Japan and International Child Abduction

Thus, the Convention is not so much concerned with the merits of a custody order, but rather, it provides a method of enforcing the custodial rights of the parents as established in the jurisdiction of the child's “home state.” Elisa Perez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session (Child Abduction) 428, P 9 (1980) (“Perez-Vera Report”).

The treaty's remedies focus on the protection of the custodial status quo prior to the child's removal from the original jurisdiction, and thus, guarantee respect for the “legal relationships” underlying that custodial status quo. Id. Accession to the Convention on International Child Abduction would oblige Japan to defer to the custodial rights of parents as given by the child's state of habitual residence, or home state, rather than enter and enforce a new order based upon its own laws.

This deference to the custodial laws of foreign nations without regard to the merits of those laws as applied by the foreign nations has been the principal source of Japan's resistance to accession. Japan has repeatedly based its reluctance to join the treaty on two issues: the Convention's lack of protection for victims of domestic violence and the incompatibility of its own custody laws with those of other countries.

The Convention and Domestic Violence

As though on cue, as soon as Japan made its May 20, 2011 announcement, the Japanese media exploded with concerns that the treaty does not provide enough protection to victims of domestic violence escaping their abusers. Minoru Matsutani, Pact Is Welcomed But Abuse Concerns Raised, The Japan Times Online (May 21, 2011), www.japantimes.co.jp/text/nn20110521a3.html. Many stories of the abuse and violence of foreign fathers circulating in Japanese media, such as a father's harsh tone and his repeated flicking of a child's forehead, are likely not to impress an American audience. See, e.g., Japanese TV Report about Child abduction & the Hague Convention, Japan Probe (May 27, 2011), www.japanprobe.com/2011/05/27/japanese-tv-report-about-child-abduction-the-hague-convention-2/. These stories do indicate, however, just how differently Japan might implement the Convention.

The Convention's Article 13(b) allows a court to deny a parent's petition for return if there is a “grave risk” of physical or psychological harm to the child, but courts in many nations have given the “grave risk” exception a very narrow interpretation. In the United States, for example, courts have deferred to guidance from the State Department indicating that “grave risk” is a level of danger greater than “merely serious.” See, e.g., Friedrich v. Friedrich, 78 F.3d 1060, 1068 (6th Cir. 1996); Whallon v. Lynn, 230 F.3d 450, 454-55 (1st Cir. 2000). Moreover, the law implementing the treaty in the United States specifies that evidence of “grave risk” must be clear and convincing. 42 U.S.C. ' 11603(e)(2)(A). Given the complex dynamic of abusive relationships, which generally involves the victim's long-standing denial or secrecy of the abuse, meeting such a high burden of proof is a daunting task. See Jane H. Aiken and Jane C. Murphy, Evidence Issues in Domestic Violence Civil Cases, 34 Fam. L.Q. 44 (2000). Even where grave risk of harm to the children has been proven, the Convention's strong presumption for return of the children has led courts in several countries to work first with the children's home country to establish protections for the children's return before applying the exception. See, e.g., Blondin v. Dubois, 189 F.3d 240, 248 (2nd Cir.1999) (Blondin II); Turner v. Frowein, 253 Conn. 312, 752 A.2d 955 (2000); Thomson v. Thomson [1994] 3 S.C.R. 551, 599 (Can.); P. v. B. [1994] 3 I.R. 507, 521 (Ir.S.C.).

The truth is, Japan's accession to the treaty does not mean it has to forfeit its status as a generous haven for victims of abuse. For all its demurring on the grounds of the Convention's policy on domestic violence, Japan is not necessarily bound by the strong reservations other signatory nations have had in granting the grave risk exception. The principles of treaty interpretation demand that weight be given to the interpretation of a convention by the sister signatories, but it is possible for Japan to depart from the international consensus to include additional protections for potential victims of domestic violence.

When joining the Convention, each country drafts and implements its own laws dictating how the country is to implement the treaty within its legal system. These laws can steer a country's interpretation of the treaty in alignment with or away from international trends. Switzerland, for example, disagreed with how the international community had been implementing the Article 13(b) exception to return. In December 2007, it amended its federal laws regarding the Convention to broaden the application of a 13(b) exception based upon a best-interest analysis and greater weight given to the child's preference. See Andreas Bucher, The New Swiss Federal Act on International Child Abduction, 4 J. Priv. Int'l L. 139 (2008). Just as the U.S. imposed its clear and convincing standard for the determination of “grave risk” under Article 13, Japan's new laws could require a lower threshold of evidence to determine the same. Given Japan's domestic views on child custody, it is likely to draft laws that carve broad exceptions for a return.

Japan's Child Custody Laws

Japan's statutes governing divorce and custody have not changed since 1957, and this is a problem for both Japan and the international community. Under Articles 818 and 819 of Japan's Civil Code, both parents exercise parental authority of their children while they are married, but upon divorce, custody can be granted only to one of the parents. Either parent can petition the court to change custody from one parent to the other, but the Japanese courts do not contemplate joint custody. The parties themselves can determine by agreement which parent shall exercise the parental authority. Minpo, art. 766; art. 819, para. 3. If they cannot reach an agreement, the court will award the child to the mother, unless either parent or a relative requests the court to make a different determination. Minpo, art. 819. Typically, even today, mothers are favored because the fathers are perceived to be the parents with the more demanding job. There is no Japanese statute to protect or enforce the noncustodial parent's rights of access to the children. The custodial parent alone has the power and authority to determine whether and how frequently the noncustodial parent can see his or her children.

This is the primary disconnect the Japanese public has with the treaty's enforcement of a left-behind parent's rights. When the Hague's treaty on child abduction first came into being in 1980, the concept of joint custody was just becoming more prevalent in the initial signing countries, and the treaty was consciously drafted with the protection of joint custody arrangements in mind. Perez-Vera Report, P 71, at 447. Since then, some form of shared custody has become ever more the status quo and default custodial arrangement in many Western countries, but Japan has remained a strange anomaly among similarly industrialized nations.

The Pressure for Change

Political pressure both inside and outside Japan may ensure that some progress is made. Japan's economic survival may depend on its society's recognition and acceptance of shared childcare responsibilities. Like many Western industrialized countries, the role of women in the workplace has advanced greatly in Japan, but unlike women in the West, Japanese women still perform as much as four times the amount of housework and childcare as Japanese men do. Masako Ishii-Kuntz, Expert Paper, Sharing of Housework and Childcare in Contemporary Japan, United Nations Division for the Advancement of Women (UNDAW) Department of Economic and Social Affairs (October 2008). The stubborn division of domestic labor along gender lines and the high cost of childcare assistance have contributed to the sharp decline of Japan's birth rate since the 1990s. Id. The Japanese government has made some efforts to shift the cultural paradigm to keep women both working and having children. In the early 2000s, Japan's Ministry of Health, Labor, and Welfare went so far as to implement a media campaign including television commercials and posters with the slogan, “A man who doesn't raise his children cannot be called a father.” Id. Research has tracked some increase in Japanese men's participation in the domestic sphere, but such progress remains painfully slow. Id.

The international community's recent political pressure on Japan to reform its custody laws might have been the impetus the country needed to justify significant legal reformation. Japan's decision to join the Convention comes at a time when international pressure on Japan to sign the treaty had heightened along with the numbers of children abducted to Japan from all over the world.

Strong momentum to push Japan to join the Convention began building when the case of Christopher Savoie, an American jailed in Japan for allegedly abducting his children from their Japanese mother, caught international attention in October 2009. Savoie's ex-spouse, a Japanese native with whom he was already engaged in a difficult custody battle, absconded with their children to Japan in violation of their established Custody Order in the United States. Fearing he had no other recourse, Savoie took the matter into his own hands. He followed them to Japan, found the children, snatched them up and headed to the U.S. Consulate, but Japanese police arrested him just steps away from the Consulate's gate. Savoie was released and returned to the U.S. a few weeks later after resounding clamor from Japan's many allies in the international community, but he returned without his children and has not seen them since.

Savoie's case immediately sparked ambassadors from United States, the United Kingdom, Canada, Australia, New Zealand, France, Spain, and Italy to urge Japan to sign the Hague treaty on international child abduction. Press Release, U.S. Embassy to Japan, Joint Statement on International Child Abduction (Oct. 16, 2009) (on file with author). Repeatedly in both 2010 and in 2011, more countries collectively sent press releases calling on Japan's Minister of Justice to sign the treaty. The United States Congress even passed a resolution calling on the Japanese government to address the wrongful retention of minors in their country immediately and to sign the treaty without delay. H.Res. 1326, 111th Cong. (2010). International political pressure and internal economic pressure has left Japan with little choice but to rethink its child custody policy and sign the Convention.

