- Japan and The Hague Convention on International Child Abduction
- As more people began marrying internationally, the international divorces have also escalated. Such trend resulted to many serious problems such as where one parent took child from his home country after marriage breaks down and resists the other parent permission to see the child. In Japan number of foreign parents who are denied access to their children has increased.
In 2009, Japan was the only G7 nation not to have signed the 1980 Hague Convention on the Civil Aspects of International Child Abduction, a multilateral treaty which requires signatory governments to return children who have been wrongfully taken or wrongfully retained overseas should normally be returned promptly to their country of habitual residence. Numerous foreign national spouses, who have been denied access to their children, have said Japan’s refusal to join the treaty has turned it into “a haven for child abductors.” However, with the increasing number of international marriages and divorces, plus the pressure from many states, Japan finally ratified the Convention. On January 24, 2014, Japan became the 91st Contracting State to The Hague Convention on the Civil Aspects of International Child Abduction. And on April 14, 2014, the Japanese Law implementing The Hague Abduction Convention in Japan took effect.
What is The Hague Convention on the Civil Aspects of International Child Abduction?
The Hague Convention on the Civil Aspects of International Child Abduction was enacted on October 25, 1980. It is the vital civil instrument for person, institution, or other body who exercised custody over the child prior to the abduction and is seeking the return of the abducted child from other Contracting State.
The Convention stated its two purposes:
- To secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
- To ensure that rights of custody and access under the law of one Contracting State are effectively respected in the other Contracting State
For the treaty to be effective, both the home country of the child and the country where the child was abducted to must have signed the treaty. With Japan becoming a signatory nation to the Convention, parents of children who are abducted to or from Japan may now file a petition for the return of their child. Japanese Foreign Ministry will be obliged to locate the abducted child.
Flow of Procedure as explained in Ministry of Foreign Affairs Japan
- Assistance Provided by Central Authorities
A Contracting State is required to designate a government agency as the Central Authority to fulfill the obligations imposed by The Hague Convention. In Japan, the Ministry of Foreign Affairs assumes the role of Central Authority. A parent whose child is removed can make applications for assistance concerning return of the child and for assistance concerning access to the child at the Central Authority of his own state, or at a Central Authority of the state where the child is located. The Central Authority of the state where the child is located will screen the application, locate the whereabouts of the child and provide assistance towards friendly solution, including mediation in order to realize the return or visitation or contacts. The court, upon petition, makes a judgement on whether the child should be returned to the state of his habitual residence. When the court decides upon the return of the child, the Central Authority will provide support for safe return of the child to the state of his habitual residence.
- Procedure for the Return of the Child
If both parties fail to reach an agreement, the court will issue an order for the child to be returned to the state of his habitual residence in principle. However, the court might refuse to order the return of the child in an exceptional case, considering relevant information of the child living conditions, opinion of the child and arguments of both parties if any of the following conditions applies:
The petition is filed to the court after a period of more than one year has elapsed from the date of wrongful removal or retention and the child is now settled in a new environment.
The applicant was not exercising the custody right at the time of removal or retention.
The applicant had consented to or subsequently agreed in the removal or retention.
There is a grave risk that the return of child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
It is not permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.
Japan’s Central Authority will investigate and take steps to locate an abducted or wrongfully retained child on behalf of the parent. Further information can be found at: www.mofa.go.jp/fp/hr_ha/page22e_000250.html
Mizuno Kenji Patent & Law
If you are facing an international custody battle, Mizuno Kenji Patent & Law can assist in returning a child to a foreign state from Japan and vice versa in accordance with the provisions of The Hague Convention. We can be reached at: firstname.lastname@example.org
HCCH: Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: https://www.hcch.net/en/instruments/conventions/full-text/?cid=24
HCCH: Outline Hague Child Abduction Convention: https://assets.hcch.net/docs/e6a6a977-40c5-47b2-a380-b4ec3a0041a8.pdf
Ministry of Foreign Affairs: The Hague Convention (Convention on the Civil Aspects of International Child Abduction): http://www.mofa.go.jp/fp/hr_ha/page22e_000250.html
Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (Tentative Translation): http://www.moj.go.jp/content/000121368.pdf