|Wikimedia Commons, US Department of State|
by Asafu Suzuki
In 2009, Christopher Savoie made international headlines when he flew to Japan to forcibly take back his children, who had been “abducted” by his Japanese ex-wife in defiance of an American court order. While the incident ultimately prompted review of Japan’s child custody laws, it shed light on a serious problem that affects many international families upon the parents’ divorce.
As international marriages become increasingly common in today’s globalized environment, so have international divorces. International divorces generally present various challenges, and custodial issues in international divorces can be particularly problematic. Difficulty arises when one parent illegally removes his or her children from their habitual residence. This phenomenon, commonly known as international parental child abduction, involves actual and potential human rights violations of all parties involved.
The Universal Declaration of Human Rights (UDHR) recognizes the family as “the natural and fundamental unit of society” (Article 16), and the International Covenant on Civil and Political Rights (ICCPR) further unpacks this right in Article 23. It stipulates that ICCPR signatories take “appropriate steps to ensure equality of rights and responsibilities of spouses” upon the dissolution of a marriage, and requires signatories to make provisions necessary for “protection of any children” in such cases.
The Convention on the Rights of the Child (CRC) specifically states that states parties must “take measures to combat the illicit transfer and non-return of children abroad” (Article11). The CRC has been ratified by every member of the United Nations (including Japan) other than Somalia and the United States. Japan’s tendency to protect Japanese mothers who have removed their children from abroad could be considered a violation of this provision.
The primary treaty dealing with the specific issue of international parental child abduction is the Convention on the Civil Aspects of International Child Abduction (Hague Treaty). The Hague Treaty treats the children’s interests as “paramount” and intends to “protect children internationally from the harmful effects of their wrongful removal or retention and ….to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.”
While that approach seems both pragmatic and in line with the basic protections of human rights law outlined above, only 87 states are current signatories of the Hague Treaty.
Japan is not among them and, as a result, has been at the center of controversy. The State Government’s Office of Children’s Issues (OCI) has opened 230 cases involving 321 child abductions to or wrongful retentions in Japan since 1994. Of these cases, 100 cases involving 140 children are active as of January, 2011. The most publicized of these cases involve Japanese women who defy American court orders and take their children to Japan without notifying the fathers, who have rightful custody. Using the framework of this typical scenario, the paragraphs below briefly examine the actual and potential human rights violations each party could face in an international custodial dispute.
Children who are wrongfully abducted or retained suffer from a violation of the rights afforded them under the CRC. Article 10 of the CRC grants “[a] child whose parents reside in different States” a right to “maintain on a regular basis…personal relations and direct contacts with both parents,” save in exceptional circumstances. In addition, Article 8 of the CRC deems that signatories “undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.”
The children in these cases, who are permitted to hold both American and Japanese nationalities until they turn twenty-two, have suffered (1) violations of their right to maintain regular contact with both of their parents (CRC Article 10); and (2) “unlawful interference” with their American nationality (CRC Article 8). In terms of CRC Article 10, these Japanese mothers will have violated their children’s right to maintain regular contact with their father by removing them to Japan and refusing to allow the American fathers to contact them on a regular basis.
The Japanese mothers also “unlawfully interfered” with the American part of their children’s identity by defying American court orders that recognize their American fathers’ custodial rights. Furthermore, by allowing these mothers to continue denying the children’s fathers the right to access their children, the Japanese government, which is a signatory to both ICCPR and CRC, may be violating the children’s rights “to preserve identity” (CRC Article 8) and to be protected upon the dissolution of a marriage (ICCPR Article 23).
The Left-Behind Parents
|Wikimedia Commons, David Shankbone|
In cases of international parental abduction, the so-called left-behind parents often face situations in which they received “equal protection” of the law (guaranteed by UDHR Article 7 and ICCPR Article 26) during the divorce process, but this protection was effectively nullified by the subsequent abduction of their children. The mothers violated the fathers’ right to family when they ignored lawful court orders granting the fathers custodial rights and denied the fathers’ right to access their children. (Needless to say, the fathers suffer various violations of their rights under American law as well, but such an examination is beyond the scope of this entry.)
The Abducting Parents
The discourse surrounding international parental child abduction by Japanese mothers often (and understandably) omits the interests of the abducting parents because the abduction itself is a blatant violation of American law and seems to be a violation of international standards. Media coverage of international parental child abduction cases in the United States is undoubtedly biased against the foreign, abducting parents. However, evidence suggests that at least some portion of abductions by Japanese mothers may involve instances of domestic abuse, which implicates another set of human rights concerns. While the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) does not explicitly mention domestic abuse or gender-based violence, the convention’s General Recommendation No. 19 (GR 19) declares that such abuses (including the infliction of mental harm) are a form of discrimination against women, and that women have a right to be free from these abuses.
The Hague Treaty contains provisions that allow signatories to not return the child in the case of domestic abuse (Article 13), but some lawyers assert that these provisions are only invoked in extreme cases involving rape or physical abuse. In addition, the Treaty does not explicitly apply the provision to abuse suffered by the mothers, though an expansive interpretation to include such abuse is possible. If Japan were to ratify the Hague Treaty or adopt a similar bilateral treaty with the U.S., