Family Solicitor Cara Nuttall published a blog a few weeks ago reporting on the failure of the Japanese Parliament (the Diet) to ratify the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Hague Abduction Convention).
Japan’s prospective membership of the Hague Convention club was much-anticipated and was believed universally to be long-overdue.
The failure by Japan to give effect to the Hague Abduction Convention will be felt particularly keenly in Australia, USA and Canada. There, because of patterns of migration and cross-cultural relationships, it is far more common than in the UK for a parent in a dispute about children to be a Japanese national. The experience from those countries is not a happy one. Japan is described by parents affected by Child Abduction as a “haven for parental abduction” and a “black hole for child abduction”. Japan has, in the international arena, tried to defend its record of managing child abduction situations by saying it is protecting Japanese mothers and children from abusive husbands and fathers, respectively.
The reality, it seems, bears little correlation to that excuse, and appears to be the scion of a system that is simply unable to cope with the realities of contemporary family life. In a 2009 article for the professional journal of the Japanese Federation of Bar Associates, Professor Takao Tanase described Japan’s handling of domestic disputes about Children in these terms: “Disputes over visitation are dramatically increasing in Japan. The number of cases has almost quadrupled over the last ten years, from 1,700 mediated Divorce cases and 290 judicial divorce cases in 1998, to 6,260 mediated divorce cases and 1,000 judicial divorce cases in 2008.
These disputes are never easy to resolve, and out of a combined 7,100 conciliation and judicial divorce cases that have been resolved, less than 49% resulted in any kind of visitation award. Only half of these decisions resulted in visitation one or more days every month, and only 15% allowed overnight stays. Furthermore, it is common for the parties not to honour (sic) their agreements even when the parties agree, and issues of visitation remain to the end, even in cases that have reached family court, becoming cases that ‘cannot be cleanly resolved.’
“Over 251,000 married couples Separated in 2008, and if this number is divided by the 726,000 marriages in the same year, roughly one out of every 2.9 marriages will end in divorce. Out of all divorcing couples, 144,000 have children, equalling about 245,000 children in all.
Seeing as roughly 1.09 million children were born this year, about one out of every 4.5 children will experience divorce before reaching adulthood. Even with the increase in visitation awards, only about 2.6% of the 245,000 children affected by Divorce will be allowed visitation."
The US, in particular, has become increasingly strident in voicing its dissatisfaction with Japan’s response to child abduction situations. Diplomatic overtures in 2010 and 2011 from it (and a number of other countries) have given way to direct action. California passed earlier this year new legislation to prevent child abduction. The Act, known colloquially as Keisuke’s Law, prevents parents in a Custody dispute from applying for new or replacement passport for their children without consent from the other parent. It also allows the District Attorney to order a freeze on the California assets of an individual who is alleged to have abducted a child.
The law has its origins in an American-Japanese case, and in the ineffectual legal response from the latter country.And in September 2012, the Washington State Appellate Court gave Judgment in a dispute in which it opined, “Japan did not meet our fundamental principles concerning due process and Parental Rights”.
This condemnation from the judiciary and Executive within the countries with the most experience of the Japanese system in operation may seem harsh. But if the statistics from Professor Tanase are even remotely realistic, it is hardly surprising that Japan struggles to apply the principles that underscore the global response to the blight of parental child abduction. The failure of the Diet to adopt the Hague Abduction Convention looks increasingly less disappointing, and more of a fundamental failing of the Families and children inevitably affected.
So what’s to happen in the meantime? Well, one stop-gap solution pending Japan giving effect to the Hague Abduction Convention is a bilateral treaty. This is an agreement or protocol between two countries on the management of cases between them. The UK has negotiated a protocol with Pakistan that has been applied to great effect in resolving disputes about children between the two countries.
A similar arrangement has been agreed with Egypt. Canada has negotiated bilateral treaties with several Arab countries, as has Australia and France. The daunting prospect of Japan addressing effectively the spectre of parental child abduction may appear less so if approached initially on a more limited scale. What is clear is that doing nothing is not an option, and action from the Diet is urgently required.
Cara Nuttall is a Senior Family & Children Law Solicitor at Slater and Gordon Lawyers in Manchester.
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