The Hague Abduction Convention: Nice in Theory, Difficult in Implementation

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (further: the Convention) is a multilateral treaty, which seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return. Currently there are 98 states that are contracting parties to this Convention.

The two principal articulated objectives of the Convention are (art. 1 Convention):

• to secure the prompt return of children wrongfully removed to, or retained in, any Contracting State; and
• to ensure that the rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

To implement these objectives, the Convention creates a system of close co-operation among the judicial and administrative authorities of the Contracting States and requests Contracting States to use the most expeditious procedures available under their own laws for Convention proceedings.

The terms of the Convention reflect the basic assumption that the wrongful removal or retention of a child is generally prejudicial to the child’s welfare and that, in the majority of cases, it will be in the best interests of the child to return to the State of habitual residence where any issues regarding custody of or access to the child, including the right of a parent to relocate with the child to another State, should be resolved (art. 19 Convention). The prompt return of the child also answers the desire to re-establish a situation unilaterally altered by the taking parent (i.e., to restore the status quo ante).

Thus, as mentioned in the Explanatory Report, the Convention reflects on the whole a compromise between two concepts. In fact, one can see in the Convention the conflict between the desire to protect factual situations altered by the wrongful removal or retention of a child, and that of guaranteeing, in particular, respect for the legal relationships which may underlie such situations. The Convention has struck a rather delicate balance in this regard.

How difficult and precarious this balance is in practice, is clearly shown by a recent decision of the Japanese Supreme Court. Japan joined the Convention in April 2014. Before Japan joined the treaty, it had been accused of being a haven for international child abductions. Japan had long refused to join the Convention. According to Hamano this was because Japanese officials, such as the police, are less likely to intervene in private matters, on the principle of nonintervention in civil affairs (minji fukainyu no gensoku).  Thus, when Japan finally joined the Convention, critical observers feared that courts would find bolt holes to undermine it.

On December 21, 2017, the Japanese Supreme Court rendered a decision on the Convention.  The facts of the case are that in July 2014, the mother, a Japanese citizen, took the couple's four children on a vacation to Japan. The couple - who was living in the United States - had agreed that a six-week trip to visit their grandparents in Japan would be a good break for the children and their mother.

However, the mother did not return with the children to the Unites States as agreed. The Convention signed by Japan and the United States, allowed the father access to the Japanese court system. The Japanese court ruled in January 2015 that the children should return to the United States. Meanwhile, that same year, the man filed for a divorce in the United States Courts system. An American judge there granted him temporary custody of the children as part of the process. In 2016, the Osaka High Court issued an order that the children should be returned.

The basic concept underlying the convention is that children in these situations should be returned — promptly — by courts where they have been taken to their jurisdiction of habitual residence, and decisions about their long-term best interests should be made by courts there. The convention provides a few exceptions where returns can be refused, specifically: (i) if 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 (art 13 Convention)” and (ii) “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 (art. 13 b Convention).”

Having obtained a return order, the father then set about trying to enforce it. He did not succeed.  Whilst refusing to cooperate with the return order, the mother filed a motion to have the whole matter reconsidered based on changed circumstances. This is one of the escape hatches built into Japan’s implementing act — the ability of a losing party to seek a new trial (after an appeal), even though the whole point of the process is to get children back home as quickly as possible.

Now the Osaka High Court did rule that it was no longer appropriate to return the child because the father lacked the wherewithal to support them. This is the other bolt-hole built into Japan’s implementing act: the ability of judges to consider the child-rearing capabilities of both parents in determining whether the exception in (ii) above might apply. In other words, the court did a custody evaluation about what would be in the best interests of the children, which is one of the basic things that is discouraged in the Convention. Art. 19 of the Convention explicitly states that a decision under the Convention shall not be taken to be a determination on the merits of any custody. The basic premise, again, is that custody determinations should be made by courts where the children have been habitually resident. The five judges on the Japanese Supreme Court however upheld the judgment of the Osaka High Court.

This procedure clearly shows the danger of the application of art. 13 b of the Convention; contrary to the intentions of this article a court may apply the exception so as to turn the proceedings on the return of the child into an adversarial contest on the merits of the custody question.