On April 14, 2014, the Japanese law implementing the Hague Abduction Convention in Japan took effect.
That act, referred to in this article as the "Implementing Act" states that, "A person whose rights of custody with respect to a child are breached due to removal to or retention in Japan may file a petition against the person who takes care of the child with a Family Court to seek an order to return the child to the state of habitual residence pursuant to the provisions of this Act." The Japanese Family Courts will then require the advocating attorney to submit a power of attorney with the original motion, as well as a clearly written statement regarding the cause of action and the supporting evidence.
The Implementing Act does not define the key term of "habitual residence." Determining the child's habitual residence is a threshold issue in any Hague Abduction Convention case, and if the court determines that the country from which the child was removed was not his or her place of habitual residence, the Convention will not apply and the petition should be dismissed. There has been enormous diversity as to how this phrase has been interpreted in various United States courts (it is always very fact-sensitive), but there is some precedent in Japan via lower courts that have made decisions regarding the phrase when deciding which applicable laws to apply in certain cases.
An essential element of any case under the Convention is that, "pursuant to the laws or regulations of the state of habitual residence, said removal or retention breaches the rights of custody with respect to the child attributed to the petitioner." The Japanese family law system uses two separate, but similar provisions regarding custody and parental responsibility. Article 818(3) of the Japanese Civil Code provides that, "Parental authority shall be exercised jointly by married parents." This means that while the parents are married they have joint shinken, which is commonly understood to mean parental authority. A person who holds shinken rights has the duty to care for and educate the child (Article 820), the right to determine the child's residence. (Article 821) and the right to administer the child's property (Article 824). If a child is born out of wedlock, generally only the mother possesses shinken rights (unless the parents agree or a court orders that the father has shinken). If the parents are married, the shinken is commonly decided via court order after a divorce and is usually granted only to one parent.
In addition to shinken the Civil Code employs the term Ko no Kango ni Kansuru Shobun, often referred to askangoken. Kangoken comprises rights somewhat akin to physical custody. While the parents are married and cohabiting,kangoken is part of shinken and is exercised jointly by both parents. However, Article 766 of the Civil Code authorizes a court to divide kangoken from shinken, perhaps giving the father shinken rights akin to legal custody and giving the motherkangoken rights akin to physical custody.
This aspect of Japanese family law will likely lead to challenging issues in cases in which children are alleged to have been abducted out of Japan.
The Implementing Act contains provisions concerning the "grave risk" defense that are extremely troubling. Article 13(b) of the Convention provides that a court is not bound to order the return of the child if the person, institution, or other body which opposes its return establishes that . . . (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise would place the child in an intolerable situation."
The Perez-Vera Explanatory Report on the Convention states that the grave risk defense must be "interpreted in a restrictive fashion if the Convention is not to become a dead letter." However Article 28(2) of the Implementing Act contains extremely broad language, instructing a court when considering the grave risk defense that it should "consider all circumstances such as those listed below:
(i) Whether or not there is a risk that the child would be subject to the words and deeds, such as physical violence, which would cause physical or psychological harm (referred to as "violence, etc." in the following item) by the petitioner, in the state of habitual residence;
(ii) Whether or not there is a risk that the respondent would be subject to violence, etc. by the petitioner in such a manner as to cause psychological harm to the child, if the respondent and the child entered into the state of habitual residence;
(iii) Whether or not there are circumstances that make it difficult for the petitioner or the respondent to provide care for the child in the state of habitual residence."
Subsection (iii) of Article 28(2) is particularly disturbing since it opens the door to a consideration of factors that should have little or nothing to do with a Hague case. If the Japanese courts were to apply subsection (iii), or to otherwise provide an overly broad interpretation of the grave risk exception, Japan would be in violation of the treaty obligations that it has assumed by joining the community of nations in becoming bound to the Convention.
As to the "child's objections" defense under the Convention, Japanese family courts regularly use internal investigators,chousakan. If a judge finds it necessary to examine the objections of a child, it is very likely that a report will be ordered from the chousakan. This report's conclusions will probably be given great weight by the court in deciding whether to order a return or not.
If there is a risk that a party may remove the child from Japan prior to the end of the case, a court may rule that the child must remain in Japan until a decision has been rendered (a ne exeat order). A court can also order that the passports of the child should be retained by the Minister for Foreign Affairs, and it can suspend other proceedings related to the matter that may be pending elsewhere.
The Implementing Act contains provisions to promote mediation of Hague Convention cases. A grave concern in this regard is that, although mediation in conventional divorce and custody cases is used extensively in Japan, it has proven to be an extremely difficult process for non-Japanese parties. It is greatly to be hoped that mediation will not be forced upon left-behind parents in Hague cases and will not be used to delay such cases or to pressure non-Japanese parents to accept unfair proposals.
If a return order is issued, it will take effect after notice to the parties, which becomes enforceable only after "the expiring of the period for filing an immediate appeal." This immediate appeal must be filed within two weeks. If ultimately denied, the order will be enforceable and any seized passports will be returned to the respondent.
Most unusually, the Implementing Act contains extensive provisions for enforcement of a return order. It is quite unprecedented in the arena of family law matters concerning children for Japanese courts to issue orders that can be enforced against an unwilling defendant. This, child custody and visitation orders in Japan have traditionally been unenforceable. The drafters of the Enabling Act were required to write detailed legislation that for the first time provides enforcement mechanisms for court orders in this area. Time will tell whether they prove to be effective.
*Jeremy Morley has represented very many Japanese and non-Japanese clients throughout the United States and in many countries elsewhere, always in collaboration with local counsel, in international family law matters concerning Japan. He has also submitted expert evidence to numerous courts on international family matters concerning Japan and on Japanese child custody law.