Waseda University Institute of Comparative Law

     On May 22, 2013, the Japanese Diet approved the Hague Convention (Hague Convention on the Civil Aspects of International Child Abduction), which established the proper treatment of children in the case of the breakup of a marriage. On June 12 of the same year, an act that would allow for domestic enforcement of said Convention was established in the Diet. This act is scheduled to take effect within the year.

     The purpose of the Hague Convention is to consider the adverse effects of cross-border abduction of children resulting from the infringement of one parent's rights, and to protect the interests of children from such adverse effects. Therefore, in principle, the Hague Convention regulates a system of international cooperation that allows for the prompt return of such children to their original countries of residence and a system of cooperation for the implementation of cross-border visitation and communication between parents and children. This Convention was formulated at the Hague Conference on Private International Law of 1980, and came into effect in 1983. As of June 2013, 90 nations had become signatories to the convention. Among the G8 countries, only Japan had not signed the convention.

     International marriage has rapidly increased among Japanese people over the past several years. At the same time, cases of marriage dissolution, through divorce, for example, have increased. In addition, there have been more cases in which one parent returns to his or her home country with his or her children and without the permission of the other parent. With this as a backdrop, accession to the Hague Convention has been seriously discussed. In Japan, marriages between Japanese females and foreign males account for a significant number of the international marriages, and acts of violence by husbands against wives are frequently behind the dissolution of these marriages. In order to avoid such cases, some wives return home with their children. Considering this situation, some arguments have been put forth to the effect that accession to the Hague Convention should be handled carefully. Therefore, having acquired opinions from intellectuals, the Japanese government (i.e., the Ministry of Foreign Affairs and the Ministry of Justice of Japan) has been careful to spend a great deal of time discussing the advisability and necessity of accession, as well as ways in which to treat domestic acts in the case of accession. As a result, based on the prerequisites for accession to the Hague Convention, the following legislation has been established with regard to the transfer of children.

     First, judgment concerning filing for the return of children must be made in court (i.e., in the Tokyo Family Court or the Osaka Family Court). Reasons for denying the return of children include cases in which the return of children to their habitual residences would cause mental and/or physical harm to the children or would place children in intolerable situations. (Upon judgment as to whether or not such reasons are applicable, the pertinence of the following matters are considered: (a) fear that the relevant child would be the target of physical violence by a petitioner, or of words or deeds that would have a harmfully mental and/or physical impact on the child at such child's habitual residence; (b) fear that if the party who is not the petitioner and the child were to enter the country of habitual residence, such party would be likely to be a target of violence by the petitioner that would cause psychological trauma to the child; and (c) fear that circumstances would make it difficult for the petitioner or the other party to care for the child in the country of habitual residence).

     In addition, in regard to a method of compulsory execution in cases in which orders to return by the court are not observed, subject to a domestic act, a method of indirect compulsory execution will be implemented preferentially (i.e., in cases in which orders to return by the court are not observed, by ordering payment of a certain penalty for a period during which such order is not observed, a method that would indirectly force the return of a child would be used). Moreover, a method involving execution by substitute (i.e., a situation in which delivery of a child would be implemented by designating a court execution officer who undertakes necessary actions to dissolve custody of the child, and by designating an executor for the return of the child) will be used. Taking the child's interests into consideration, necessary actions for dissolving custody of the child can be implemented only if such child stays with a debtor. The relevant location at which such actions are undertaken should, in principle, be the residence of the debtor or the location occupied by the debtor. Moreover, upon return of the child, execution of force against the child is prohibited. If it is likely that execution of force against persons other than the child would cause a harmful impact to the child's mind and body, then force similarly cannot be used. As described above, upon return of the child, various careful measures will be deliberately undertaken. (Additionally, according to media reports, specific guidelines for the return of children are being drafted by the Supreme Court). In addition, prior to achieving the aforementioned compulsory executions, the central authority in Japan (i.e., the Ministry of Foreign Affairs of Japan) urges the investigation into and confirmation of the location of the child in question, as well as resolution through mutual consultation between the concerned parties, in order to promote the voluntary return of the child. Various arrangements for the aforementioned matters have been made by the Ministry of Foreign Affairs of Japan. Furthermore, the Ministry of Foreign Affairs of Japan is also working on a variety of approaches for implementation of visitation and communication targeting the concerned parties (and various handling institutions in response to the intentions of such parties).