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Modern Family Law Views – Japan Joins Fight Against International Child Abduction

May 7, 2014

Japan Joins Fight Against International Child Abduction

Years of effort have achieved a milestone in the fight against parents who take or keep their own children across international borders to gain an advantage in custody disputes.  On January 24, 2014, Japan signed the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“Hague Abduction Convention”).  On April 1, 2014, the Hague Abduction Convention entered into force between Japan and the United States.  In many ways, just this one country signing on to one international treaty represents a major victory and heralds ever more progress in the future.

For many years the left behind parent of a child who was wrongfully removed to or retained in Japan by the Japanese parent had few if any remedies.  Two main factors made this so:  Japan’s failure to ratify the Hague Abduction Convention, and Japanese legal tradition and culture in custody matters.  As the number of international marriages, and consequently failed marriages and child abductions, that involve Japanese citizens increased, so did the international pressure on Japan to ratify the Hague Abduction Convention.

Japan’s accession to the Hague Abduction Convention, thus, is a win for all who are affected by this area of the law.  It is a symbolic victory because Japan was the only G7 country that had never acceded to the Hague Abduction Convention.  Japan finally has become one more in a long list of countries from North America and most of Europe, much of Central and South America, and Australia, to formally adopt the Hague Abduction Convention.  It is a substantive victory too, because now future left behind parents can seek return of their children (the Hague Abduction Convention only applies prospectively).   Now also, at least in theory, a legal mechanism exists to seek enforcement of foreign custody order access terms in Japan, something that before was missing.  Unfortunately, the Japanese legal system and culture, which long have been at odds with notions of joint custody, two parent involvement, and enforcement of foreign custody orders, remain as obstacles.  How, and how quickly, Japanese law and society will respond and turn theory into reality remains to be seen.

The larger context, meanwhile, is encouraging.  Changes in the law inevitably and by definition reflect changes in society.  The law changes slowly because society changes slowly.  Japanese society is no exception; but change it will.  From only a few countries in the beginning, the Hague Abduction Convention now counts over 90 members.  Many of these countries have faced, and overcome, societal obstacles, including internal judicial ignorance and resistance.  Many societies, including the United States, have changed the way they view parental roles, sometimes in a relatively short time span.

International treaties, such as the Hague Abduction Convention, have played a role in this change.  And they will continue to play a role.  For example, expect soon that our own domestic relations laws will use “country of habitual residence” more, and will require the “voice of the child” be heard and reflected more in custody determinations.  These coming changes are the result of international treaties addressing family law issues, and are evidence that the international community can and does influence – and change – domestic culture and law.

©2014 by Hadrian N. Hatfield

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Hadrian N. Hatfield