Statement of Opinion on Recommended Measures to be taken on the Conclusion of the Convention on the Civil Aspects of International Child Abduction (the Hague Convention)
February 18, 2011
Japan Federation of Bar Associations
About the Opinion
The Japan Federation of Bar Associations (JFBA) prepared the "Statement of Opinion on Recommended Measures to be taken on the Conclusion of the Convention on the Civil Aspects of International Child Abduction (the Hague Convention)," which is currently under consideration by the Japanese government. This Statement of Opinion was submitted to the Cabinet Secretariat, the Ministry of Foreign Affairs, and the Ministry of Justice, and sent to the Supreme Court on February 21 and 22, 2011.
Outline of the Opinion
There has been a wide range of discussion and debate on the Convention on the Civil Aspects of International Child Abduction (hereinafter, the "Hague Convention"), which is currently under consideration by the Japanese government. The following measures should be adequately taken when Japan concluding the said Convention.
- Domestic law implementing the Hague Convention (hereinafter, "Domestic Law") that provides necessary matters to ensure appropriate implementation of the Hague Convention in compliance with the "best interests of the child" as stipulated in the Convention on the Rights of the Child should be enacted. In regard to this, the Domestic Law must provide the following:
- Return order or enforcement thereof can be refused in situations including where domestic violence or child abuse is found, or where the taking parent is likely to be subject to criminal prosecution upon return to the country of habitual residence together with the child.
- Views of the child is adequately heard and respected in the proceedings for return.
- The Domestic Law must provide matters including relating to the central authority under the Hague Convention, adjudication by judicial body on the return of the child, procedural rules as well as evidence rules, rules on enforcement of and appeal against the return order.
- The Domestic Law must provide clearly that the Hague Convention does not retrospectively apply nor does it apply to the cases of removal or retention of the child or disputes on access occurring within Japan and that should be made known.
- Approximately three years must be given before the Hague Convention and the Domestic Law take effect, during which period preparation for and notification to the public of the implementation of the Hague Convention.
- When concluding the Hague Convention, Japan should also ratify the First Optional Protocol to the International Covenant on Civil and Political Rights and the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women to accept individual complaint procedures under such Conventions.
- Information should be provided (both prior to and after entry into force of the Hague Convention) for Japanese nationals living abroad, especially in the Contracting States of the Hague Convention, on the following areas for each state: child custody and divorce laws, whether or not removal of a child by a parent constitutes a crime, legal aid systems, lawyers with expert knowledge on child custody and divorce, etc. Also, it should be considered to provide support at the Japanese Consulates.
- Japan should consider offering training on international human rights law, including the Convention on the Rights of the Child, for lawyers, judges, staff of the central authority and all other persons involved in the implementation of the Hague Convention.
- Japan should make requests to and engage in dialogue and discussion with the Contracting States of the Hague Convention that have legal systems for the criminal prosecution of a parent who takes a child out of the country without the consent of the other parent or the permission of the court so that taking parents are not subject to prosecution in case the parent voluntarily returns the child and goes back to the state of habitual residence with the child.