Why the Hague Convention is not such a big deal (but Japan ought to sign anyway)

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:

Article 13

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?

25 thoughts on “Why the Hague Convention is not such a big deal (but Japan ought to sign anyway)”

  1. “Japan would still maintain the power to keep kids from ‘going home’ in egregious situations such as the Savoie case”

    The Savoie case may look a total mess now but at the point his wife failed to return to the US and was in breach of the court order, he would have had one of the strongest possible cases under Hague. If Japan had been a signatory, and yet a court didn’t order his children returned to the US, then it’s difficult to imagine in what circumstances any return would be ordered.

    I’ve often made the point that Hague is not the cure-all which left-behind parents appear to imagine it to be, even leaving aside that it will not retroactively apply to any current case. It’s also a widely misunderstood convention judging from some of the claims you see bandied about on forums.

    We don’t know in what way Japan plans to change domestic regulations to accommodate, in principle, treaty obligations so it’s all speculation at the moment. If it turns out that courts repeatedly choose not to return children then Japan might find itself named by the US State department as a non-compliant convention signatory. The question will then be whether Japan cares.

    Japan certainly didn’t enjoy being named by the State Department as a haven for human traffickers but has not responded at all to being found wanting in its obligations under the OECD Convention on Combating the Bribery of Foreign Public Officials in International Business Transactions. The US State Department currently finds Switzerland to be demonstrating “patterns of non compliance” with regard to Hague so there’s already a track record of at least one developed country which isn’t entirely on side.

    It will be interesting to see if the act of signing Hague affects behaviour. Will Japanese parents become more reluctant to unilaterally take their children to Japan if there is no longer a guarantee they will be beyond the law? I suppose it’s possible but evidence from other countries isn’t too supportive. In essence, the majority of abducting parents are either unaware of Hague or sure that it won’t apply to them.

    Of course, it might be different if a Japanese court did order the return of children because that would likely become a high profile story.

  2. Just to be clear, I agree that Japan should sign the Hague. I’m just skeptical that it will make all that much of a difference or be abided by. No matter. Sign. I agree with Joe. Debito

  3. “The Savoie case may look a total mess now but at the point his wife failed to return to the US and was in breach of the court order, he would have had one of the strongest possible cases under Hague. If Japan had been a signatory, and yet a court didn’t order his children returned to the US, then it’s difficult to imagine in what circumstances any return would be ordered.”

    Too many “if”s.Mulboyne.

    First of all,Chris Savoie is supposed to be a Japanese national and only.
    Secondly,Japan isn’t a signatory.

    Should Japan even sign the Hague Convention? China,Taiwan,South/North Korea,The Phillipines and Thailand are all non members.And the nationals from these six nations have most of the shares in international marriages in Japan.
    Any decisions should have the interest of Japanese nationals first and not the foreign pressures.

  4. “Too many ‘ifs’, Mulboyne.”

    Only one “if”, and that was originally Joe’s when he wrote about how a case like Savoie’s could have been treated under Hague with Japan as a signatory. Perhaps you should take your concerns up with him instead.

    I continue to be surprised at the importance attached to Savoie’s nationality. Since he holds two passports, both Japan and the US are free to treat him as one of their own citizens. Japan could also take his nationality qualification away but I’m unaware of them seeking to do so. To assume his nationality has material importance is to assume a US court would have refused to process his divorce if it had known he also held a Japanese passport. Or perhaps to assume a court would not have approved his settlement. Or to assume that a Hague court would use it as a reason to excuse his ex-wife’s criminal flight.

    Too many assumptions, Aceface.

  5. I am wondering, what, exactly, makes the Savoie case egregious?

    The only thing remarkable about it is the amount of press attention that was put on it, due to the efforts of Mr. Savoie and Mrs. Savoie #2. The issue was pushed out there in ways that previous efforts had not been. Granted, Chris Savoie had the work of those who came before, to build on.

  6. Looks like a Hague case could easily be crushed by any allegation of violence.

    Savoie, it seems, has little chance of a Hague victory: his having used violence in the Fukuoka incident would lend strength to any allegation that he had used it before (no reason to think that he did) and those posts by his new wife describing his ex as insane and whatnot could certainly be described as indicating a hostile / intolerable situation. Also, the 6 million dollar lawsuit also seems like it would only complicate a Hague case.

