On July 28, the House Foreign Affairs Subcommittee on Africa, Global Health, and Human Rights held a hearing, “Improving Implementation of the Hague Convention on the Civil Aspects of International Child Abduction.” The Foreign Affairs Committee held a similar hearing on the subject on May 24 (see The Source, 5/27/11).
According to the State Department’s analysis, the Hague Convention on Child Abduction is the “primary civil law mechanism for parents seeking the return of their children from other treaty partner countries.” The convention requires that “a child who was living in one convention country, and who has been removed to or retained in another convention country in violation of the left-behind parent’s custodial rights, shall be promptly returned,” at which point the custody dispute can be resolved.
Susan Jacobs, special advisor for Children’s Issues at the State Department, noted that, “Proceedings under the convention do not decide custody, but provide a framework for determining in which country the custody decision should be made.” She also explained the challenges in implementing its provisions: “The convention, although a successful operating agreement, is not a perfect instrument. Fostering compliance with the treaty is an ongoing challenge. Some countries devote inadequate resources to their central authorities, and this makes the timely processing of cases difficult. The courts in some countries misunderstand the legal framework of the convention. Judges may improperly treat a Hague hearing as a custody decision, while the convention mandates [that] the custody be determined by the proper jurisdiction. Similarly, other countries may show bias toward their own nationals in their legal decisions, especially when the abducted children are dual nationals. Lengthy judicial and appeals processes also contradict the principles of the convention, which calls for expeditious proceedings. In some countries, simply locating missing children remains a serious obstacle to resolving cases because a convention proceeding cannot be requested until the children are located. Even when the outcome is favorable and results in a Hague return order, enforcement is not always automatic, and the child’s return can be delayed by multiple appeals or undertakings that impose unrealistic conditions on the return.”
Ms. Jacobs also detailed the efforts underway to assist countries seeking to comply with the convention. She said, “[T]he U.S. Central Authority, in coordination with our treaty partners and The Hague Conference on Private International Law, offers legal and infrastructure technical assistance and guidance. We sponsor judicial seminars on the convention in partner countries across the globe…I am pleased that the efforts to increase our engagement with other countries are successful, especially in convention partner countries that have been cited repeatedly in our compliance reports to Congress…In cases where countries are not members of the convention, CI [Office of Children’s Issues] officers work with parents to understand what their options are in the foreign legal system or, if they prefer, with the U.S. criminal justice system. These cases are protracted and challenging. However, we have many examples of successful cases that highlight how the Department of State can play an invaluable role in helping left-behind parents understand foreign laws and their options. CI can coordinate assistance across many U.S. and foreign government and law enforcement agencies and ensure case developments are communicated efficiently and clearly. CI can also connect parents with social service resources and take all possible actions to monitor and protect the welfare of the abducted children.”
Speaking specifically about child abduction in Japan, Assistant Secretary for East Asian and Pacific Affairs Kurt Campbell said, “While the U.S.-Japan relationship is overwhelmingly positive and an essential feature of our strategic engagement in the Asia-Pacific region, the perennial issue of international parental child abduction in Japan remains a point of concern for the Department of State and the United States government. Greater access to Japan – enabled by more frequent and direct air links to Tokyo – has increased the number of parental abduction cases involving Japan, and with a direct impact on U.S. nationals as well as Japanese citizens. As recently as 2005, the department counted only 11 reported abduction cases involving Japan. Today the Department tracks 123 active abduction cases involving 173 children with Japan alone.”
Mr. Campbell continued, “Japan is the only G-7 nation that has not implemented the convention. Currently the left-behind parents of children abducted to or from Japan have little hope of having their children returned and encounter great difficulties in obtaining access to their children and exercising their parental rights and responsibilities. We are pleased, however, that our efforts to encourage Japan to join the convention appear to be bearing fruit. On May 20 of this year, Prime Minister Naoto Kan’s cabinet publicly stated the government of Japan’s intention to ratify the convention. Soon thereafter, Prime Minister Kan himself relayed this message to President Obama when the two heads of state met at the G-8 Summit held in Deauville, France. Japanese officials have indicated that after ratification Japan’s implementing legislation will include reservations to the convention permitting a Japanese court to reject a return application. Among the reasons under which a court could reject a return petition are reportedly: 1) the taking parent has been abused (or is likely to be further abused) by the left-behind parent if she/he returns with the child; 2) the taking parent faces criminal prosecution in the other country; or 3) the taking parent cannot meet the financial cost of living in the other country. These exceptions are based primarily on Article 13(b) of the convention. They appear to be responsive to objections raised by Japanese opponents of the convention, particularly that the convention does not protect Japanese mothers. Our view is that the convention and procedures it calls for adequately protect the legitimate rights and needs of Japanese mothers as well as children and other parents. Japanese officials have assured us that Japan will implement the convention properly and does not seek to circumvent the basic premise of the convention that custody of children should be determined in the court of the child’s habitual residence. We look to Japan to take the necessary steps to ensure its full compliance and commitment to the convention.”