The Implementation of Change

Although the Japanese government has professed its intentions to join the Hague's Convention on International Child Abduction, the extent to which Japan can reform its child custody policies to implement the treaty successfully is still in question. Mexico is a fine example of how a country can succeed in joining the Convention, but fail in its practical application. Mexico signed the Convention in 1991, but has an extremely poor record of compliance. The treaty requires the petitions to be processed quickly, within three months of a parent's initial request. Currently, Mexico has 82 long-standing, unresolved return applications from the United States. U.S. Department of State, 2011 Report on Compliance with the Hague Convention (April 2011). The U.S. Central Authority (USCA) has attributed Mexico's issues with compliance to inconsistent rulings among its courts and the long delays associated with its constitutionally based appeals known as “amparos.” Id.

Mexico's track record suggests that without a consistent policy or effective legal infrastructure to implement the treaty, Japan's record of returning children might not show much improvement even after officially joining the Convention. Any real change in Japan's child abduction trends will depend in part on the laws it develops in the coming months to fit the treaty into Japan's legal system and in part on Japan's ability to recognize and value both parents' custodial rights. The danger could be that if Japan signs the treaty and return applications get denied on the basis of Japan's implementation of the treaty, Japan could remain a haven for abducting parents.

Conclusion

Only time will tell how Japan implements the treaty. It is hoped that Japan will recognize and appreciate the spirit of the treaty, that the home state should make the ultimate determination of any modification to an existing custody order. Only then will parents who use self-help by abducting their children to Japan have to think twice.

Lori K. Shemtob is a founding partner of Shemtob Law, P.C., a Fellow of the American Academy of Matrimonial Lawyers (AAML), a Member of the Board of Managers of the Pennsylvania Chapter of the AAML, and an Advisory Board member of Prevent Child Abuse Pennsylvania Chapter. She was named a Pennsylvania Super Lawyer by Philadelphia Magazine from 2007-2011. MariaJos' Delgado is an associate at the firm, where she practices family law exclusively.

On May 20, 2011, Japan finally announced its intention to sign the 1980 Hague Convention on the Civil Aspects of International Child Abduction. To date, 84 countries are parties to this treaty, and Japan is the only G7 country not on the list. Japan has long been an unrepentant haven for child-abducting parents. The United States Office of Children's Issues has no record of any cases requesting the return of a wrongfully retained or abducted child being resolved through the Japanese court system. The only successful returns have been the result of voluntary agreements negotiated between the parties. Unfortunately, as welcome as Japan's announcement might be to the international community, its reputation as a black hole of parental child abduction might not be lost so easily.

The 1980 Hague Convention on the Civil Aspects of
International Child Abduction

The Hague's Convention on International Child Abduction essentially prevents an abducting parent from international forum shopping for custody, and protects the jurisdiction and custodial rights of the left-behind parent. The Convention offers two remedies to a left-behind parent or guardian, depending upon whether the petitioner seeks to recover a “right of custody” or a “right of access” as defined by Article 5 of the Convention. Deprived holders of rights of custody may apply for immediate return of the child under Article 8, and deprived holders of rights of access may apply for enforcement of their access rights under Article 21. In order to determine which remedy, if any, is appropriate, courts must determine whether the petitioning parent holds any rights of custody or access in the country from which the children were taken.

Thus, the Convention is not so much concerned with the merits of a custody order, but rather, it provides a method of enforcing the custodial rights of the parents as established in the jurisdiction of the child's “home state.” Elisa Perez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session (Child Abduction) 428, P 9 (1980) (“Perez-Vera Report”).

The treaty's remedies focus on the protection of the custodial status quo prior to the child's removal from the original jurisdiction, and thus, guarantee respect for the “legal relationships” underlying that custodial status quo. Id. Accession to the Convention on International Child Abduction would oblige Japan to defer to the custodial rights of parents as given by the child's state of habitual residence, or home state, rather than enter and enforce a new order based upon its own laws.

This deference to the custodial laws of foreign nations without regard to the merits of those laws as applied by the foreign nations has been the principal source of Japan's resistance to accession. Japan has repeatedly based its reluctance to join the treaty on two issues: the Convention's lack of protection for victims of domestic violence and the incompatibility of its own custody laws with those of other countries.

The Convention and Domestic Violence

As though on cue, as soon as Japan made its May 20, 2011 announcement, the Japanese media exploded with concerns that the treaty does not provide enough protection to victims of domestic violence escaping their abusers. Minoru Matsutani, Pact Is Welcomed But Abuse Concerns Raised, The Japan Times Online (May 21, 2011), www.japantimes.co.jp/text/nn20110521a3.html. Many stories of the abuse and violence of foreign fathers circulating in Japanese media, such as a father's harsh tone and his repeated flicking of a child's forehead, are likely not to impress an American audience. See, e.g., Japanese TV Report about Child abduction & the Hague Convention, Japan Probe (May 27, 2011), www.japanprobe.com/2011/05/27/japanese-tv-report-about-child-abduction-the-hague-convention-2/. These stories do indicate, however, just how differently Japan might implement the Convention.

