Child Abduction to Japan with particular reference to the problem of domestic violence

1. Child Abduction to Japanwith particular reference to the problem of domestic violence Presentation at Université Panthéon-Assas 9 April 2010 Koji Takahashi (Doshisha University, Japan)

2. On diplomatic agendasince 2009 • 35 cases presented by France to Japan in December 2009. • 73 cases from the U.S., 36 cases from Canada, 33 cases from the U.K. (October 2009) • Japan and Russia are the only G8 countries yet to accede to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. • The Convention does not apply retrospectively (Art 35).

3. How to recover abducted children from Japan • Obtain a return order by establishing the custody right: • (1) in Japan. • (2) in the country of origin and seek its enforcement in Japan. • In either way, it will be too late if the child is already settled in the new environment in Japan for the reasons we will see. It would be better to secure the return of the child first before engaging in custody litigation. The Hague Convention would be useful in this context but Japan is not a party. Instead, (3) the habeas corpus procedure is available.

4. (1) Obtain a return order in Japan • The Japanese courts have jurisdiction if the child has residence (jyûsho) in Japan. • The governing law is the law of the nationality of the child if it is the same asthat of either parent and, if not, the law of the child’s habitual residence. • However, if the child is already settled in the new environment in Japan, the custody right is likely to be awarded to the parent in Japan. If the applicable foreign law leads to a different result, it may be excluded by the public policy of Japan. • An interim measure of protection is available. • Ineffective enforcement method for a return order: in general only by way of astreinte.

5. (2) Get a return order in the country of origin and seek its enforcement in Japan • The Japanese courts will grant exequatur if they find that the normal requirements for recognition / enforcement of foreign judgments are met. • Conclusiveness of the decision • Indirect competence of the foreign court • Service of process • Procedural and substantive public policy • Reciprocity

6. (2) Get a return order in the country of origin and seek its enforcement in Japan • Indirect competence: the child’s residence. • c.f. Nagoya District Court on 24 November 1999 (recognised an Oregon judgment awarding a U.S. national the parental right over her child. That judgment was rendered one year after she had removed the child from Japan (where they and the Japanese father had residence) to Oregon). • If the whereabouts of the Japanese spouse is unknown, service by publication is insufficient. • Supreme Court on 24 June 1996 (held that a German judgment on divorce and custody rights was not entitled to recognition in Japan since the service was effected by publication. Earlier, the father (Japanese) had removed the child from Germany (where they and the German mother had residence) to Japan.)

7. (2) Get a return order in the country of origin and seek its enforcement in Japan • If the child is already settled in Japan, the public policy of Japan may prevent enforcement. • Tokyo High Court on 15 November 1993 (refused to grant exequatur to a Texas judgment ordering a Japanese national to return her child to her former husband (a U.S. national) living in Texas, holding that granting exequatur would violate the public policy of Japan in the circumstances where the child, who would soon reach the age of 11 after a four year stay in Japan, was already settled in the Japanese environment and could no longer speak or understand English.) • The exequatur decision may be appealed, which would cause further delay. • An interim order is not entitled to recognition: Supreme Court on 26 February 1985.

8. (3) How to quickly recover an abducted child from Japan • The Hague Convention (Japan is not a party) • Before conclusively settling the question of custody rights, swiftly return the children to the country of their habitual residence, from which they have been removed in contravention of the (prima facie) custody right. • That the child is settled in the new environment per se is not a good reason to refuse ordering the return if the proceedings are commenced less than one year after the removal (Article 12).

9. (3) How to quickly recover an abducted child from Japan • Habeas corpus procedure: • Releases a person from an unlawful detention. • Common law origin. • May be invoked against both public and private detentions. • Expeditious proceedings (cf. custody litigation). • Disobedience will attract sanctions such as imprisonment (cf. a return order based on custody right). • In child abduction cases, the most important consideration is the child’s best interest.

10. Japanese Habeas Corpus Act • Supreme Court on 29 June 1977 (ordered a Japanese national to hand over his infant child to its mother (a U.S. national) living in the U.S. under the Japanese Habeas Corpus Act, holding that the handover would accord with the child’s best interest, although the custody right was shared by both parents and the child, born in Japan, hardly understood English.) • Supreme Court on 25 February 1985 (refused to order a Japanese national to hand over his child to his wife (an Italian national) under the Japanese Habeas Corpus Act, holding that in determining the best interest of the child, it was immaterial that the father had brought the child with him to Japan from their place of residence in Italy without his wife’s consent. Since that incident, nearly three years had passed and the child was settled in the Japanese environment.) • Recent cases suggest that obtaining release from a parent having a joint custody right is difficult (cf. Hague Convention).

