Sunday, June 29, 2014

A clash of expectations: Japan joins the Hague Abduction Convention

After years of criticism for being a ‘black hole’ of parental kidnapping and increasingly public diplomatic pressure, Japan is finally a party to the Hague Convention on the Civil Aspects of International Child Abduction. But will it make any difference?

In the late 19th century Japan had to deal with other treaties: the ‘unequal treaties’ imposed on it by Western powers, which rendered foreigners immune from Japanese law and court jurisdiction and infringed national sovereignty. Renegotiating these treaties involved a crash program of adopting laws and institutions copied from western models. Appearing to be a country with ‘civilized’ (Western-style) legal institutions was critical to being treated equally by the West. What these new laws and institutions meant for the Japanese people was sometimes an afterthought; the resulting gap between the formal legal system and how it actually works in practice remains one of the interesting facets of Japanese law.

Thus, it remains to be seen whether Japan will go beyond just appearing to have joined the Hague Convention.

A common misconception about the Convention is that joining it is a requirement for having abducted children returned. This is untrue: children were being returned to Japan from the United States, Canada, England and other signatory nations before Tokyo ever inked the treaty. Other than establishing an expedited process and basic guiding principles, the Convention does not magically give judges any new powers. Furthermore, given the Convention principle that it is in the best interests of children to be returned to their jurisdiction of habitual residence, there is no logical reason to let a child remain just because they originated from a country that has not signed the treaty.

With Japan, the real issue has always been one of the willingness and ability of its judges to do more than simply ratify whatever status quo happens to apply to a child when the case comes into court. Japanese family courts in particular have few coercive powers to bring about the return of a child even in domestic cases. But civil enforcement is only part of the picture.

Arrest or the threat thereof can be a powerful tool for remedying abduction. Yet in the past Japanese law enforcement has used what appear to be highly situational interpretations of the criminal law. When a Japanese mother unilaterally brought a child to Japan (even in violation of a foreign court order), police would decline to act, declaring that it is not a crime, not ‘abduction’ when a parent does such things. Yet foreign fathers trying to take children out of Japan have been arrested for just that — child abduction. This apparent double standard has exacerbated perceptions of a lack of will on the part of Japan’s legal system to deal with the problem.

Based on the massive statute the Diet passed to establish a whole new procedural regime just for cases under the Convention, there certainly appears to be a willingness to address the problem, or at least the foreign criticism it has engendered. Yet it is still up to Japan’s highly bureaucratic courts to actually order returns, or avail themselves of the broadly defined exceptions contained in the implementing legislation. Japanese court enforcement officers have already caucused and declared it unlikely that return orders can be directly enforced against a child who refuses to cooperate.

Meanwhile, the Ministry of Foreign Affairs, Japan’s central authority for handling cases under the Convention, is establishing a mediation system for such cases in the hope that many can be resolved amicably. Of course, this is an admirable goal but if executed poorly could result in a lot of well-intentioned talking without concrete results. International child abductions often involve tremendous anger and loss of trust, meaning it may be unrealistic to expect amicable resolutions in many cases.

Now that Japan has joined the Convention, it will be interesting to see how Japan’s courts measure up to expectations. Foreign diplomats, parents and other observers who have been following the abduction problem in Japan doubtless expect that, as a treaty signatory, Japan’s courts will start to generate different results than they have in the past and order returns.

Having joined the Convention primarily as the result of foreign pressure, rather than homegrown acceptance of its underlying principles, Japan’s leaders for their part may expect recognition of the significant effort involved in doing so, regardless of what happens in its courts.

Colin P.A. Jones is a Professor at the Doshisha Law School, Doshisha University, Kyoto. The author is registered as a mediator candidate with one of the dispute resolution centres in this system.


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