The Convention's Article 13(b) allows a court to deny a parent's petition for return if there is a “grave risk” of physical or psychological harm to the child, but courts in many nations have given the “grave risk” exception a very narrow interpretation. In the United States, for example, courts have deferred to guidance from the State Department indicating that “grave risk” is a level of danger greater than “merely serious.” See, e.g., Friedrich v. Friedrich , 78 F.3d 1060, 1068 (6th Cir. 1996); Whallon v. Lynn , 230 F.3d 450, 454-55 (1st Cir. 2000). Moreover, the law implementing the treaty in the United States specifies that evidence of “grave risk” must be clear and convincing. 42 U.S.C. ' 11603(e)(2)(A). Given the complex dynamic of abusive relationships, which generally involves the victim's long-standing denial or secrecy of the abuse, meeting such a high burden of proof is a daunting task. See Jane H. Aiken and Jane C. Murphy, Evidence Issues in Domestic Violence Civil Cases, 34 Fam. L.Q. 44 (2000). Even where grave risk of harm to the children has been proven, the Convention's strong presumption for return of the children has led courts in several countries to work first with the children's home country to establish protections for the children's return before applying the exception. See, e.g., Blondin v. Dubois , 189 F.3d 240, 248 (2nd Cir.1999) (Blondin II); Turner v. Frowein , 253 Conn. 312, 752 A.2d 955 (2000); Thomson v. Thomson [1994] 3 S.C.R. 551, 599 (Can.); P. v. B. [1994] 3 I.R. 507, 521 (Ir.S.C.).

The truth is, Japan's accession to the treaty does not mean it has to forfeit its status as a generous haven for victims of abuse. For all its demurring on the grounds of the Convention's policy on domestic violence, Japan is not necessarily bound by the strong reservations other signatory nations have had in granting the grave risk exception. The principles of treaty interpretation demand that weight be given to the interpretation of a convention by the sister signatories, but it is possible for Japan to depart from the international consensus to include additional protections for potential victims of domestic violence.

When joining the Convention, each country drafts and implements its own laws dictating how the country is to implement the treaty within its legal system. These laws can steer a country's interpretation of the treaty in alignment with or away from international trends. Switzerland, for example, disagreed with how the international community had been implementing the Article 13(b) exception to return. In December 2007, it amended its federal laws regarding the Convention to broaden the application of a 13(b) exception based upon a best-interest analysis and greater weight given to the child's preference. See Andreas Bucher, The New Swiss Federal Act on International Child Abduction, 4 J. Priv. Int'l L. 139 (2008). Just as the U.S. imposed its clear and convincing standard for the determination of “grave risk” under Article 13, Japan's new laws could require a lower threshold of evidence to determine the same. Given Japan's domestic views on child custody, it is likely to draft laws that carve broad exceptions for a return.

Japan's Child Custody Laws

Japan's statutes governing divorce and custody have not changed since 1957, and this is a problem for both Japan and the international community. Under Articles 818 and 819 of Japan's Civil Code, both parents exercise parental authority of their children while they are married, but upon divorce, custody can be granted only to one of the parents. Either parent can petition the court to change custody from one parent to the other, but the Japanese courts do not contemplate joint custody. The parties themselves can determine by agreement which parent shall exercise the parental authority. Minpo, art. 766; art. 819, para. 3. If they cannot reach an agreement, the court will award the child to the mother, unless either parent or a relative requests the court to make a different determination. Minpo, art. 819. Typically, even today, mothers are favored because the fathers are perceived to be the parents with the more demanding job. There is no Japanese statute to protect or enforce the noncustodial parent's rights of access to the children. The custodial parent alone has the power and authority to determine whether and how frequently the noncustodial parent can see his or her children.

This is the primary disconnect the Japanese public has with the treaty's enforcement of a left-behind parent's rights. When the Hague's treaty on child abduction first came into being in 1980, the concept of joint custody was just becoming more prevalent in the initial signing countries, and the treaty was consciously drafted with the protection of joint custody arrangements in mind. Perez-Vera Report, P 71, at 447. Since then, some form of shared custody has become ever more the status quo and default custodial arrangement in many Western countries, but Japan has remained a strange anomaly among similarly industrialized nations.

