Changes must go beyond Hague abduction treaty

The Japan Times: Tuesday, Nov. 17, 2009

THE ZEIT GIST

Signing convention won't alter outcomes for many left-behind parents

By COLIN P. A. JONES
First in a two-part series

Christopher Savoie's recent arrest for "kidnapping" his own children in Fukuoka after they had been brought to Japan by his ex-wife generated not only much-needed media attention on Japan's abduction problem, but some unhelpful static as well. For example, some non-Japanese have claimed that Mr. Savoie's arrest reflects some sort of racism on the part of the Japanese police, though Japanese fathers have been arrested for doing basically the same thing. From the Japanese side there have been allegations that he "tricked" his former wife to the U.S., as well as nonsense about him being a bigamist because he remarried without registering his divorce in Japan.

Commentators on both sides have tended to converge, however, on one notion — that the Savoie case is somehow related to Japan not being a party to the Hague Convention on international child abduction. This notion is probably mistaken, as I will try to explain.

The treaty's formal title is the Hague Convention on the Civil Aspects of International Child Abduction. As this suggests, the convention is about the use of expedited civil rather than criminal proceedings to return children who have been abducted across borders. Thus, even if Japan had been a party to the convention, it would not have required Ms. Savoie to be arrested for bringing them here in violation of a U.S. court order. Many signatory nations also have domestic laws criminalizing parental child abduction, but this is not part of the convention.

Although Mr. Savoie's arrest shows that Japan's penal code is already up to the task, under the Hague the starting point in Japan for a father whose children are wrongfully brought to Japan will probably not be much different from what it is now — civil court. Although the convention should require Japanese authorities to help find the children, he will probably still have to go to a family or other civil court once they are located. Under the convention, Japanese courts would probably have to hear his case on an expedited basis, recognize his foreign custody (or visitation) order, and refrain from conducting a new determination of the best interests of the child. This last point is key, as currently Japanese judges tend to determine that children brought from foreign countries have adjusted to their new environments almost immediately, and that a change would not be in their best interests. The convention would require judges to limit their inquiry to whether the child was brought to or kept in Japan "wrongfully." If the removal/retention is wrongful, the child is supposed to be sent back.

This is where the rubber meets the road, however, and what I think is the real problem at the core of the Savoie case: Japanese courts have almost no coercive powers when a case involves children. This is a problem that foreign observers may have trouble understanding, particularly if they are in the U.S., Canada or other countries where police or judicial marshals participate in the enforcement of civil court orders, and judges have broad powers to punish, even imprison recalcitrant parents.

Policy hurts Japanese nationals too

This is not the case in Japanese courts, particularly family courts. The first thing that may happen to a parent who violates a court order in a custody or visitation dispute may be nothing more than someone from the court calling up to see if they have a good reason, and recommending compliance if they do not. Further intransigence may result in a non-penal fine, but this may have a limited impact on a party having no money, or if the fine just rebounds on the children (I know a Japanese father who had a fine imposed on his ex-wife for interfering with his visitation; she paid and, despite having adequate means, gave the children nearly-expired, cut-price food for dinner, telling them it was because their father had impoverished them).

The Japanese statute covering the enforcement of civil judgments does not contain any provisions regarding how to deal with children. Judges are left analogizing younger children to movable property, for which there is a statutory provision allowing for the direct enforcement of the judgment (i.e., physically taking possession) by a bailiff. There is a somewhat surreal academic debate regarding how young a child must be in order for a judge to treat them as a piece of property, but it is generally understood that children older than a certain age (seven or eight is one range given) are deemed capable of forming their own intent and cannot be taken by a bailiff against their will. Even if a judge does order the handover of a child, how (and if) to proceed with the enforcement is left to the bailiff (who, although an officer of the court, lacks police powers).

A recent article on the subject of enforcing child handover orders authored by a judge and published in the Japanese Supreme Court's family court journal illustrates the problem in Japan. It contains summaries of a number of enforcement situations, including one that goes roughly like this: Father abducts his four-year-old child from mother. Court orders father to return child to Mother. Bailiff goes to the father's residence to enforce the order directly (the child being young enough for the movable property analogy to work). Mother has previously warned the court that father is a violent sort, so the police are requested to accompany the bailiff. Father clutches child to his chest, saying "Over my dead body." The bailiff asks the child, "Do you want to come with me?" Child says "No." With this, the enforcement effort ends in failure.

This case illustrates what has to me always been a disturbing aspect of how cases involving children often seem to get resolved in Japan — by an adult in a position of authority letting even a very young child directly or indirectly make the final decision. Perhaps judges and other court personnel take comfort in having "respected the wishes of the child," but it sometimes comes across as a blatant abdication of responsibility. Respecting the wishes of a child is probably also often a convenient excuse for ratifying the status quo, since the courts often can do little to change it. If all it takes to frustrate a court order in a domestic case is to get a four-year-old child to say "no," then the same technique may prove effective in Hague cases also. The convention contains an exception stating that children old enough to express a contrary preference do not have to be returned.

Japan's habeas corpus statute provides another remedy, and although it is clearly drafted with unlawful police detentions in mind, it is now used mostly in child custody cases against parents who are "detaining" their own children. It is probably also the only remedy available to civil courts in such cases where there is a possibility of criminal sanctions for noncompliance. The Supreme Court, however, has indicated that absent exceptional circumstances, habeas corpus should not be used when the child is being detained by a parent (i.e. most cases).

In light of the above, I think that at the heart of the Savoie case is not "culture," not the Hague Convention and not racial discrimination, but an issue which affects Japanese and foreign parents alike — the dismal prospects for protecting your relationship with your children through litigation even if you win. Without deeper changes in the legal system, the Hague Convention may not do anything to change this state of affairs, since it leaves the specific remedies for abduction to the domestic laws of signatory states. Even if Japan does sign the Hague, it could end up like Germany, which, although a party to the treaty, was named in the U.S. State Department's 2008 report on the convention as having compliance issues due to "judicial performance" — more specifically the lack of enforcement mechanisms.

But remedies — getting the child back — are probably the only thing that left-behind parents care about. Most parents who love their children and take time to reflect on the matter probably do not want the abducting parent to be convicted or punished for a crime. Indeed, the issuance of an arrest warrant in the country from which the child is abducted can be counterproductive in the long run if it prevents the abducting parent traveling with the children years later, after everyone has had a chance to calm down.

For most left-behind parents, the real significance of criminalizing parental child abduction, in addition to whatever deterrent effect it might have, is probably not the ability to punish the abducting parent, but to have the child summarily returned by the police as part of the arrest process (and without the child being forced to make a decision). Most parents are unlikely to care if the case is not pursued after their children are returned, as effectively happened in the Savoie case.

However, it is the seemingly arbitrary availability of this remedy in Japan where claims of bias may be closer to the mark. But it is more likely gender bias rather than discrimination against foreigners. Quite simply put, when it comes to children, the Japanese legal system seems to cut mothers a lot more slack than it does fathers.

Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Send comments on this issue to community@japantimes.co.jp

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