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Japan Adopts Hague Convention on Child Abduction

Charles C . Shainberg, Esq. on 11/18/2013
Article Image Japan has finally adopted the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. While there are currently thirty nine (39) different Hague conventions covering various aspects of international law between the seventy four (74) member states, probably the most well known is the Convention on child abduction. This Convention helps courts of signatory states determine which country has jurisdiction to decide a given child custody case. It also gives the appropriate courts the authority to order the return of children to their country of habitual residence, in cases where they have been removed from that country or retained without proper authority. In 1988 the United States adopted the Convention and passed the necessary legislation. 42 U.S.C. 11601 et seq. Japan's government approved their legislation in July 2013 and it will become effective in April of 2014.

For many years there have been many cases in which Japanese women, married to non-Japanese fathers, took their children to Japan and refused to return the children or permit the fathers access to the children. Since the Japanese courts do not recognize the concept of joint custody they usually award sole custody to the Japanese mothers, effectively denying access rights to non-Japanese fathers. The majority of these cases have involved fathers from the United States, although this is also a problem for fathers from other countries.

Two Japanese representatives who will be involved with Japan's implementation of the Convention visited with Hon. Robert J. Matthews (ret.) of our Philadelphia Family Court and myself this past August. Ayako Ikeda is a family lawyer in Tokyo who will be heavily involved with the implementation of this Hague Convention in Japan. Ms. Ikeda is also a Fellow of the International Academy of Matrimonial lawyers. Kenichiro Arakaki is the Chief Inspector, Investigative Planning Division, Okinawa Prefectural Police Headquarters. They explained that Hague abduction cases in Japan will be heard in either Tokyo or Osaka, assigned to a division of the Japan Family Court, with judges who will be familiar with the Hague Convention. In contrast, in the United States, Hague Convention cases can be heard in state family court or Federal District courts.

Since Japan's adoption of the Convention is not retroactive, there remain several hundred parents whose cases will not be addressed by the Convention for the return of children. However, Article 21 of the Convention specifically deals with the access rights of the non-custodial parent to see their children. It will be interesting to see how Japan deals with Article 21.

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