Family Law

Mikiko Otani, one of Japan's leading family lawyers, has today, 7 September, 2012, confirmed to the IAML annual conference in Singapore that Japan will not be signing the Hague child abduction Convention in the near future, at least a year as a minimum.

There had been real hopes that the Japanese parliament, the Diet, would be adopting it over the next couple of months, but Mikiko reported that the Parliament had closed, formally effective 8 September, as a general election has been called. There is no prospect now of it being adopted until the next Parliamentary year, if then. This closure of Parliament was due to party political reasons within Japan and thoroughly unrelated to child abduction issues.

The Japanese cabinet had announced as long ago as May 2011 that it was starting on the preparation of the legislation to ratify the Convention into Japanese law. A lot of work had been undertaken by Japanese Justice officials and Central Authority with child abduction lawyers and central authorities elsewhere in the world to get Japan ready for the introduction of the Hague convention. In February 2012, draft legislation was introduced into the Japanese Parliament giving the Western world real hope of implementation very soon. Alas these hopes are now dashed. It is very regrettable.

Mikiko explained that there was opposition in Japan including to The Hague Art 13b defence of "grave risk". There was a feeling amongst some in Japan that this did not go far enough and should extend to domestic violence against the child, against the abducting parent and fears of prosecution of the abducting parent on any return. The worry has been that unless these were included, or understood locally as being included within the definition of grave risk, the prospects of implementation were more limited. Others such as Mikiko had been working tirelessly to promote its introduction. This present delay in implementation of the legislation in Japan by the sudden closure of the Parliament will give more opportunity for those seeking to impose hurdles and obstacles in the way of the implementation of the Convention. Observers from abroad are anxious that if grave risk is extended or interpreted in this way, it is in effect creating a welfare test analysis instead of the expectation of an immediate return order.

It will be a matter now of examining the sentiments and commitment of the eventual new government and whether they will insist that Japan takes its place at the international family law table and commits to the child abduction international convention. Bob Arenstein, a leading US child abduction lawyer, in the same session at the conference highlighted the many difficult cases which now exist between Western countries and Japan. Since the Convention came into effect, not a single Japanese case on international parental abduction has been resolved through Japanese court ruling or enforcement. The US is taking a particularly strong line, including through motions in the U.S. Senate, on the failures of Japan to co-operate with international children laws. Japan is the only G7 country not to sign the Convention.

Family law like any other area of law reform is naturally subject to the vicissitudes of party politics and Parliamentary timetables. It is however such a great and regrettable pity that a hugely needed development in international children law has been a victim of the political process in Japan. It is much to be hoped that the political parties seeking election in Japan were all put forward a mandate of the best interests of children by an early adoption in Japan of the Hague child abduction convention.

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element.  

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.

David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.