Japanese legislation implementing the Hague Convention to be revised

Amid the increasing number of problems in which a parent who divorced overseas returns to Japan with their children, a working group of the Legislative Council of the Justice Ministry – an advisory panel to justice minister – decided to draw a draft plan to make more effective a court order to hand over children to parents who win custody, Sankei Shimbun learned on June 25. The panel, by incorporating into the draft a provision that will allow a court executive officer to take away children in the absence of the parent living with the children, will put together a draft outline to revise the Civil Execution Act and the legislation implementing the Hague Convention on the Civil Aspect of International Child Abduction.

Panel will draw an outline in accord with domestic law

On account of the current complicated procedures, it is often the case that children continue to live in Japan even after the final court order to hand over children to parents who win custody. The international community has called for Japan to review the system.

The Hague Convention is an international treaty that sets out rules and procedures for the prompt return to the country of habitual residence of children. Japan acceded to the convention in 2014. However, the U.S. State Department, citing the ineffectiveness of the convention in Japan, listed it as “one of the countries in noncompliance” in an annual report released in May this year.

The legislative council civil execution act working group will look into cases in which parents returned to Japan with children and discuss revising the Civil Execution Act to improve the effectiveness of handing over children to parents who win custody. Japanese legislation implementing the Hague Convention on the Civil Aspect of International Child Abduction is applied to such cases. Because the problematic aspects of those cases are similar, the working group will draw up a draft outline by handling them as a whole.

Under the current system, when a parent returns to Japan with children, the following complicated procedures are required to hand over children to the parent who wins custody: (1) the parent who lost the children files a request for them to be handed over; (2) a court order to hand over the children becomes final; (3) “indirect enforcement,” a penalty paid by the parent with children until they are handed over, is invoke; (4) a court order for the indirect enforcement becomes final; (5) if the parent with children defies the order, a “substitute execution” for handing over the children is filed with the court; and (6) a court executive officer executes the order.

The current system, which requires indirect enforcement, takes time. In addition, when implementing a substitute execution, the presence of the parent living with children is requisite. Court executive officers were often unable to implement the order because the parents who lost custody intentionally hid their children to block the handover.

The pillars of the proposed draft plan of the advisory panel will no longer require the procedure for indirect enforcement in principle; a substitute execution will be implemented in the absence of parents living with children; and parents who win custody will be present in principle when implementing a substitute execution. The panel focuses on consideration for children when implementing this series of measures.

Consideration for children is necessary

Under the current system, children were not handed over in more than half of cases in which court orders for a substitute execution became final. Under such difficult circumstances, other court procedures totally different from the current system were required, but the proposed revision of the legislation implementing the Hague Convention will apparently make the complicated procedures smoother.

The Hague Convention stipulates that “when a parent wrongfully returns to his or her country with children under sixteen years of age without knowledge of the other parent, contracting states shall discover the whereabouts of the children and secure their voluntary return to the original country.” However, it is a matter of fact that Japan is not complying with the convention at present. According to the Ministry of Foreign Affairs, the number of court orders, in which the handover of children became final, totaled 23 for the period from April 2014 (when the Hague Convention came into force) to June this year. A substitute execution was approved in 7  of the 23 cases, but the handover was not realized in 4 cases.

Under the current system, “indirect enforcement” is an essential condition for filing for a “substitute execution,” which hinders the handover of children. The reason that indirect enforcement is a prerequisite for a substitute execution is, according to a senior justice ministry official, that “the sudden implementation of a substitute execution may become burden on the children,” but the procedures requires a significant time in some cases until court proceedings are completed.

Furthermore, the current system requires the presence of the parent living with children when implementing a substitute execution. If the parent resists the execution, court executive officers are unable to implement the order out of concern that “the execution may have a harmful effect on children.” As a result, such resistance ends up benefiting the parents who lost custody.

When a substitute execution fails, filing a “petition for habeas corpus,” a totally different request asking for the release of an unlawfully detained person, has become a routine practice.

In March this year, the Supreme Court ruled on a habeas corpus case, saying that “defying a final court order to hand over children is in principle unlawful.” This may be a favorable development for parents overseas who request the handover of children, but they will still bear the heavy burden of filing a new lawsuit in Japan. 

On the other hand, parents who brought back their children to Japan strongly believe that they did so in the children’s best interest. In a Supreme Court case, a mother who lost custody and came back to Japan claimed, “We are in Japan because my children want to be here and it is their father who is forcibly trying to take them away.”

There are complicated circumstances between husband and wife, which resist intervention by others. Handing over children requires not only speeding up processes but also consideration for the best interest of the children.

Procedures for handing over children from the final court order to the implementation of substitute execution