Background of the Implementaion of the Domestic Law
The Convention on the Civil Aspects of International Child Abduction (the “Convention”) was ratified at the Hague Conference on Private International Law in 1980 and entered into force in 1983. As of May 2013, contracting states to the Convention (“Contracting States”) include as many as 90 countries, including the USA, Canada, all the member states of EU, Thailand, Singapore and Korea. Japan has been the only G-8 nation that has not signed the Convention.
When an child is abducted from their country of habitual residence and brought to a Contracting State, or where the child is not permitted to leave a Contracting State to return to their country of habitual residence, the Convention is designed to oblige such Contracting State to promptly return the child to the country of habitual residence on the basis that it would be in the child’s best interests to do so.
In Japan, when a marital relationship is ending, the primary caregiver (usually a mother in Japan at present) would often trigger a separation from their spouse by taking their children with them to their parents’ home (known as “Homecoming with Children”). In these cases, a Japanese court is apt to maintain the status quo and rule that the child should continue to be taken care of by the parent who removed the child. For example, in one case, a mother X filed for the designation of custody and return of her four-year old daughter A after having commenced a separation from her husband Y by taking A away with her, A was eventually found by Y and returned with him to the child’s habitual residence. In this case, the Osaka High Court, in a June 22, 2005 ruling, ruled in favour of Homecoming with Children by noting that “X had primarily taken care of A from A’s birth to her separation from Y; therefore, there is no wonder X left their marital home with A in order to keep taking care of A as she separated from Y, and her action is not something blamed for” (underline added) and consequently dismissed Y’s appeal to the order of the lower court to designate X as A’s custodian and return A to X.
Additionally, many Japanese court precedents with regard to international cases support, as a conclusion, Homecoming with Children from foreign countries to Japan. On the other hand, there are several cases where non-Japanese parents have been arrested on suspicion of kidnapping when they attempt to retrieve a child abducted from their country of habitual residence by their Japanese parent. These cases have been reported in the foreign media and have caused international controversy1. Moreover, this issue has often caused political strife between Japan and other countries; thus the Japanese government had been requested to ratify the Convention as soon as possible by many countries in the world2.
In view of this situation, the Japanese government ratified the Convention on May 22, 2013, and passed the Law Concerning the Implementation of the Convention on the Civil Aspects of International Child Abduction (the “Domestic Law”) which takes effect on April 1, 2014.
Summary of the Domestic Law
Assistance in Securing the Return of the Child
The Domestic Law designates the Japanese Foreign Minister as the “Central Authority” provided for in the Convention. A parent who is left behind (Left Behind Parent or “LBP”) may seek the Japanese government’s assistance in securing the return of the child, including obtaining information about the location of the child, by either applying to the Central Authority of the country where the child was habitually resident having such application transferred to the Foreign Minister of Japan or by applying directly to the Japanese Foreign Ministry.
Cases Regarding Return of the Child
LBP may apply to a Japanese Family Court for an order to return the child. The Family Court which receives an application shall order the return of the child if it finds all the following causes are met (the “Causes for Return of the Child”):
- the child does is less than 16 years of age;
- the child is in Japan;
- according to the law of the child’s country of habitual residence, the removal or retention of the child is in breach of rights of custody; and
- the country in which the child was habitually resident is a Contracting State at the time of the removal or retention.
Any of the Causes for Return of the Child listed above are relatively easily proven such that an order to return a child can fundamentally be approved on the facts of a case.
That being said, the application for a return of a child shall not be accepted if any of the following causes (the “Cause for Refusing a Return of Child”) are satisfied:
- an application has been filed more than one year from the date of the wrongful removal or retention and it is demonstrated that the child is now settled in its new environment;
- the applicant was not actually exercising custody rights at the time of removal or retention (excluding a case where the applicant would have exercised the custody rights if the child was not wrongfully removed or retained);
- the applicant has agreed or approved to the removal or retention;
- 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 child objects to being returned, provided that it has been determined that the child has attained an age and degree of maturity at which it is appropriate to take into account the child’s views; or,
- the return of the child would is contrary to Japan’s fundamental principles relating to the protection of human rights and fundamental freedoms.
