CAN THE PARENT OF A CHILD ABDUCTED TO JAPAN, EVER SEEK THE RETURN OF THEIR CHILD TO AUSTRALIA?

Japan’s acceptance of the Hague Convention on the Civil Aspect of International Child Abduction

“The Hague Convention of the Civil Aspects of International Child Abduction”, concerns the issue of international parental child abductions.

The Convention provides a process in which a parent can retrieve their child who has been abducted or retained in another country by their former spouse or partner, and bring them to their country of origin.

The Convention aims to uphold any existing parenting order, and to protect children from the harmful effects of abduction and wrongful retention, as well as ensuring the opportunity for parent-child visitation or contact. Australia is a signatory to the Convention along with 90 other countries.

In the past it has been particularly difficult to bring back children who had been taken to Japan because it was not a signatory to the Convention until 24 February 2014. Even when the parent with legal guardianship sought his or her right to the return of the child, the majority of the decisions made by the Japanese Courts, were in favour of the parent who was a Japanese national. The Convention however, which took effect in Japan as of 1 April 2014, dictates that the Japanese Ministry of Foreign Affairs is now responsible to fulfil the obligations set out by the Convention.

A parent seeking the return of a child, can make an application for assistance at the Central Authority of his or her own state, or directly to the Japanese Ministry of Foreign Affairs. The Ministry will then review the application and carry out the necessary investigation to locate the missing child and provide assistance leading to a mutually agreeable resolution, such as mediation, in order to arrange for the return of the child.

If the parties cannot resolve the issue, the Japanese Court will decide and can issue an order for the return of the child. The Tokyo and Osaka family courts hear these matters and decide whether the child should be returned to his or her country of origin.

There are some exceptions to the Court issuing an order for the return of the child:

The application is filed to the Court after a period of more than one year has elapsed from the date of wrongful removal or retention, and the child is now settled in a new environment.
The applicant was not the legal guardian of the child at the time of removal or retention.
The applicant had consented to or subsequently agreed to the removal or retention.
There is a serious risk that if the child is returned, he or she would be exposed to physical or psychological harm or otherwise be in an intolerable situation.
If the child objects to being returned, the child’s age and degree of maturity is taken into account

In reality the return order from a Japanese court can still be frustrated by a parent refusing to comply, or when the child is influenced to refuse its return. Consequently the court orders will be meaningless without sanctions for contempt of court. In addition, Japanese Family Court Judges, are accustomed to deciding domestic cases without regard to rules of evidence and the procedures that apply in these Convention cases, add to procedural uncertainty.

Furthermore, while the Japanese courts should publish case resolutions and statistics on successful applications, in reality, this does not appear to be the case. It is due to this lack of published information that it is difficult to find precedents on how the Convention cases have been decided.

Koffels Solicitors & Barristers are experienced in cross border Family Law disputes, and have representation in Japan and around the world.

If you have concerns about your child travelling outside of Australia, it is always best to seek advice and consider the issues that may arise, well before the date of departure. Afterwards may be too late. At best, the retrieval of a child is always a difficult path to take.

Stella Park

Solicitor