One of the positive influences of globalization has been the possibility of multicultural relationships and marriages. Unfortunately, this also results in transnational problems related to divorce, child custody, and even increasing numbers of parental child abduction cases. Apart from being considered a private matter, dealing with family disputes on an international level can be particularly challenging due to different cultural, social, and religious outlooks on partnership and parental relationships. In the past years, this has been evident in Japan, which happened to be in the international spotlight after numerous civil and political institutions, including different EU bodies, addressed Japan's parental child abduction issue (Strauss, 2020).
Parental child abduction occurs when one parent takes or retains the child away from his/her habitual residence without the consent of the other parent. Such an act is unlawful if it deprives the other parent of custody rights that were being exercised at the time of removal (1980 Hague Convention, Article 3). The basis for dealing with parental cross-border child abduction is the 1980 Hague Convention on the Civil Aspects of International Child Abduction. This international treaty falls under the subject of international private law, which governs the settlement of legal disputes with an international element by determining which court has jurisdiction and which law is applicable in a given situation (Carney, 2019, p. 12-13).
While some criticize the Convention for not providing the substantive solutions for determining the merits of custody questions (Mahmood & Chishti, 2012), it is nonetheless an invaluable legal instrument contributing to legal certainty and judicial cooperation between countries. Despite governing only procedural questions, the effective implementation of its provisions is crucial for the protection of rights of the left-behind parents and their future relationship with the abducted child. The Convention hence aims to ensure a swift return mechanism for a child abducted by a parent living in another country and mandates that any dispute over custody shall be litigated at the place of the child's habitual residence prior to its removal (1980 Hague Convention, Preamble).
The authorities in the child's habitual environment are deemed to be best qualified to decide on merits in all matters related to children. This norm conveys the principle of the child's best interests in procedural matters, as the domestic court could most effectively investigate the factual issues and the context of a family dispute (Corneloup & others, 2017, p. 14). Therefore, the child must first be returned to its habitual residence before the substantive questions on custody can be tackled. The decision to return the child is based on inappropriate removal and does not pre-determine the decision on custody, but merely establishes fair conditions for both parties involved in a parental dispute (Reynolds, 2006, p. 468). Additionally, such a mechanism deters parents from unilaterally removing children from their habitual residence. This way, the abductor cannot benefit from their actions and choose a forum which they regard as more favorable to their own claims (Perez-Vera, 1982, p. 17-18).
Even after entering into force in 2014, the application of the 1980 Child Abduction Convention in Japan has raised several concerns. The successful implementation of international instruments depends on domestic institutions' capacity for the realization of international obligations, as the international legal system has no effective centralized law enforcement mechanism (Cogan, 2006, p. 199). As a result, the implementation of international legal instruments is always embedded in the national legal and cultural context.
In contrast to the 1980 Convention, which envisions a joint custody approach after a marriage breakdown, Japanese family law is based on the sole custody model, which reflects Japan's unique family registration system called koseki (Takeshi, 2017, p.1). The koseki system was introduced as the basic method of registering the population as far back as the eighth century and later re-established in the late nineteenth century. It presents the state as a national family, headed by the Emperor who is symbolized as the father of the nation (Takeshi, 2017, p.44). The basic unit of koseki is not the individual, but the family; consequently, no Japanese national can simultaneously belong to more than one family within this registration system, meaning that after the divorce, the child can belong to either one or the other of the parents' families (Takeshi, 2017, p.45). As there is no legal framework for shared parenting in Japanese domestic law, the divorce results in a 'clean break', where a child and their custodial parent have no contact with the non-resident parent (Carney, 2019, p. 83). Hence, if the 1980 Hague Convention is not efficiently enforced, left-behind parents whose children have been relocated to Japan are a priori denied custody or access that could otherwise be granted under domestic law in the child's habitual residence, where the custody dispute should be heard.
The traditional context underpinning Japanese family law seems to be at odds with the dominant modern interpretation of the best interest of a child enshrined in contemporary international law. The Convention of the Rights of the Child states that the best interests of the child must be a primary consideration when any matters concerning children are being decided (1989 Convention, Article 3). This concept is not defined in the Convention and its content must be determined on a case-by-case basis, meaning that interpretation is flexible and also takes cultural factors into account (General Comment no. 14, 2013, p. 9). In general, the concept of the child's best interests is aimed at ensuring both the full and effective enjoyment of all the rights recognized in the Convention and the holistic development of the child (General comment No. 14, 2013, p. 3). Among others, the Convention sets out the right of a child to maintain personal relations and direct contact with both parents on a regular basis (1989 Convention, Article 9).
Harmonized legal standards are bridging the gaps between different legal systems and traditions, consequently fostering unity and cooperation among countries. To reach a consensus, flexibility and consideration of different national values is needed. However, when the rights of individuals are at risk, divergent interpretations of legal standards ought not be welcome, unless such interpretations call for a more rights-protective approach. The issue of child abduction in Japan portrays how international law challenges traditional views rooted in national identity. As the law is an expression of social values, the shift in Japanese legal policy will unlikely happen solely due to external pressure, but will also require a different perception of family structures within Japanese society. Even if the outcome of this change seems distant and unpredictable, it is an important advance towards a fairer system that respects parental and children's rights.
Bibliography
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