    If Japan does sign, however, it could clear up some of those insane cases that we have heard about – like grandparents taking a child after a fleeing mother / child kidnapper dies and not allowing a father with custody outside Japan access.

  7. “Savoie, it seems, has little chance of a Hague victory: his having used violence in the Fukuoka incident would lend strength to any allegation”

    This seems a little confused. If you discuss Savoie’s case on the premise that Japan was a signatory to Hague then it would be natural to assume he would not have gone to Fukuoka to repossess his children but would instead have instigated legal proceedings. You can’t present evidence in a hypothetical which wouldn’t have existed under the hypothesis.

    Or are you perhaps assuming instead that Savoie will somehow be able to use Hague in the future if Japan signs? I don’t think it will apply to him but am prepared to be put straight on the matter if someone believes differently.

  8. I wasn’t doing a “what if”. What I mean is that DV or no DV, the way that the Hague is worded seems to give spouses who have fled a strong incentive to claim it. Given how evidence for these matters is weighed and the potential stakes, you can almost say that they would be crazy not to.

    The claim will receive scrutiny in any case, but now any judge has an example of Savoie using violence against his wife. Lawyers start divorce cases by asking if there is any evidence of physical, verbal, etc. violence that can be used to their client’s advantage, no?

    I don’t at all think that Savoie was abusive to his wife during their relationship, but for a Japanese court (or any other that I can think of for that matter) he’s now given her a perfect narrative, just like his ex-wife will have zero credibility before any US court from here on in. What people do in extreme situations does get used against them.

    I was assuming that Savoie would have recourse to the Hague if Japan signs. He seems to have been operating on that assumption. Having done a bit more reading on it, however, it appears that after children have been settled somewhere for a year, “habitual residence” can be evoked, even in the case of a kidnapping. Since we are coming up on 2 years now, it turns out that it likely wouldn’t help in Savoie’s case – especially if his children had lived in Japan for a long period before 2009.

  9. As far as I understand, Hague won’t apply to any outstanding left-behind case, including Savoie’s, simply because it isn’t retroactive, not because the habitual residence clause will be triggered.

    As far as I could understand, Savoie’s recent legal action had nothing to do with positioning himself for a Hague claim. Rather, he seems to believe that he has a greater chance of using Japanese courts to pursue a financial claim. His aim appears to be to try to squeeze his ex-wife financially.

  10. Now comes a question.Would handing kids to Savoie be justice?
    Not only Savoie tried to abduct children by force on Japanese soil,he(and his new wife)is spreading all kind of negative informations regarding his ex-wfe using all kinds of media starting from twitter to CNN.And now trying to bankrupt the mother of the children through American court order and kicking his children into poverty.

  11. The point is that even under Hague, Japan keeps its authority to make that determination.

    Re Mulboyne’s last comment, the convention covers both removal AND retention in violation of custody orders. Even if the removal happened before the treaty applied, the retention is an ongoing offense and should be covered so long as there is some overlap with the validity of the treaty in the destination country. By its text, the convention applies to “any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights,” so parents of children taken out of Japan before Japan signed up would [depending on how you read that] not be able to use the convention to get their kids back, but there is nothing which says that the destination state had to be a member before the first breach occurred.

    Also, to correct a comment by Aceface above, Thailand *is* a party to the treaty and has been for several years. China is technically a party, but only with regard to Hong Kong and Macau. Sri Lanka is also a party. So Japan would be one of the first in Asia to join, but not the first, and hopefully not the last either.

  12. “Any decisions should have the interest of Japanese nationals first” X

    “Any decisions should have the interest of HUMANS first” O

  13. Kids in case of parent disagreement should be forcibly institutionalized and forbidden to see their family again.

    Divorce problem solved.

  14. This is what the US embassy in Bangkok says.

    “The Hague Convention on the Civil Aspects of International Child Abduction cannot be invoked if a child is taken from the United States to Thailand, or vice versa, by one parent against the wishes of the other parent or in violation of a U.S. custody order”

    The UK embassy says:

    “Thailand is not a member of the Hague Convention on International Child Abduction.”

    I understand HK and Macau being member for their European ties.But most of the marriage with Japanese are with citizens from PRC proper.

  15. The convention’s website says that Thailand has signed, but that not all counterparties have accepted its accession to the convention (the convention is only binding between two countries if they have both signed and accepted each other). The UK and US are apparently among them.



    Don’t ask me why this is, because I don’t know…

    Anyway, do you really want Japan to be following the international law precedents of China?

