This article from the Japan Times online provides an excellent update regarding the status of the Hague treaty being enacted by Japan. 

The article notes that before the Hague treaty can become effective, it still must be passed by the Diet.  Other related bills need to be drafted and passed by the Diet as well, despite widespread opposition to the treaty.  The treaty will not be retroactive to current cases. 

The article mentions the following statistics that the Japanese Foreign Ministry is officially admitting to as being currently active cases “involving Japanese spouses who took their children to Japan” from the following four countries:

U.S.:     100 cases

U.K.:      38 cases

Canada:  37 cases

France:   30 cases

http://search.japantimes.co.jp/cgi-bin/nn20110607i1.html

Tuesday, June 7, 2011

FYI

THE HAGUE TREATY

Hague treaty seeks to balance rights of kids, parents

By MASAMI ITO

Staff writer

Prime Minister Naoto Kan’s administration said in May it would establish legislation as part of preparations for Japan joining an international convention to prevent cross-border abductions of children by their parents.

Despite international pressure to sign the 1980 Hague Convention on the Civil Aspects of International Child Abduction, Japan had been reluctant amid strong opposition from politicians in the ruling and opposition parties, experts and Japanese mothers who took their children to Japan after failed international marriages.

Japan’s decision was welcomed by the international community, but it is still unclear whether the country will actually be able to sign the treaty anytime soon.

What does the treaty entail?

The Hague treaty aims “to secure the prompt return of children wrongfully removed to or retained in” a member state. The treaty covers children up to age 15.

A typical example of what the treaty tries to address would be a case in which an international marriage has failed and one of the spouses takes offspring out of the country where the child has been living without the consent of the other parent. Such a physical removal may also be in defiance of a court custody decision, such as in cases of divorce when both estranged spouses have certain custody and visitation rights.

If offspring are spirited away from a country, the parent who thus lost custody would file an abduction complaint with the government, or “central authority” that handles such matters.

If both the nation that the offspring are removed from and the one they are taken to are Hague signatories, the designated central authorities of the two nations would seek to ensure the safe return of the child to its “habitual residence.”

But if the nation where offspring are taken to is not a member of the treaty, such as Japan, it is not obliged to hand over the offspring. This can cause bilateral friction on a political level, and also lead to charges of felony abduction being leveled at the parent who took the child or children away.

As of April, the treaty had 85 signatories, including Australia, Brazil, New Zealand, South Africa and Spain. Of the Group of Eight countries, only Japan and Russia have refused to join.

What prompted Japan to move toward joining the Hague treaty?

Although not the first child abduction case involving a Japanese parent, an incident in September 2009 brought Japan’s stance on the issue into the international spotlight.

Christopher Savoie of Tennessee came to Japan to reclaim his children from his Japanese ex-wife, who had brought them to the country without permission.

Savoie was arrested by Japanese police for allegedly attempting to “kidnap” minors, but prosecutors didn’t file criminal charges against him. The case was widely reported by both the foreign and Japanese media and became a bilateral diplomatic headache.

International pressure to sign the Hague treaty has increased since then.

According to the Foreign Ministry, there are 100 cases involving Japanese spouses who took their children to Japan from the U.S., 38 who brought offspring here from the U.K., 37 from Canada and 30 from France. But these are just the numbers reported to the ministry. The actual number is believed to be higher and to stretch back many years.

Why has Japan been reluctant to sign the treaty?

The government feared that Japanese mothers who claimed to have been victims of domestic violence would be forced to return their children to the abusive environments they fled from.

“If Japan were to sign the Hague Convention, (my child would) be forced to live with an abusive father and be exposed to violence again,” said a women who attended a government panel discussion on the Hague treaty in March. “And I will become a (declared) criminal.”

The Hague treaty in principle is geared toward returning offspring to their country of habitual residence.

Cultural and legal differences have also been noted, as many Western countries have a joint-custody system. Japan uses a system that grants sole custody, usually to the mother.

Are there circumstances under which a child is not returned to the country of residence?

-Article 13 also says a state is not obligated to return a child if “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.”

But experts have pointed out that the clause is vague and opponents argue that it does not include abuse against mothers.

According to the data collected by the Hague Conference on Private International Law released in 2008, only 20 percent of all global return applications were either rejected or judicially refused.

How will Japan address the strong concern about cases of domestic violence?

