Courts fail to return disputed children
8:01 pm, March 06, 2018
The Yomiuri Shimbun
All domestic legal procedures to compel divorced parents who are refusing to obey finalized court orders to return their children to the children’s country of habitual residence, in keeping with an international treaty, have so far failed, according to the Foreign Ministry.
The Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) stipulates how to handle the cases of children who have been taken by their father or mother to a foreign state due to divorce or other reasons.
In domestic trials involving the convention, some parents have not obeyed even finalized orders to return such children to the state where they habitually resided. According to the Foreign Ministry, six legal procedures have been conducted to separate children from such parents, but all have failed to bring about the return of the children.
This has led the effectiveness of the Hague Convention to be questioned, and some experts are calling for improvements to the relevant systems.
The Hague Convention is an international rule under which, if a parent takes his or her children to his or her home country without the permission of the other parent, the parent must in principle return the children to the state where the children have their habitual residence.
Parents residing in foreign countries file a suit with family and other courts demanding the return of their children to their countries. The courts then decide whether to accept such demands through trials or other procedures.
If the other parent refuses to return their children in defiance of the court decision, implementation by proxy (see below) of the children’s return will be carried out, following the implementation of fines.
The Hague Convention went into effect in April 2014. According to the Foreign Ministry, from then until January this year, there have been 23 cases in which courts have ordered, through a trial, the return of children to states where they have their habitual residence.
Of these cases, implementation by proxy was conducted in six cases involving 14 children. However, the parents would not agree and refused to hand over their children, holding them tightly in their arms or using other means. As a result, none of the children were returned in these six cases.
Under the Japanese law for implementation of the convention, it is impossible to forcibly separate children from parents through implementation by proxy.
A lawyer for a male U.S. national who had filed such a suit under the Hague Convention pointed out the weak effectiveness of the Japanese implementation law, with the U.S. system — in which parents who do not obey court decisions can be detained — in mind.
Shinichiro Hayakawa, a professor of international private law at the University of Tokyo, said: “The current situation in which parents are allowed to refuse to return their children is problematic. It’s necessary to consider improving the system to enhance the effectiveness of the treaty while paying attention to the mental and physical condition of children.”
Decision could be overturned
On Monday, the first petty bench of the Supreme Court held a hearing for a case filed by a father living in the United States who is demanding the return of his 13-year-old son. The boy’s mother lives in Japan and refused to obey an order to return the son to the United States and accept implementation by proxy.
The case was closed the same day, after hearing from both sides. A ruling will be handed down on March 15, and may be overturned by the Nagoya High Court’s Kanazawa branch that refused the father’s demand.
At the hearing, the father’s side claimed that the mother’s act ignored the purpose of the convention. The mother’s side claimed that their son wants to live in Japan and so he should not be returned to the United States even though a return order was issued under the treaty.
The parents in this case are both Japanese nationals. They divorced in the United States, and the mother took their son to Japan in 2016. The father filed a suit demanding the return of the son under the implementation law.
The Tokyo High Court’s order to return him was finalized. However, when court enforcement officers arrived at the home of the mother and son, the mother wrapped herself and her son in a futon and refused to cooperate. Therefore, the boy could not be returned.
Implementation by proxy
If a person does not obey court orders or other directives, court enforcement officers and other people visit the person to implement the relevant orders in a compulsory manner. Under the Japanese implementation law for the Hague Convention, such officers and parents demanding their children’s return visit the relevant children and ask the other parent living with the children to return them. Court enforcement officers are allowed to unlock and search homes, and to attempt to persuade the other parent. However, they are not allowed to forcibly separate parents and children who refuse to accept the implementation.