  16. Isn’t this an issue that should follow the domestic family structure trend instead of Pan-Atlantic precedent?

    What likely would happen next is dozens of Japanese women ends up in foreign jail while GoJ can do nothing the equivalent to those children got taken to China/Koreas and the Phillipines.(Well,maybe not the Phillipines since many divoirced Filipino women either choose to stay in Japan or want their kids to have Japanese citizenships.)Eventually many will see the convention “unfair”to the Japanese national interest.This could be something Kan should talk as a subject at Japan/China/Korea Summit though.

    Moonies had already started it’s own propaganda exploiting this issue.Now blaming Japan abducting their kids instead.


  17. “Anyway, do you really want Japan to be following the international law precedents of China?”

    Hey,ever heard of International Criminal Court and why the US is not member and Washington actually sits on the same table with China,Israel,Iraq,Libya and Yemen and Singapore?

    Japan signing the convention could put more than a dozen Japanese citizens in foreign jail,yet we have no legal framework to do the same to those who takes away the spouse of Japanese citizens to Asian nations that consists most of the international marriages that takes place in Japan.It may sounds like a good deal to the well being of Japanese citizens to some,but I think Japan should think twice before signing it.

  18. I completely agree with Aceface that Japan shouldn’t sign up to Hague just to keep the diplomatic heat off. Countries should only become signatories because they are committed to reciprocity. That commitment should only be undertaken with a full understanding of the domestic ramifications and I’m not convinced there has been adequate public discussion to date.

    I’n no sure that becoming a signatory means Japan suddenly sends it’s citizens off to foreign jails. Hague doesn’t call for that, it is only concerned with deciding the appropriate location for the children. Criminal charges are a separate matter which come under extradition treaties and are nothing to do with Hague.

    It would seem to be possible for Japan to sign up to Hague, and even go as far as agreeing to send children to another territory, without recognizing that a Japanese national committed an associated criminal act. If one of Japan’s extradition partners did go as far as to seek a suspect (I think, in practice, this means only the US), I can envisage a local court denying the request, regardless of whether Japan has signed.

  19. “If one of Japan’s extradition partners did go as far as to seek a suspect (I think, in practice, this means only the US), I can envisage a local court denying the request, regardless of whether Japan has signed.”

    Not exactly sure “local court” can budge “the request”from the most powerful and vocal country in the world if once the diet had sign the Hague.
    Unlike the U.S our government has been countlessly proved how incompetant they can be in protecting it’s own citizens from the act of foreign govenrment.which probably is why Savoie never threw away his American passport,something that was required in return of our citizenship.

    I’d say Hague convention is no more than a poisoned chalice .

  20. Japan and the US retain right to extradite or not to extradite their own nationals under the treaty, right? The poisoned chalice would be drunk by any cabinet that would dare to face the court of public opinion on something like the case of Noriko Savoie.

    For the US, if Operation Tomodachi = X amount of good PR, demanding the extradition of Noriko Savoie to stand trial for kidnapping in the US would = at least 3X bad PR. It would piss off feminists on the left, the weepy narrative consuming silent majority in the middle, the right, and the crazy right. And just imagine if the kids went on TV and said that they just want to stay in Japan with mommy?

    America might be an 800 pound gorilla, but it isn’t a stupid gorilla.

  21. America did ask Japan for the extradition of Etsuko Tanizaki. She abducted her children before the treaty with the US was signed but she had become a US citizen while living in the country. Japan elected to treat her as a Japanese national and denied the extradition request.

    I’d stress once again that Hague says nothing about extradition and does not cover those kinds of criminal complaints. The status of a party as a fugitive may come up in evidence in a Hague hearing but that’s it as far as Hague is concerned.

  22. A bit late to the party.

    I take it the author doesn’t have children with a Japanese national then.

    “it’s no big deal”, he says, as if it were something we should forget about.

    If you are a parent married to a Japanese national who is withholding your children from you,
    I can assure you, as the only thread of hope left in life, Japan signing the Hague convention is a very big deal indeed.

    Probably not though if you are some snooty lawyer in an ivory tower.

  23. Another, completely different perspective. I live outside Japan and have neither a Japanese partner or children. Japan not having signed limits/prevents me bringing our children to Japan. The children are restricted (by law) to travelling to Hague countries only.

    We have traveled to Japan on multiple occasions, but unfortunately have to leave our (teenage) children behind.

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