There has been an increasing number of international cases in which one parent takes a child from the other parent as a result of their divorce or for some other reasons. With respect to the Convention on the Civil Aspects of International Child Abduction, or the so called the “Hague Convention,” the Supreme Court recently ruled for the first time that refusing to comply with a court order to return the child under the convention is in principle unlawful.
As Japan is a signatory to the convention, the top court ruling is appropriate. It is necessary to make fully known to the public the purpose of the convention – protecting children – once again.
The convention stipulates that in case one parent takes a child under 16 years old without the knowledge of the other parent, a signatory country is obligated to look for and return the child to the original country where the child used to live.
The latest case was a dispute between Japanese parents. The father who lives in the U.S. demanded that the mother who had taken away the 13-year-old second son return him to the U.S. The mother refused to do so, and the father filed a request for returning the child under the Habeas Corpus Act.
The Supreme Court ruled that not following an order to return the child was unlawful except in special circumstances. Disputes over children are happening not only in the case of international marriages but also between Japanese married couples.
The convention came into force in Japan four years ago. There have been a total of 23 cases in which an order to return a child became final. However, the child was not returned in six cases on account of strong resistance by the parent who took the child away.
In the latest case, the Supreme Court examined whether the child was made to know what he needed to make a decision on his own and whether the parent who took away the child improperly put psychological pressure on the child. As a result, the top court strictly judged that the child had no opportunity to communicate with his father and the child was “detained.”
Disputes between married couples involve complications which are difficult for third parties to meddle in. However, parents should know that Japan is a signatory to the convention and they would be strongly criticized if they don’t comply with the rule.
In Western countries, it is strongly believed that freely allowing children to see their parents even after their parents’ divorce will benefit children.
Before Japan signed the convention, some experts had a cautious view on joining the convention out of concern about whether Japan is compatible with the international convention due in part to different custody systems. On the other hand, the convention allows Japan to take measures to have other countries return children who were taken away from Japan, which will certainly benefit Japan.
If Japan had not joined the convention, it could have caused a case in which one parent with a child, when returning to Japan, might be condemned for “kidnapping” and their travel might be restricted.
There are some women who return to Japan with their child to flee from domestic violence by their husbands. Under the convention, a parent can refuse to return the child who might be hurt if the child is returned. The government should enhance its support measures, including counseling on domestic violence. It is important to implement the convention by giving first consideration to children’s well-being.