And the true color is the color of money.

In its paper, the Japan Federation of Bar Associations lists a number of “red herrings”  regarding Japan’s ratification of the Hague Convention.  The biggest red herring is that Japan first must stipulate in its domestic law that children should not be returned to their habitual country of residence if they are found to have been abused or subject to violence.

This is a red herring because this point is already adequately addressed in Article 13 of the Hague Convention (http://www.hcch.net/index_en.php?act=conventions.text&cid=24) which states that a State is not bound to order the return of the child if it is established that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

It seems that the Japan Federation of Bar Associations is not so much concerned about the “best interests of the child” as it is in the “best interests of the pocketbook” of its attorney members, who are profiting heavily from the current legal situation of international child abductions.  One Japanese attorney has even admitted to handling 200 such cases per year.  For each of these cases it is not uncommon for each side to spend tens of thousands of dollars for legal fees, with the cases rarely if ever getting resolved.  These cases are basically a bottomless money pit for the parents involved, enriching the lawyers who belong to organizations such as the JFBA.

http://mdn.mainichi.jp/mdnnews/news/20110223p2g00m0in006000c.html

Lawyers press for child’s best interest under int’l custody pact

TOKYO (Kyodo) — Japanese lawyers said Tuesday they have urged the government to try to secure children’s best interests if it decides to sign an international convention designed to help resolve cases in which foreign parents are prevented from seeing children “abducted” to Japan after their marriages with Japanese nationals fail.

The Japan Federation of Bar Associations said in a paper submitted to the foreign and justice ministries and the Cabinet Secretariat that Tokyo should guarantee in its domestic law that children should not be returned to their habitual country of residence if they are found to have been abused or subject to violence.

Satoshi Mukai, a JFBA vice president, told a press conference that even though member lawyers are divided over whether Japan should join the 1980 Hague Convention on the Civil Aspects of International Child Abduction, they compiled the paper to influence ongoing discussions at the government task force on the convention.

The treaty, which currently has 84 parties, stipulates rules and procedures for the prompt return of children to their habitual country of residence when wrongfully removed or retained in the case of an international divorce.

The government launched the task force comprising senior vice ministers in January to examine whether Tokyo should accede to the treaty. Japan is the only country among the Group of Seven major economies that has not signed the pact and it has been under international pressure to join the treaty.

The report said Japan should stipulate in domestic laws guaranteeing the implementation of the Hague Convention that children’s opinions will be appropriately heard and respected when authorities make a judgment on their return to their habitual country of residence.

The lawyers also said the legislation should make it clear that the Hague Convention is not retroactive, or only applies to wrongful child removals or retentions that occur after its entry into force in Japan and that it exempts parental child abduction cases that occur domestically.

They called on the government to raise public awareness of the Hague Convention and set a three-year preparation period before the treaty takes effect in Japan.

Whether to join the Hague Convention has triggered a heated debate in Japan, where it is customary for mothers to take sole care of children after divorces. It is not unusual for children to stop seeing their fathers after their parents break up.

Some critics in Japan argue that even though the pact says children will not be returned to their habitual country of residence if there is “a grave risk of physical or psychological harm,” past judgments have been made based on “limited interpretations” of the clause.

The JFBA urged the nation’s diplomatic missions abroad to provide necessary assistance to Japanese nationals who are involved in child custody disputes.

Naoki Idei, a member of the JFBA’s working group on the Hague Convention, said many member lawyers are concerned the treaty could endanger Japanese parents and their children who have fled abusive relationships.

As a legal remedy, the lawyers’ group called on the Japanese government to ratify optional protocols of international human rights treaties that enable individuals to file complaints for violations of their rights.

Idei said such a mechanism would help redress the situation of parents and children when a return to a child’s habitual country of residence is ordered under the Hague Convention despite claims of abuse.

(Mainichi Japan) February 23, 2011