“All days are nights…till I see thee”

Author: Teresa Cullen

On 1 April 2014 Japan will formally accede to the Hague Convention on Civil Aspects of International Child Abduction. The Japanese parliament approved the ratification of the Convention on Friday 24 January 2014, having been subject to significant international pressure from the other 90 countries around the world who are already signatories. The Convention sets out the rules and procedures for one parent to require the return of a child who has been taken by the other parent from their country of habitual residence. The idea is to safeguard children who in the midst of a family breakdown are often rapidly removed to the mother’s or father’s place of origin without the other parent’s knowledge or consent. It is particularly important given the number of bi-national marriages which have become far more common amongst people living in England and Wales, and particularly in London given its diverse population.

The sad statistics are that the number of parental child abductions from the UK has doubled in the last decade. Last year alone more than 500 children were abducted by their parents, with mothers being the main abductors. The Foreign and Commonwealth Office have even taken to YouTube to raise awareness of the issue with their video clip “Caught in the middle”.

Previously the 90 countries who were signatories to the Convention set down procedures for the children to be returned to their country of residence, and for the court there to determine whether or not the parent who wished to leave (often to go home) should be allowed to remove the child permanently from the jurisdiction.

In England a parent wishing to remove a child from the jurisdiction on a permanent basis must either obtain the agreement of the remaining parent, or else apply to the court for permission to do so. Countries that have not signed the Hague Convention tend not to comply with requests from the remaining parent (and their country) to return children. Parents who have abducted their children and returned to their country of origin are obviously very often unwilling to return the children voluntarily.

In Japan’s case there are a significant number of Japanese nationals married to other nationals, particularly in the UK and USA. As such they will now be governed by the Convention, and in the event of their abducting their children and returning to Japan with them, where they would often choose to be, there are now procedures for the Japanese authorities to become involved in facilitating the return of the child.

Japan has indicated that it will adhere to the Convention, save that it has inserted an exception in cases where it believes there has been domestic violence and the child might be endangered by their return.

Now that Japan has adopted the Convention there will also be advantages for Japanese nationals living in England and Wales. These include easing the courts’ former reluctance, in certain cases, to allow a child to be taken to Japan by one parent for “a holiday”. The reality is that the child will not be returned here. Now the court and the remaining parent can be assured that there are mechanisms in place to safeguard the return of the child.

Japan’s accession to the Convention has been welcomed internationally and, particularly in the light of the increase in abductions, is to be welcomed by Japanese nationals in England and Wales.

It is often difficult for different jurisdictions to accept the diverse ways in which marriages are brought to an end, finances resolved and the issue of children’s care ruled on. In Japan the civil code normally awards custody over children to only one parent, as opposed to it frequently being a joint order in favour of both parents in the English courts.

In short, this change is good news for separating parents, good news for Japan (in that they can now reciprocally seek the return of children wrongly taken from Japan and it will be easier to obtain permission from the court in England and Wales for children to head to Japan for short trips) and above all it is good news for children.

Teresa Cullen, Partner, Fladgate LLP (tcullen@fladgate.com)

View by date:

View by author:

Would you like to hear more?