The use of a model
international travel child consent form such as the I
CARE Foundation’s model Hague-centric travel agreement may bring about
sustainable cooperation between Japan and Hague Convention Contracting States
as all Convention Contracting States attempt to navigate Japan’s participation
at the table of nations created to protect children from abduction
On
April 1st, 2014 Japan formally joined the table of nation’s
participating in the 1980 Hague
Child Abduction Convention. For many, Japan’s ratification of the
Convention, which had been developed “to protect children internationally from
the harmful effects of their wrongful removal or retention and to establish
procedures to ensure their prompt return to the State of their habitual
residence” (Preamble of the Convention), was a landmark breakthrough,
particularly since it was previously extraordinarily rare a parentally abducted
child taken to Japan was ever returned to the child’s country of habitual
residence. Despite Japan’s ratification, there has been significant
concern as to how Japan’s two courts dealing with Hague abduction cases (concentration
of jurisdiction) would actually apply the Convention, in particular the Article
13(1)(b) exception.
(Writers Note: At the
time of this article there exist several pending cases being determined by
Japan’s two Hague tribunal courts).
Inevitably, due to the particular importance of the
role of judges under Article 13(1)(b), many stakeholders around the world, must
carefully consider Japan’s capability and willingness to uphold the rules of
law pertaining to a child’s welfare when considering whether to allow a child
to travel to Japan with one of the child’s parents (presumably that parent is a
Japanese national, typically the mother). Clearly there is concern over Japan’s
past history to disregard a foreign issued court order stemming from the courts
of the child’s original jurisdiction (habitual residence).
Preventing international child abduction is
paramount to all issues when a court must decide whether to allow a child to
travel abroad. However there is another part to the story: the challenges
a Japanese national living abroad faces when seeking court permission to travel
with their child to Japan when the other parent opposes such travel due to
concern that the other parent will not return with the child and the Japanese
court will uphold the child’s abduction, considering the Article 13(1)(b) exception
to be fulfilled and applicable. Undeniably, foreign courts must act
cautiously and prudently when considering whether or not to issue permission
for a Japanese national to travel abroad with their dual-citizenship child. The
arguments to restrict travel are indeed compelling.
But in looking at the long arch of the Hague
Conference and its 38 conventions, including the 1980 Child Abduction
Convention, what really exists are a series of ‘bridges’. Bridges that connect
countries and its citizens. Bridges created to promote cooperation. And
perhaps most of all, bridges created to celebrate the ideals of global
citizenship.
Allowing a child to know and embrace their full
identity – meaning the culture, heritage, and family members living abroad - is
paramount to good parenting. So too is protecting against abduction.
After all, the best response to abduction is not to let it occur at the first
place.
One critical question for many stakeholders,
including the judiciary, is ‘How do we cross the Hague Bridge when dealing with
Japan?’
Well, to begin, in nearly all matters before
foreign courts (outside of inbound Hague abduction cases and permanent mobility
cases), the issue will revolve around permission to travel abroad for a family
vacation.
One of the most effective tools that all courts
located in countries that are signatories to the 1980 Hague Child Abduction
Convention can use to bridge the concerns between Japan and Hague Convention
Contracting States is the I
CARE Foundation’s International Child Consent Form that has been utilized
in courtrooms around the world and has been called a “model to follow” by
senior officers of the Hague Permanent Bureau. Critically,
the I CARE Foundation’s Hague-centric International Travel Child Consent Form
is steep in language that was created to prevent against misuse of Articles 12
and 13 of the convention while emphasizing the importance of a child’s quick
return to their country of original jurisdiction should abduction occur.
Like all bridges, in order to allow passengers to
cross, a strong foundation must be created on both shores. This is no different
when addressing Japan’s participation to the 1980 Hague Child Abduction
Convention. In all fairness to Japan, it is clear that the country is
taking seriously its participation to the child abduction convention as
demonstrated by the very comprehensive efforts to prepare for the entry into
force of the Convention for Japan and maybe in particular by concentrating the
jurisdiction for Hague cases on two courts only.
It is the opinion of the I CARE Foundation that
perhaps the most important step Japan can take as a nation to further integrate
itself into the cultural climate of law created by the 1980 Hague Child
Abduction Convention is for members of its legal community to begin
implementing and upholding the I CARE Foundation’s Hague-centric International
Travel Child Consent Form in Japanese courtrooms. By doing so, Japan creates
internal case law and precedent for outbound child travel cases of Japanese
children. Conversely, by establishing the I CARE Foundation’s travel form in
its courtrooms, Japan’s courts sends a clear message that they will uphold the
travel consent form issued in a foreign court.
Critical to the creation of this much-needed bridge
is the immediate cooperation of Japan’s family law attorneys and judiciary to
use the I CARE Foundation child travel consent form in Japan’s courtrooms.
Against this background, the I CARE Foundation was
particularly pleased that on July 3rd, 2014 at the Sapporo Bar
Association’s Hague Symposium that was expected to draw over 120 of Japan’s top
family law attorneys, as well as family law practitioners from Australia,
France, Hong Kong, India, Indonesia, Malaysia, Pakistan, China, and Singapore,
the Foundation’s model travel consent form was presented as a good model
example of a Hague-centric travel consent form.
Previously, Hague Permanent Bureau senior officers stated to members of the European legal community (at the LEPCA
Conference held at the Peace Palace in The Hague) and the North American legal
community (during the IAML Conference in New York), that the I CARE
Foundation’s International Travel Child Consent Form was a model travel consent
form that legal practitioners should consider using when dealing with
international travel child matters.
According to an ongoing I CARE Foundation study
that polls legal professionals deeply familiar with international parental
child abduction, over 70% of all cases of international parental child
abduction under the 1980 Hague Child Abduction Convention are due to a child
being wrongfully detained abroad. The I CARE Foundation’s Hague-centric travel
document was established to prevent child abduction in the form of a child
being wrongfully detained abroad.
As the international legal community attempts to
navigate Japan’s participation to the 1980 Hague Child Abduction Convention,
one thing is clear: the I CARE Foundation’s travel form can serve as a bridge
between Japan and other Hague countries so long as Japan’s attorneys implement
the form in its courtrooms and Japan’s judiciary upholds its use.
And is it conceivable that the I
CARE Foundation travel form can become a bridge to protect children from
abduction connected to travel to or from non-Hague countries? Yes.
For attorneys seeking a copy of the I CARE
Foundation’s legal analysis of our model international travel child consent
form, please contact us at legal@theicarefoundation.org.
On behalf of the I CARE Foundation,