The outline of a draft bill approved by the Cabinet stipulates that the return of the child will be denied if the child has experienced physical or verbal abuse “and is in danger of being subjected to further abuse if returned to its habitual residence.”

In addition, the child will not be returned if the spouse has been the victim of “violence that caused the child to suffer from psychological trauma” and that the parent was in danger of further abuse if he or she returns with the child back to the country the offspring was taken from.

Experts, however, noted that the conditions for rejecting the return are extremely strict.

“The draft lists various conditions, not making it easy for the spouse to claim domestic violence to make sure that the child would not be returned,” attorney Mikiko Otani said. “And the parent would also need to prove that there was domestic violence.”

What are the positive aspects of Japan joining the treaty?

There are Japanese parents whose children have been taken away to another country by their ex-spouses. Japan, not being party to the treaty, has been powerless to rectify these situations.

Otani, an expert on family law, pointed out that there are many cases in which the ex-spouse is from a member country of the convention and that government has the responsibility to deal with these international parental kidnapping cases.

In Japan, the responsibility falls on the individual because Tokyo has not signed the treaty.

Otani also expressed concern that if Japan continues to delay joining the treaty, other member states will take harsher measures.

In the U.S., for example, several Japanese mothers are on the FBI website, wanted for “parental kidnapping.”

“I think it comes down to the fact that the Hague treaty is the active international rule,” Otani said. “If Japan refuses to join the convention, all the (member states) can do is make sure that the children cannot be taken out of their countries. They already have a tendency to do so, but I think they will make it even harder for the children to leave.”

In many cases, court orders are issued ordering the child not to leave the country.

Does this mean that Japan will immediately conclude the convention?

No. Even if the Japan signs the treaty, it needs Diet ratification. Related bills must also be drafted and passed.

According to the draft legislation, the “central authority” will be the Foreign Ministry, which will be in charge of overseeing cases related to the Hague treaty, including locating abducted children, taking measures to prevent child abuse and advising parents on the voluntary return of children.

But there is still strong domestic opposition among the public, as well as in both the ruling and opposition camps, and it is unclear how soon Japan will be able to conclude the treaty and enact related domestic laws.

If Japan joins the treaty, would it apply to current cases?

No. The treaty will only apply to cases that are brought against Japan after it signs the Hague Convention. Experts say it will be up to the government to decide how to handle the cases that occurred before Japan signs the treaty.

Otani pointed out that there were cases in which the mothers eventually want their children to make the most of their dual nationality, such as visiting the country they were taken away from, but can’t for various reasons, including the mother’s fear of being arrested if she were to accompany the offspring to a nation where she is listed as a fugitive.

“It may be impossible to resolve all cases or return the children, but there may be some fathers who would just be happy to be able to have access to their children,” Otani said. “The benefits of these children are being robbed . . . and I think that it is necessary to establish a (bilateral) scheme for those who want to resolve their case so that the children” can visit both countries freely.

The Weekly FYI appears Tuesdays. Readers are encouraged to send ideas, questions and opinions to hodobu@japantimes.co.jp

http://www.therepublic.com/view/story/749bad3e5a664aaea8d4c61a5df2c57a/TN–Japan-US-Custody-Battle

Tennessee man wins $6.1 million judgment from ex-wife who abducted children to Japan

  • JOE EDWARDS  Associated Press
  • First Posted: May 09, 2011 – 4:51 pm
    Last Updated: May 09, 2011 – 5:53 pm

NASHVILLE, Tenn. — A judge on Monday awarded a Tennessee man $6.1 million from his ex-wife who took their two children to Japan and never returned.

It remains unclear whether Christopher Savoie will ever actually get the money on behalf of his children, 10-year-old Isaac and 8-year-old Rebecca, because laws in the two countries conflict.

His ex-wife, Noriko Esaki Savoie, who is Japanese, left with the children in 2009 after she and Christopher Savoie were divorced and each granted partial custody. When it became clear she might not return, a Tennessee court issued a warrant for her arrest and gave the father full custody. But the order had no effect because Japan hasn’t signed an international treaty governing child abduction.

Christopher Savoie, now 40, tried unsuccessfully to get the children when he made a trip to Japan in September 2009.

Japanese law allows only one parent to have custody in cases of divorce — usually the mother.

Christopher Savoie said Monday after winning the judgment that the money is not paramount to him and he hopes the court’s decision might influence his ex-wife.

