Thursday, July 3, 2014
Japan and the Hague Child Abduction Convention: The I CARE Foundation's Child Travel Consent Form Builds A Bridge
The I CARE Foundation’s International Travel Child Consent Form: Building Bridges Of Cooperation Between Japan and the Hague Child Abduction Convention
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 firstname.lastname@example.org.
On behalf of the I CARE Foundation,