It is anticipated that the Cause for Refusing Return of the Child that would be most argued in practice is item “d”, above. In this regard, the Domestic Law provides that all the circumstances shall be considered in order to decide item “d” and illustrates such circumstances where item “d” would apply as follows3:
- a risk that the child’s return would expose the child to physical violence or other physical and psychological harm (the “Violence etc.”) by the applicant in the country of the child’s habitual residence;
- a risk that the other party might be subject to the Violence, etc. by the applicant which would cause psychological trauma to the child if the other party and the child enters the country of the child’s habitual residence; or,
- any difficulty for the applicant or the other party to take care of the child in the country of the child’s habitual residence.
With the exception of item “d”, even if any of the Causes for Refusing Return of a Child are satisfied, the court may still order the return of the child if it finds that the child’s return to their country of habitual residence fulfills the interests of the child by considering all the circumstances.
In the course of the proceeding, the court will hear and decide on whether Causes of Return of the Child exist and whether no Causes for Refusing Return of the Child exist. The court hearing the application will not hear or decide on the custody of the child. Rather, the Domestic Law provides (pursuant to the framework stipulated by the Convention) that the merits of the case shall be heard and decided in the country in which the child was habitually resident after his/her return to such country.
An execution of an order to return a child shall be done, as a first step, through an indirect compulsory execution (kansetsu-kyousei) in consideration of the mental effects of such order on the child. The indirect compulsory execution is one of the ways of execution which incentivizes an obligee to return the child by the court directint that an obligee shall pay certain amount of money as a penalty if they do not comply with the court order. If this indirect compulsory execution fails, as a second step, the court allows an execution by substitute (daitai-shikkou) through which a court bailiff releases the child from the custody by one parent and a person who is designated to execute the return delivers the child back to the child’s country of habitual residence.
There is no criminal punishment for a party who does not comply with an order to return a child.
Scope of Application
The Convention and the Domestic Law do not apply retroactively. The Domestic Law does not apply to a wrongful removal or retention of a child which was begun before the implementation of the Domestic Law.
Issues to be Solved - Effects on Domestic Cases
As mentioned above, Japanese courts tend to support Homecoming with Children. However, as far as an international abduction is concerned, Japan’s adoption of the Domestic Law will cause abducted children to be immediately returned back to their country of habitual residence. Given Japanese courts’ tendency so far in Homecoming with Children cases, after the Convention comes into force in Japan and the Domestic Law is implemented, there will be an inconsistency in the courts’ position towards domestic cases as compared to international cases between Contracting States and Japan. However, there is no difference in reasoning between international cases and domestic cases in that decision to permit or deny Homecoming with Children centers on the harmful effects such actions could have on children (see the preamble of the Convention). In domestic cases as well, the removal of a child causes the child to be separated and disconnected from one of their parents, and may also cause changes in the habitual circumstances of the child. Accordingly, it is difficult to argue that Homecoming with Children actually protects the best interests of children except for the cases as the Exceptions stipulated in the Convention and the Domestic Law. From this point of view, the implementation of the Convention and the Domestic Law in Japan might serve as a trigger to change the Japanese court’s current position in respect of domestic Homecoming with Children cases4.
From another viewpoint, the implementation of the Convention and the Domestic Law may build momentum to spark discussion to introduce the concept of joint custody after divorce. Currently in Japan, sole custody is awarded to one party following divorce. Helped by the above-mentioned tendency of the Japanese courts to favor Homecoming with Children, it regrettably happens quite often that when a marital relationship is ending, one party would start the separation proceedings by taking their children with them for de-facto sole custody, and argue that “if you want to see your children, accept divorce and my sole custody” to ensure that divorce proceedings and terms (including mediation, trial or litigation regarding divorce, custody and visitation) are in her/his favor. However, as mentioned above, after the implementation of the Convention and the Domestic Law, the court’s tendency might change so as to prohibit Homecoming with Children in domestic cases as well. In that case, it could be possible that parties would discuss and negotiate their divorce, custody and visitation in calmer and gentler manner. If this is achieved, it could being a move towards discussion on the merits of a joint custody system which assumes the cooperation of both parents in raising their children even after