Curzon’s post on the Savoie divorce and child abduction case spawned the longest comment thread in our blog’s history, and the case itself brought a lot of international media attention to the child abduction problem in Japan, which was for a long time known only to a growing group of estranged parents.
One result of all the attention is that Japan is considering signing up to the Hague Convention on the Civil Aspects of International Child Abduction, which provides a legal mechanism for countries to cooperate when children are taken across borders in violation of legal custody arrangements. This is a good and reasonable thing for Japan to do — the treaty is already in force in most Western countries, and would not only give effect to foreign custody orders in Japan, but would also help to protect Japanese parents from losing access to their children if a partner suddenly takes a child out of Japan.
That said, international law is consensually adopted by a variety of countries, and tends to have holes wide enough to sail a ship through. Debito notes that “intimations have been made that Japan will sign but will then create domestic laws and other loopholes so it doesn’t have to follow it.” Actually, Japan doesn’t need to — there are enormous loopholes in the text of the treaty itself. Take a look at this section:
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 –
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
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.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.
Now, what is the definition of an “intolerable situation?” Or, for that matter, even the more specific term “physical or psychological harm?” The treaty does not say. So even if there is a binding custody order in another country, Japan’s authority (probably the justice ministry, perhaps the courts) could ignore it upon finding that any kind of “intolerable situation” would exist on the other side of the water, and Japan would still be fully compliant with its treaty obligations.
What is good about the Hague Convention is that it provides a mechanism for this review to take place. Once Japan signs up, its courts could not simply stonewall a foreign parent by refusing to consider their custody rights overseas. However, Japan would still maintain the power to keep kids from “going home” in egregious situations such as the Savoie case. So why not sign up?