Originally published on metropolis.co.jp on May 2012The Japanese government is moving closer to joining the 1980 Hague Convention on the Civil Aspects of International Child Abduction (HCCH), an international treaty aimed at preventing child abduction. But early signs throw up doubts that signing the agreement would have any impact on cases in Japan at all.
In early March, the Cabinet Office approved a bill that, if passed, spells out what would happen once Japan signs the agreement. The proposed legislation states that if a Japanese parent takes their child from a partner in another country, a Japanese family court could order that child returned. However, there are numerous conditions that would make it next to impossible for overseas parents to get their children back.
First, the overseas parent must travel to Japan and make their appeal to a Japanese court. That appeal could be denied if more than a year has passed since the child was taken. The court might also refuse if the return could harm the child mentally or physically, or if the child refuses to be returned. The gray areas in these conditions are likely to make it difficult to convince a Japanese court to let a child leave.
“It’s pretty depressing,” says Colin P. A. Jones, a professor at Kyoto’s Doshisha Law School, who has seen the proposed bill. “It seems pretty clear that Japan is going to [sign] based on a number of assumptions that conflict with those of the Hague Convention.”
In recent months, the US, Canada and various European nations have pushed Japan to join the treaty, which has already been signed by every other G8 nation. Japan has argued that Japanese citizens need to be protected from domestic abuse first before the accord is implemented.
This is a striking objection, considering the Hague already provides safeguards against abuse. Article 13b states that a return request would be denied if there is “a grave risk that (the child’s) return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
The key element to the Hague treaty, though, is that the burden of proof concerning abuse falls on the fleeing parent. Japan’s proposed law means the parent trying to get his or her child back would be guilty until proven innocent.
“The implementation regime is basically going to assume that the taking parent has a good reason—they’re going to protect the taking parent until the left-behind parent proves otherwise,” says Jones. “I don’t see it really making any changes.”
In fact, child abduction itself could be argued as a form of abuse. “Studies show that maintaining contact with non-custodial parents is beneficial for children’s well-being,” says Kazuyo Tanase, clinical psychologist and professor at Kobe Shinwa Women’s University.
“Parents with no custody should be able to spend substantial amounts of time with their children, not just several hours a month,” she continues. “Secondly, couples shouldn’t be allowed to separate or get divorced without a parenting plan in place. Finally, couples should be able to choose between sole custody and joint custody.”
Since 1994, the US State Department’s Office of Children’s Issues has opened 230 cases involving 321 children abducted to or wrongfully retained in Japan. The State Department warns: “To date, the Office of Children’s Issues does not have a record of any cases resolved through a favorable Japanese court order or through the assistance of the Japanese government.”
Joining the Hague Convention should be a positive step towards ending the scourge of child abductions to Japan. But if the spirit of the treaty is not honored, then Japan will continue to be known as a “black hole” for child abduction for years to come.
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