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This issue of parental child abduction has been addressed on an international level.

The 1980 ‘Hague Convention on the Civil Aspects of International Child Abduction’ is an agreement made between various countries which aims to ensure the return of an abducted child to the country where he or she normally lives, so that issues of residence (custody) and contact (access) can be decided upon by the Courts of that country. JAPAN is a signatory to the Hague Convention.

In what circumstances should Hague Convention proceedings be considered necessary?

Imagine the scenario – parents separate from one another and, if they are both from different countries, there may be a dispute as to which country their child resides in post-separation. If the child is removed by one parent from the country in which they have been living (i.e. their country of habitual residence), then the other parent can issue Hague Convention proceedings and ask the Court to make an Order that the child is returned to their county of habitual residence.

Will factors will the Court look at in Hague Convention proceedings?

In Hague Convention proceedings, the Court’s role is to determine which country has the power (jurisdiction) to decide where the child should live. This ultimately will be the country where the child had been habitually resident up until the removal/retention. If a return is ordered, this does not mean that the Court has found that it is best for the child to live in that particular country long-term.  The Court in the country of return can be asked by either parent to adjudicate fully on where the child should live permanently, taking into account the child’s best interests and welfare considerations.

What constitutes ‘child abduction’ under the Hague Convention?

For the removal of a child from one country to be “child abduction” under the Hague Convention, the following have to apply:

1. The child has to be habitually resident in the country from where they were taken.
2. The removal of unlawful retention of the child has to be in breach the “rights of custody” of someone else – i.e. the other parent.
3. The “rights of custody” have to be exercised at the time of the move.

The Hague Convention provides that the Court dealing with the application must order the return of a child who has been unlawfully removed or retained.

Can the Court refuse to return a child?

The Court does have the power not to order a return in the following cases:

• If more than a year has passed since the removal or retention of the child and the child is settled in their new environment.
• If the person with “rights of custody” agreed to the removal or retention either beforehand or afterwards.
• If there is a grave risk that the return of a child would “expose them to physical or psychological harm or otherwise place them in an intolerable situation”.
• 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 their views.”

These defences are interpreted very narrowly by the Courts and are normally only successfully used in very strong cases. If you think a defence applies to your particular circumstances, you should ensure that you obtain legal advice from a lawyer specialized in this area and practicing in the country in which the Hague proceedings have been issued.

Can I represent myself in Hague Convention proceedings?

As with all other areas of law, a person does have the right to act for themselves in respect of Hague Convention proceedings. However, the law in this area is particularly complex given the application of international caselaw and the narrow interpretation of the available defences. It is always advisable to seek legal advice if you are involved in a Hague Convention matter.

At KOICHIRO YOSHIDA LAW OFFICE, we have experience in dealing with international parental child abduction cases and matters invoking the Hague Convention. For a free, no obligation discussion on your rights in this area, please contact Koichiro Yoshida via email at k-yoshida@kylo.jp or on +81 (0)90 2964 6068.