Thursday, January 26, 2012

Editorial on International Child Abduction

"A subcommittee of the Legislative Council, an advisory panel to the justice minister, has decided on a draft outline for necessary domestic laws for Japan's participation in the Hague Convention on the Civil Aspects of International Child Abduction, which sets up expeditious procedures among member states to resolve child custody issues in failed international marriages. The government plans to submit bills on the matter to the Diet in March.

"The government needs to give sufficient consideration to protecting Japanese spouse's rights in revising current domestic laws or establishing new legislation, while respecting international rules.

"Under the terms of the treaty, if, for instance, a Japanese woman comes back to this country with her child who is under 16 years old without telling her non-Japanese husband or ex-husband, it will be regarded as an illegal abduction. When the husband or ex-husband demands the return of the child, the child in principle should be returned to his or her country of habitual residence after hearings in a Japanese family court.

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"Conditions for refusal

"What is important here is to clarify the circumstances under which parents who have returned to Japan with their children can refuse demands to hand the children over.

"The convention only vaguely stipulates circumstances such as there being a "grave risk that the child's return would expose the child to physical or psychological harm" as constituting defenses against returning a child to the other parent.

"The draft outline lists concrete conditions under which Japanese parents can refuse the return of their children. Those include cases when the Japanese parent or the child is likely to become the victim of domestic violence by the non-Japanese parent or when the non-Japanese parent is unlikely to properly raise and take care of the child in the child's country of habitual residence.

"Many Japanese mothers and their children come back to Japan to escape domestic violence at the hands of foreign husbands. There are also parents whose divorce has cost them their residence status in the countries where they and their children had been living.

"Taking these circumstances into consideration, it is appropriate to define the conditions that would constitute defenses against the return of children if the stated conditions do not violate the intent of the convention.

"If a Japanese parent does not obey an order to return his or her child, the draft says, it will be possible for a court to take forcible steps to effect the child's return. Family court officers responsible for persuading Japanese parents to cooperate and communicating with the children will have an extremely important role to play.

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"Foreign Ministry's roles

"Meanwhile, the Foreign Ministry will assist non-Japanese parents in matters such as procedures in Japanese family courts.

"According to a draft of related bills compiled by the ministry, when foreign spouses or former spouses file requests for assistance with the ministry, it will ask relevant schools and local governments to provide information on Japanese spouses and children to determine where the children are.

"Schools and organizations that receive such inquiries will be required to "provide information without delay."

"The Foreign Ministry will establish a "central authority" to deal with the matter. It will be important for the ministry to closely coordinate and cooperate with other government ministries concerned.

"The related bills will also clearly stipulate how to handle cases in which children who lived in Japan are taken away by non-Japanese spouses to other countries. Japanese mothers or fathers will have to demand the return of their children in foreign courts in such cases.

"The Foreign Ministry will gather information on domestic laws concerning the convention in other participating countries and provide them to Japanese parents. It will also ask foreign governments to cooperate with Japan in this regard. The ministry must extend sufficient assistance to both Japanese and foreign parents concerned to realize the smooth return of children."

By Yomiuri Shimbun (Editorial, 1/24/2012), Link to article (last visited 1/26/2012)

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