Japan to join the Hague Child Abduction Convention

By Ayako Ikeda

Posted: 28th October 2011 10:09

Family law is an important legal practice as it concerns persons, their family and domestic relations as well as property rights within those relations.  Our legal services extend to this practice area, including in matters of divorce, division of assets, wills and succession, as well as corporate matters such as family business and joint property ownership by family members.

If a family law matter is in some way related to Japan, such as Japanese real properties, shares of a Japanese company or a Japanese resident, knowledge of Japanese law and procedures may be decisive in the successful conclusion of the case.  For example, a lawsuit in a foreign country may not be recognised in Japan if proper steps under Japanese law were not taken.  We work closely with foreign attorneys in determining the best way to proceed with a case that has a Japanese aspect in order to ensure a most efficient resolution.  

It often happens that in considering various aspects of a transaction or personal matters such as residence, where to invest family savings or where to buy property, or commencing legal action, several jurisdictions appear to be relevant at first but, after examining the matters closely, some jurisdictions turn out to be totally unacceptable for a client.  It is, therefore, extremely important to examine potential jurisdictions before hand, particularly when initiating legal proceedings in any country, in order to avoid or minimise later confusion or an unfavourable impact on one’s interest.

One contentious family issue in Japan now is child abduction, as Japan is not a party to the 1980 Hague Child Abduction Convention, a fact that has been criticised by other countries.  Typically, a Japanese woman marries a foreign man and the couple live together in a foreign country.  The wife gives birth to their children.  A few years later, she becomes unhappy with the marriage and takes the children back to Japan without her husband’s approval.  Once she goes back to Japan, it is very difficult for the husband left behind to get the children back.  If the country is a party to the Hague Child Abduction Convention (the “Convention”), the husband will be able to initiate a proceeding (the “Hague proceeding”) so that their children may be able to return to their habitual residence (except for certain exceptional cases).  Such proceedings, however, are not currently available in Japan.  Thus, there have been a number of Japanese wives who have returned to Japan with the children and refused to return the children.  In Japan, such “abduction” would not be considered a criminal offence so long as the mother brings her children back without violence or any unusual manner.  It is usually after bringing the children back that the wives realise for the first time that such “abduction” is considered a criminal offence in some foreign countries and that they may be arrested if they go back to the children’s habitual residence.

It is the Convention’s main objective to protect children from the harmful effects of parental abduction and retention by providing a procedure to bring about their prompt return. 

The Japanese government has recently decided to join the Convention and is now preparing a law to implement the Convention in Japan.  This law is expected to be passed in the Diet early next year and to take effect shortly thereafter.  When Japan becomes a party to the Convention and its implementing law comes into force, the prompt return of the children would be possible.  Any benefit however is prospective in nature.  As provided by the Convention itself, the provisions of the Convention will apply only to wrongful removals or retentions occurring after a country becomes a member of the Convention.  Therefore, those who have been wrongfully removed now will not be subject to the Convention. 

Under the Convention, there should be a Central Authority in a member country which will have a major role in administering the Convention.  The Central Authority in Japan will be the Ministry of Foreign Affairs.  It will coordinate with the Central Authorities of the other member countries and provide necessary information in Japan as well as abroad. 

The Hague proceeding will be conducted in a Japanese family court, based on detailed procedures to be provided in the implementing law.  If a left-behind parent wants to file a Hague proceeding in Japan, he must first contact the Central Authority of the children’s habitual residence and that Central Authority will then contact the Japanese Ministry of Foreign Affairs.  Then, the Ministry of Foreign Affairs will contact a family court in Japan to proceed. 

In addition to the formal Hague proceeding, Japan will have a conciliation system to encourage the parents to settle custody and visitation issues amicably.  For a long time, we have had family courts where a number of family matters have been settled amicably through their conciliation proceedings.  Conciliation proceedings are conducted by a conciliation committee, normally composed of a judge and two Conciliation Commissioners for Domestic Relations.  The Conciliation Commissioners will hear the case from both parties and attempt to guide the parties to reach an agreement which is just and appropriate for the welfare of both parties and other interested persons.  It will of course be necessary for the conciliation committees to modify their practice in Hague proceedings so that left-behind parents, who live abroad, can participate in the conciliation process without much difficulty. 

It is expected that, in addition to the family courts, there will be several conciliation organisations which will handle the custody and visitation issues in Hague cases.  These organisations are currently drafting the special process for Hague proceedings and we will know the details when our implementing law comes into effect.  Bar associations, which are composed of practicing attorneys, will also set up a special conciliation process for Hague proceedings (or, more broadly, international marriage cases) and seek to serve those who need another forum for conciliation.

 

Ayako Ikeda, Attorney-at-law, Partner, Mori Hamada & Matsumoto

University of Tokyo (LL.B., 1982),  London University (LL.M., 1985),

Georgetown University Law Center (LL.M., 1991)

admitted in Japan, 1984; New York, 1991

Professor at The Legal Training and Research Institute

(Affiliated to the Supreme Court of Japan, 2002-2005)

Deputy Secretary General of Japan Federation of Bar Associations (2006-2008)

Director of Public Relations Office of Daini Tokyo Bar Association (2009-2011)

Member of Information Disclosure and Personal Information Protection Review Board, Cabinet Office (April 2010-)

Fellow of International Academy of Matrimonial Lawyers

Major Practice Area

International Litigation

Family Law with International Aspects

Ayako Ikeda can be contacted on +81 36212 8301 or by email at ayako.ikeda@mhmjapan.com

 


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