11. Disincentives for Japan to accede to the Hague Convention • Need to reform the domestic law to implement the Convention. • Designation of the central authority. • Creation of expeditious procedure. • Opposition from the victims of domestic violence and their supporters. • Most of the cases with the western countries are those of Japanese women taking their children to Japan. The opposite pattern may exist with the countries of east and southeast Asia. Such countries are not parties to the Hague Convention.

12. Arguments in favour of accession • The merit of the Convention: prevent forum shopping over custody litigation by discouraging abduction (unilateral self-help). • There were cases in which children were taken out of Japan and the Japanese parents had to fight a custody battle in a State party to the Convention. • Some foreign courts hearing a divorce/custody case denied the Japanese parents access to their children or refused them to take their children to Japan, fearing that children may never be returned from Japan.

13. Does the Convention allow victims of domestic violence to retain their child? • Article 13 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State 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 place the child in an intolerable situation.

14. Does the Convention allow victims of domestic violence to retain their child? • S. v. S. [1999] NZFLR 625 (HC/E/NZ 296) [High Court of New Zealand at Auckland] • held that notwithstanding the domestic violence, the Convention could not be used to restore some kind of justice between the parents. The focus has to be kept firmly upon children. • Are histories of violence to the child necessary to show a “grave risk” of physical or psychological harm to the child? • “otherwise place the child in an intolerable situation”: The UK delegate in the XIVth session gave the example of a mother fleeing domestic violence without the child being in immediate harm.

15. Does the Convention allow victims of domestic violence to retain their child? • Sonderup v. Tondelli [2000] ZACC 26 [Constitutional Court of South Africa] • Held obiter that the impact on children and families of violence against women should not be trivialised; and that where there was an established pattern of domestic violence, even though not directed at the child, it might very well be that return might place the child at grave risk of harm as contemplated by Article 13. • Re W. (A Child) [2004] EWCA Civ 1366 [England] • Wall L.J. held obiter that if the effect on the mother of the father's violence was severe, the absence of specific abuse of the child would not hinder the success of the Article 13 (1)(b) exception, noting that the position of the child was vitally affected by the position of the child's mother.

16. Does the Convention allow victims of domestic violence to retain their child? • Article 20 • The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. • c.f. Tokyo District Court on 30 January 2004 (upheld jurisdiction over divorce on the ground that requiring the plaintiff to initiate divorce proceedings in France would expose her in France to a great danger of receiving violence from her husband again, noting that she had left France with her baby for Japan to escape from his domestic violence.)

17. Does the Convention allow victims of domestic violence to retain their child? • Undertakings • e.g. In re Walsh (1998) 31 F.Supp.2d 200 "If [the mother] does return to Ireland . . . [the father] must have no contact with her nor come within 10 miles of her residence …." • Sanctions for violation: forfeiture of a bond, contempt of court, dismissal of future Hague petitions. • However, unlikely to be enforced in other countries. • Making return contingent on a ‘safe harbor‘ order in the country to which the child is to be returned. • Neither is mentioned in the Hague Convention. Neither is likely to be available in the civil law jurisdictions.

18. Domestic ViolenceBibliography • Grilli, Regan Fordice “Domestic Violence: Is It Being Sanctioned by the Hague Convention” 4 Sw. J. L. & Trade Am. 71 (1997) • Kaye, Miranda “Hague Convention and the Flight from Domestic Violence: How Women and Children Are Being Returned by Coach and Four” 13 Int'l J.L. Pol. & Fam. 191 (1999) • Weiner, Merle “International Child Abduction and the Escape from Domestic Violence” 69 Fordham L. Rev. 593 (2002) • Hoegger, Roxanne “What If She Leaves - Domestic Violence Cases under the Hague Convention and the Insufficiency of the Undertakings Remedy” 18 Berkeley Women's L.J. 181 (2003) • Lewis, Jeanine “Hague Convention on the Civil Aspects of International Child Abduction: When Domestic Violence and Child Abuse Impact the Goal of Comity” 13 Transnat'l Law. 391 (2000)