Japan has been criticized for “not fulfilling an international pledge” with regard to its response to the Hague Convention on the Civil Aspects of International Child Abduction, which stipulates how to deal with cross-border abduction of children. Is there a flaw in Japan’s handling of human rights issues? A close look at the background of the issue has revealed that Japan and Western countries have different ideas about family.
The only advanced country to fail to comply
The criticism was triggered by the annual report on the Hague convention released by the U.S. Department of State in May. The report criticized 12 Latin American and Middle Eastern countries, including China, India, Brazil, and Argentina, calling them “countries of noncompliance.”
The listed countries are all non-Western countries, and Japan is the only country in the Group of Seven that is included in the list. The report points out, “When a parent refuses to comply with a court order to return a child, Japanese authorities do not have effective measures to enforce it.”
The Hague Convention took effect in 1983 and has been signed by 98 countries. It stipulates that if a parent takes a child abroad without permission, the child will in principle be returned to his/her home country.
Japan did not join the convention for a long time. But the rising number of international marriages has caused the situation to change. More and more Japanese women who were married to foreigners return to Japan from overseas with their children without permission after divorce, fearing that they will lose custody in divorce suits overseas. The U.S. and other countries viewed the situation as a problem and urged Japan to join, which led to Tokyo finally acceding to the international treaty in 2014.
Under the Hague Convention, if a child is taken away, the authorities of countries concerned (in Japan’s case the Ministry of Foreign Affairs [MOFA]) hold discussions. If the dispute cannot be resolved, a court in the country to which the child was taken issues a judgment. “Japanese courts issue orders to return children to their home countries after carefully assessing whether doing so would be detrimental to the children,” a Foreign Ministry source in Tokyo says. The U.S. Department of State viewed cases in which it takes time for orders to return children to be executed as problematic.
But why are there cases in which orders to return children are not executed? The Japanese law for implementing the treaty stipulates that “force cannot be used on children” when an enforcement officer physically takes the child away from a parent to carry out compulsory execution. As such, an order to return a child cannot be forcibly enforced if a Japanese parent or a Japanese child refuses it. Under the current system, a child cannot be returned unless a Japanese parent is present and approves of the handover.
Different ideas about family
Japanese laws like this are influenced by the Japanese idea of family. It is widely believed in Japan that when parents divorce, the children should be raised by one parent, specifically the mother. The civil code stipulates that sole legal custody is granted to one party of a divorced couple. But that is not the case in the U.S. and Europe, where divorced couples are granted joint custody. According to MOFA, Brazil and Argentina, which were also criticized by the U.S., have a similar tradition in which mothers to raise their children after divorce. A gap between ideas on family has led to conflict over the convention.
Nevertheless, it is not possible to say “it’s just a cultural difference” and ignore the situation because the Hague treaty refers to the act of taking child away as “abduction,” the same term used to describe the kidnapping of Japanese nationals by North Korea. If a child is not returned promptly, the Western countries criticize it as a serious human rights violation. A MOFA insider says, “Even though it’s totally different from the North Korean abductions, [the use of the term] could tarnish Japan’s image in the international community.”
The Supreme Court issued a ruling that attracted a lot of attention in March. It was a Supreme Court hearing in which a U.S.-based father sought the handover of his child based on the Hague convention after the mother had refused to return the child. The father handled the situation differently from the normal court process based on the Hague convention – he filed a habeas corpus appeal, which carries more legal force.
The First Petty Bench of the Supreme Court (Presiding Judge: Atsushi Yamaguchi) ordered the mother to hand over the child to the father, saying that noncompliance to the court order to return the child is considered “an illegal restraint.” The mother gave up on filing an appeal at a retrial in July. She could face imprisonment of up to two years or a penalty if she does not abide by the decision. The case set a precedent by showing that ignoring an order to return a child might develop into a serious habeas corpus appeal. Some in the Japanese government expect that the Supreme Court ruling “will prompt divorced parents to abide by return orders.”
The Ministry of Justice of Japan (MOJ) is also rushing to take measures. It plans to change the rule that stipulates that a child cannot be handed over for compulsory execution unless the parent who took the child away is present. MOJ will consider creating a system that provides protection for children in the presence of the parent that issued the complaint or his/her proxy. Measures will also be taken for when a parent who took a child away hides the child outside the house and asks a person who is with the child not to agree to the handover. MOJ will revise the domestic laws by 2019 at the earliest after fleshing out the details at the Legislative Council, an advisory body to the justice minister.
Justice Minister Yoko Kamikawa also said that the ministry will consider introducing joint custody, which allows both the mother and father to have custody of their children after divorce. Japan is being forced to revisit its traditional ideas about family in line with globalization.