The Pressure for Change

Political pressure both inside and outside Japan may ensure that some progress is made. Japan's economic survival may depend on its society's recognition and acceptance of shared childcare responsibilities. Like many Western industrialized countries, the role of women in the workplace has advanced greatly in Japan, but unlike women in the West, Japanese women still perform as much as four times the amount of housework and childcare as Japanese men do. Masako Ishii-Kuntz, Expert Paper, Sharing of Housework and Childcare in Contemporary Japan, United Nations Division for the Advancement of Women (UNDAW) Department of Economic and Social Affairs (October 2008). The stubborn division of domestic labor along gender lines and the high cost of childcare assistance have contributed to the sharp decline of Japan's birth rate since the 1990s. Id. The Japanese government has made some efforts to shift the cultural paradigm to keep women both working and having children. In the early 2000s, Japan's Ministry of Health, Labor, and Welfare went so far as to implement a media campaign including television commercials and posters with the slogan, “A man who doesn't raise his children cannot be called a father.” Id. Research has tracked some increase in Japanese men's participation in the domestic sphere, but such progress remains painfully slow. Id.

The international community's recent political pressure on Japan to reform its custody laws might have been the impetus the country needed to justify significant legal reformation. Japan's decision to join the Convention comes at a time when international pressure on Japan to sign the treaty had heightened along with the numbers of children abducted to Japan from all over the world.

Strong momentum to push Japan to join the Convention began building when the case of Christopher Savoie, an American jailed in Japan for allegedly abducting his children from their Japanese mother, caught international attention in October 2009. Savoie's ex-spouse, a Japanese native with whom he was already engaged in a difficult custody battle, absconded with their children to Japan in violation of their established Custody Order in the United States. Fearing he had no other recourse, Savoie took the matter into his own hands. He followed them to Japan, found the children, snatched them up and headed to the U.S. Consulate, but Japanese police arrested him just steps away from the Consulate's gate. Savoie was released and returned to the U.S. a few weeks later after resounding clamor from Japan's many allies in the international community, but he returned without his children and has not seen them since.

Savoie's case immediately sparked ambassadors from United States, the United Kingdom, Canada, Australia, New Zealand, France, Spain, and Italy to urge Japan to sign the Hague treaty on international child abduction. Press Release, U.S. Embassy to Japan, Joint Statement on International Child Abduction (Oct. 16, 2009) (on file with author). Repeatedly in both 2010 and in 2011, more countries collectively sent press releases calling on Japan's Minister of Justice to sign the treaty. The United States Congress even passed a resolution calling on the Japanese government to address the wrongful retention of minors in their country immediately and to sign the treaty without delay. H.Res. 1326, 111th Cong. (2010). International political pressure and internal economic pressure has left Japan with little choice but to rethink its child custody policy and sign the Convention.

The Implementation of Change

Although the Japanese government has professed its intentions to join the Hague's Convention on International Child Abduction, the extent to which Japan can reform its child custody policies to implement the treaty successfully is still in question. Mexico is a fine example of how a country can succeed in joining the Convention, but fail in its practical application. Mexico signed the Convention in 1991, but has an extremely poor record of compliance. The treaty requires the petitions to be processed quickly, within three months of a parent's initial request. Currently, Mexico has 82 long-standing, unresolved return applications from the United States. U.S. Department of State, 2011 Report on Compliance with the Hague Convention (April 2011). The U.S. Central Authority (USCA) has attributed Mexico's issues with compliance to inconsistent rulings among its courts and the long delays associated with its constitutionally based appeals known as “amparos.” Id.

Mexico's track record suggests that without a consistent policy or effective legal infrastructure to implement the treaty, Japan's record of returning children might not show much improvement even after officially joining the Convention. Any real change in Japan's child abduction trends will depend in part on the laws it develops in the coming months to fit the treaty into Japan's legal system and in part on Japan's ability to recognize and value both parents' custodial rights. The danger could be that if Japan signs the treaty and return applications get denied on the basis of Japan's implementation of the treaty, Japan could remain a haven for abducting parents.

Conclusion

Only time will tell how Japan implements the treaty. It is hoped that Japan will recognize and appreciate the spirit of the treaty, that the home state should make the ultimate determination of any modification to an existing custody order. Only then will parents who use self-help by abducting their children to Japan have to think twice.

Lori K. Shemtob is a founding partner of Shemtob Law, P.C., a Fellow of the American Academy of Matrimonial Lawyers (AAML), a Member of the Board of Managers of the Pennsylvania Chapter of the AAML, and an Advisory Board member of Prevent Child Abuse Pennsylvania Chapter. She was named a Pennsylvania Super Lawyer by Philadelphia Magazine from 2007-2011. MariaJos' Delgado is an associate at the firm, where she practices family law exclusively.