Cross-Border Child Abduction

Here is some text from a May 2003 Japan Federation of Bar Associations report to the UN Committee on the Rights of the Child (cached copy).

Recommended Changes

In order to retrieve a child brought to Japan, or a child sent overseas as a result of arguments between the child’s father and mother, the Japanese government should accede to the 1980 Hague Convention on Civil Aspects of International Child Abduction.

Discussion

1. According to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, if a child is sent overseas by one of his/her parents who are separated or divorced, the child can be retrieved. Specifically, if the parent who has been deprived of his/her child files a complaint in the country that they are resident in, the complaint can be transferred to the country in which the child lives, and then the government of such country will take all necessary measures. There are more than 50 state parties affiliated to this Convention.

However, since Japan is not affiliated to this Convention, it is among those countries where it is extremely difficult to retrieve a child brought to Japan, or a child sent overseas. In reality, only one case has been made public, where a foreign spouse could successfully retrieve a child from a Japanese spouse (judgment at the Supreme Court, June 29, 1978). On the contrary, failed examples include the judgments ruled by the Supreme Court on February 26, 1985; Tokyo High Court on November 15, 1993, etc. One of the grounds for these judgments is that a long time had passed since the child was brought to Japan. However, this was due to the time it took for the parents deprived of their child to find the child by themselves and file a suit.

In order to avoid this inconvenience, the 1980 Hague Convention was established, however Japan is not yet a state party. The responsibility for not retrieving a child is solely with the Japanese government. According to one mass media report, American parents who cannot retrieve their children sent out to Japan are considering taking class actions against the Japanese government.

(http://www.asahi.com/english/weekend/K2002012700081.html).

2. There is also a precedent where, in order to retrieve a child who was sent overseas as an adopted child, the birth parents filed a suit to seek habeas corpus in Japan. The case was refused on the grounds that a suit cannot be filed on a child residing overseas (judgment by the Osaka District Court, June 16, 1980). As a result the birth parents must bring this case to a foreign court, however, there is no system in place to enable the Japanese government to provide support.

3. These trial proceedings are only a small part of cases where parents, etc. retrieve a child. It is assumed that, in reality, there are many parents who give up trying to retrieve their child because even the whereabouts of their child is unknown. The Japanese government should therefore immediately accede to the 1980 Hague Convention in order to remove the difficulty of retrieving the child. Unless it does so the government will be in violation of Articles 11 and 35 of the Convention. These articles stipulate the obligation to conclude bilateral or multilateral agreements or accession to existing agreements in order to prevent the illicit transfer and abduction of children overseas.

4. It is also noted that, in para. 188, the Government referred to Article 8, Paragraph 2 of the Law for Punishing Acts Related to Child Prostitution and Child Pornography, and for Protecting Children, and stated: “Japanese nationals transferring a child to a foreign country who has been kidnapped, abducted and traded out of that country shall be punished.” However, this provision is applied only in cases such as those involving child prostitution and child pornography. It does not deal with civil matters such as those cases involving the returning of a child to the country they previously resided in. This means that the government has not fulfilled its obligations under Article 11 of the Convention.