the thorny issue of court jurisdiction when children of international marriages are moved cross-border, often by a parent trying to thwart a court ruling in the previous jurisdiction.
Currently, Japan is known as a haven for disaffected Japanese spouses who, in getting divorced, abscond with their kids back to Japan. Once in Japan they can dare their foreign spouses to try getting the kids back — something that despite around 13,000 international divorces a year in Japan and more overseas, has NEVER happened.
The reason for this astounding statistic, that of zero repatriations of abducted children from international marriages after the kids have been abducted to Japan, is entirely to do with the attitudes of the Japanese judiciary and their wish to maintain 19th Century customs in the face of international pressure. Japan has ratified many parts of the Hague Convention treaties over the years, but in terms of repatriation of kids, they have been claiming for 20 years now to be « studying » the issue. That’s Japan-speak for « we’re not interested in making any changes ».
Our guess is that the recent announcement occurred after pressure from the USA and Canada, in particular. Things started to come to a head about 5 years ago, when fed up by repeating occurences of child abductions from both of those countries, and despite court decisions there for custody to go to the local parent, the consular staff of a number of these foreign embassies started holding annual summits to discuss the problem. These discussions escalated to pressure on foreign governmental agencies and politicians in some of Japan’s biggest trading partners — and finally someone spoke to the Japanese government at a sufficiently high enough level to get their attention.
The subject became especially sensitive when the Japanese were at the peak of their indignation over the North Korean abductions of Japanese citizens several years ago, and were seeking international support. All the while, Japanese law allowed similar types of abductions here.
In case you’re not up on the state of play, there were 44,000 international marriages registered in Japan in 2006, and probably a good percentage of that number again of Japanese marrying overseas but not bothering to register back in Japan. The divorce rate within Japan is about 30%, and for Japanese living overseas (take the US as an example), it is typical of the local population, so more like 50%-60%. Thus there are a lot of international separations — many of which are not amicable.
But it’s when the kids are involved that things start getting really nasty. Usually in the case of a divorced international couple going to court overseas and after custody is awarded, if one of the parents fears a possible adbuction situation, the couple can be placed under a restraining order not to travel without the other spouse’s consent. The USA, Canada, Australia, and UK all do this. The kids’ passports will often be withheld as well. Unfortunately, there have been a number of cases where the Japanese spouse then « loses » the kids Japanese passports and applies to the local consulate for replacements — only to hop a flight back to Tokyo a few hours later, with the kids in tow.
Once in Japan, the jurisdiction suddenly falls to the Japanese courts, even if there is a foreign arrest warrant out for the absconding partner, and in several cases, even if there is an Interpol arrest warrant out. In Japan, there is no concept of joint custody, and the partner allowed to keep the kids is the one that has held them for the previous few months.
The courts’ opinion here is that kids need a stable environment, and the act of being the only guardian for a period of time, even if that guardian was in hiding, qualifies for this — unless the kids are under 5 years old, in which case they will typically be returned to the mother (if the father is the abscondee), or to the father if the mother has deceased. But not always. There are cases where the Japanese mother has died and the Japanese grandparents have kept the kids, instead of returning them to the foreign father. You can read more about this sad state of affairs at http://www.crnjapan.com/en/.
You won’t believe that this kind of thing is still going on in a first-world country like Japan in the 21st century.
The Japanese court attitude thereby encourages Japanese spouses wanting to hang on to their kids to hightail it back to Japan and lie low for 6 months. Currently there has been no case, even after the Japanese Supreme Court has awarded rightful custody to the foreign parent, where that aggrieved foreign parent has been able to go get their kids back. The reason is quite simply that Japan doesn’t have a mechanism for properly enforcing civil suit judgments, and typically a breach of an order in a civil suit does not result in the offender being subject to a subsequent criminal suit.
Thus, the Hague Convention on child abduction provides a mechanism whereby if children are illegally removed from their country of habitual residence, they must be returned, and the jurisdiction for subsequent court decisions is taken out of the hands of the Japanese courts. This is the first step in making international court rulings involving kids, stick.
We believe that this is going to be a long and slow process, but once the treaty is signed and the first few cases start to be heard, either the kids involved will be returned or the parent trying to hang on to them will create an international brouhaha that will highlight to the world the lack of protection of rights for international parents here in Japan. Who knows, maybe this will start another process — that of allowing foreigners actually residing within Japan to also regain the simple right of access to their children after a divorce.
But in reality we think this level of change will take several more generations and a lot more foreigners living in Japan to achieve…

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