Statement on the Legislative Council’s Adoption of the Outline for the Establishment of Procedures for the Return of Children for the Implementation of the Hague Convention on the Civil Aspects of International Child Abduction
Today, the Legislative Council adopted its “Outline for the Establishment of Procedures for the Return of Children for the Implementation of the ‘Hague Convention on the Civil Aspects of International Child Abduction’ (“the Hague Convention”).” The Government reportedly plans to prepare related bills (the “Domestic Laws”) to implement the Hague Convention in line with this outline as well as with the “Summary of the Points at Issue Regarding the Modality of the Central Authority for the Implementation of the Hague Convention” released earlier by the Ministry of Foreign Affairs, and submit the bills to the ongoing 180th ordinary session of the Diet.
The Japan Federation of Bar Associations (“JFBA”) released its “Opinion on Recommended Measures to be taken on the Conclusion of the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”)” on February 18, 2011. Among the issues mentioned in this opinion, consideration to be given to situations in which domestic violence or child abuse is found, hearing the views of the child/children concerned, and establishing rules for the return of children are all incorporated into the outline and the summary to some extent.
However, some issues were not included in the outline or the summary, and even for the issues which were incorporated, there is a possibility that their objectives would not be sufficiently achieved depending on the specific rules and operation of the system to be established in the future.
Therefore, the JFBA reiterates to the Government and others involved in this matter the following issues based on its opinion mentioned above.
(1) The Domestic Laws should include provisions requiring: i) respect for the best interests of the child in operating the Convention and the Domestic Laws; ii) a review of the operation of the entirety of the Domestic Laws, including jurisdictional issues, within three years after the coming into force of the Domestic Laws; and iii) the clear stipulation that the procedures for the return of children provided by the Convention and the Domestic Laws shall not be applied retroactively to cases which occurred before the entry into force of the Convention
(2) The following preparations should be made before the implementation of the Convention and the enforcement of the Domestic Laws
i) Sufficient information should be provided for Japanese nationals living abroad, especially in the Contracting States of the Hague Convention, concerning the respective laws on child custody and divorce, and whether or not there are any punishments or disadvantages if a parent takes his/her child out of the country. Overseas Japanese Consulates should provide all support possible.
ii) In order to reduce the economic burden on concerned persons lacking in sufficient financial means, necessary measures should be taken, including the enhancement of the public support system. (In particular, translation fees, etc. should also be covered by the public support system.)
iii) Sufficient training concerning international human rights laws including the Convention on the Rights of the Child should be provided for all those who are involved in the procedures surrounding the return of children, such as staff members of the central authority, judges and attorneys.
iv) The Government should ensure that the Convention and the Domestic Laws are widely known among Japanese people worldwide. In particular, the Government should ensure that Japanese people correctly understand that the return procedures to be provided by the Convention and the Domestic Laws shall not be applied in cases which occurred before the coming into force of the Convention in Japan nor in cases involving disputes over parental child abduction within Japan.
In order to make above preparations, a reasonable period of time should be given before implementing the Convention.
(3) In operating the Convention and the Domestic Laws: i) the best interests of the child should be respected; ii) appropriate consideration should be given to situations where abuse of the child or domestic violence has been noted; and iii) necessary measures should be taken to support the peaceful enjoyment of visitation rights.
(4) If a parent who takes a child out of the Contracting country of their habitual residence without the consent of the other parent or the permission of a court and if such country has a legal system which can impose a criminal penalty on such parent, the Government should request, discuss or negotiate with the country to ensure that they do not prosecute the parent if he/she has voluntarily come back to the country in question and returned the child.
(5) In order to guarantee that the Convention is implemented in compliance with appropriate international human rights instruments, Japan should ratify the 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 concurrently with the conclusion of the Hague Convention and should accept the individual communication procedures set forth therein.
If Japan concludes the Hague Convention, the JFBA will prepare to provide training courses, etc. for its members so that they will be able to appropriately represent the persons concerned.
February 7, 2012
Japan Federation of Bar Associations