“I just want to see my kids,” he said. “The ultimate goal is to get her to the table so the children can have a relationship with their father and mother.”

Franklin Chancellor Timothy L. Easter awarded the amount based on false imprisonment, emotional distress and breach of contract.

“We are hopeful that the breach of contract might allow him to go about collecting damages,” said Eileen Burkhalter Smith, one of Christopher Savoie’s attorneys. “But you never know.

“Hopefully it could give somebody, in the U.S. government in particular, the means to allow this father to get something or see his kids.”

Noriko Savoie, now 39, was not represented by an attorney during the 30-minute hearing.

Christopher Savoie is attending law school and working part time as a legal intern. He has remarried and has three stepchildren.

This segment offers some good background about the legal situation in Japan and also an interesting interview with Christopher Savoie about his experiences in Japan.

http://today.msnbc.msn.com/id/33788543/ns/today-parenting_and_family/?ns=today-parenting_and_family

He’s coming home, heartbroken, without his children.

http://www.newschannel5.com/global/story.asp?s=11323615

Rally to Free Christopher Savoie, Washington, Oct. 3

Children’s Rights Council of Japan is organizing a Rally and Candlelight Vigil in Washington, D.C. on October 3, calling on Japan to free Christopher Savoie and reunite abducted American children with both sides of their families.  The Rally will be held in front of the Japanese Embassy, 2520 Massachusetts Avenue, starting at 2:00 PM, with a Candlelight Vigil in front of The White House starting at 7:00 PM.

Christopher Savoie was arrested and imprisoned in Japan after trying to recover his two American children, who were kidnapped to Japan in violation of U.S. law by his Japanese ex-wife.  Christopher’s wife, Amy Savoie, will speak at the Rally, as will other victims whose children are being held in Japan.

Scheduled Speakers:

Walter Benda, Co-founder, Children’s Rights Council of Japan and father of two American daughters who were abducted in Japan in 1995.

Commander Paul Toland, US Navy, sole surviving parent of a daughter, Erika, who was abducted in Japan in 2003.

Amy Savoie, wife of Christopher Savoie and stepmother of two children abducted to Japan this year.

Kay Kephart, a grandmother whose grandchildren are being held in Japan.

More speakers to be added later.

The public is invited to attend.

Please direct media inquiries to crcjapan@yahoo.com and check our website at http://www.crcjapan.com for updates and further details.  Phone inquiries:  276-637-0117.

Click the one titled American jailed in Japan over custody battle.

http://www.msnbc.msn.com/id/21134540/vp/33068613#33086474


http://www.cnn.com/video/#/video/world/2009/09/29/lah.japan.custody.case.cnn

CNN will be discussing Christopher Savoie’s case tonight on the Campbell Brown show at 8PM Eastern Time.  Left-behind parent Paul Toland,  whose Japanese wife has died and whose child is being retained in Japan by his former mother-in-law, will appear on the program.

As non-Japanese left-behind parents with our children kidnapped or illegally retained in Japan, we’ve always been told by the U.S. State Department and Japanese authorities that parental child abduction is not a crime in Japan, and that there is nothing that the Japanese police or other Japanese authorities can do to help us.  Now it seems there is a special treatment of parental child abduction by the Japanese authorities when the abducting parent is not Japanese.  An American father from Tennessee, Christopher Savoie, with U.S. custody orders in hand, whose two U.S. citizen children recently were illegally retained in Japan by his Japanese ex-wife, is now sitting in a Japanese prison for trying to recover his children.   Here is the link to the CNN story with the full details of Christopher Savoie’s attempt to reunite with his children:

http://www.cnn.com/2009/WORLD/asiapcf/09/29/japan.father.abduction/index.html

And here is our backup link to the story:

American jailed in Japan fo…

With all the publicity and countless cases of child abductions to Japan, there is absolutely no excuse for the Tennessee judge in this case, Jim Martin, to have allowed the Japanese mother to travel to Japan with these two American children and enable another international child abduction to Japan.  Shame on you, Judge Martin.  Something needs to be done to make you take responsibility for the suffering and life altering tragedies you have caused.

http://www.newschannel5.com/Global/story.asp?S=11171461

Back-up PDF link:
Ex-Wife Abducts Two Children, Disappears to Japan – NewsChannel 5.com