The Hague Convention on the Civil Aspects of International Child Abduction, (”the Convention”) is a multilateral treaty developed by the Hague Conference on Private International Law (HCCH) that provides an expeditious method to return a child internationally abducted by a parent from one member country to another.
The Convention was concluded on October 25, 1980 and entered into force between the signatories on December 1, 1983. The Convention was drafted to ensure the prompt return of children who have been abducted from their country of ”habitual residence” or wrongfully retained in a contracting state not their country of habitual residence.
[NOTE: The Convention does not define the term ”habitual residence,” but it is not intended to be a technical term. Instead, courts are required to broadly read the term in the context of the Convention’s purpose to discourage unilateral removal of a child from that place in which the child lived when removed or retained, which should generally be understood as the child’s ”ordinary residence.” The child’s ”habitual residence” is not determined after the incident alleged to constitute a wrongful removal or retention. A parent cannot unilaterally create a new habitual residence by wrongfully removing or sequestering a child.
As the determination of ”habitual residence” is primarily a ”fact based” determination and not one which is encumbered by legal technicalities, the court must look at those facts, the shared intentions of the parties, the history of the children’s location and the settled nature of the family prior to the facts giving rise to the request for return.]
As of October 2014, 93 states are party to the Convention. On 1 April 2014, the Convention became effective for Japan.
The Convention was designed to protect children internationally from the harmful effects of their wrongful removal or retention by their parents. Please note that the Convention applies only to children under the age of 16.
The two main purposes of the Convention are to ensure the prompt return of children to the state of their habitual residence when they have been abducted, and to ensure that rights of custody and of access.
The Convention provides that the removal or retention of a child is ”wrongful” whenever:
- It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention [ARTICLE 3]; and
- At the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. These rights of custody may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the country of habitual residence.
Procedural nature of the Hague Convention
It should be clearly noted that the Convention's procedures are not designed to settle the custody dispute, but rather to return the child to his/her home state where the custody dispute is to be resolved.
In other words, the Convention’s focus is to preserve the status quo and to deter parents from crossing international boundaries to secure a more favourable forum for the adjudication of custody rights.
The Convention mandates the return of a child that has been abducted if at the date of the commencement of the proceedings for the child’s return a period of less than one year has elapsed from the date of the wrongful removal or retention. It also mandates the return of a child even where the proceedings have been commenced after the expiration of the period of one year unless one of the narrow exceptions to mandatory return applies.
Furthermore, under the Convention a parent seeking the return of a child must demonstrate by a preponderance of the evidence that he or she had and was exercising custody rights over the child under the country of origin's laws and that the country of origin was the child’s habitual residence prior to the abduction (including wrongful removal or retention).
A parent cannot claim that the removal or retention of a child is wrongful under the Convention, unless the child to whom the petition relates is a ”habitually resident” in a state signatory to the Convention and has been removed to, or retained in, a different state. Determination of a child's habitual residence immediately before the alleged wrongful removal or retention is, therefore, a threshold question in deciding a case under the Convention.
It should also be noted that there is no format for determining habitual residence and determination usually varies with the circumstances/factors of each case. The Convention however makes it quite clear that a court has no authority to order return a child unless the petitioner-parent has rights of custody.
To request the return of a child being abducted, the parent must prove that he or she was exercising custody rights prior to the abduction. However, once it is determined that a party has valid custody rights under the country of origin’s laws, very little is required to support of the allegation that custody rights have actually been, or would have been, exercised. If a person has valid custody rights to a child under the law of the country of the child’s habitual residence, that person cannot fail to exercise those custody rights under the Hague Convention.
The Convention also provides recourse in the event a child is removed from an habitual residence in breach of a non-custodial parent’s visitation rights (access rights), but it should be noted that those remedies do not include an order of return to the place of habitual residence.
To vindicate the breach of access rights, the Hague Convention authorizes signatory nations to use one or more remedies (short of return) to promote the peaceful enjoyment of access rights, and to take steps to remove, as far as possible, all obstacles to the exercise of such rights. One such remedy is to order the custodial parent who has removed the child from the habitual residence to permit, and to pay for, periodic visitation by the non-custodial parent with access rights.
Japan and the Hague Convention
Before the Convention
The main impediment to Japan becoming a party to the convention was that it would require a change in attitude of the legal system towards child custody rights. Japanese family law considers issues of divorce custody, child support or alimony as predominantly private matters. Consequently, Japan has no enforcement mechanism to enforce foreign custody rulings or recommendations made by its own domestic courts. Furthermore, Japan does not recognise joint parental authority or shared "residence" after divorce.
In accordance with the Convention, a person whose rights of custody with respect to a child are breached due to removal to or retention in Japan may file a petition against the person who takes care of the child with a Family Court to seek an order to return the child to the state of habitual residence. Japanese Family Courts will then require the advocating Attorney to submit a power of Attorney with the original motion, as well as a clearly written statement regarding the cause of action and the supporting evidence.
Determining the child’s habitual residence is a threshold issue in any Hague Abduction Convention case, and if the court determines that the country from which the child was removed was not his or her place of habitual residence, the Convention will not apply and the petition should be dismissed.
Effects of the Convention
The Hague Convention now makes it possible for Japan to make use of the international cooperation mechanism to undertake procedures for the return of the child from the foreign state and to secure opportunity for parent-child access.
That also makes the rules for the return of the removed child much clearer. In other words, this now brings about an international standard, namely the Convention, to follow in order to solve problems and help the Japanese individuals living abroad to overcome constraints that they currently face, as the international rule is now applicable. It is now expected that, in a case involving the removal of a child from Japan to another contracting state, the relevant party can undergo a procedure for the return of the child while receiving support from the Central Authority, which would provide support for the return of the child under the Convention. It is also expected that the travel restriction on Japanese people in a foreign state with his or her child based on the status of Japan's non-contracting state of the Hague Convention can be alleviated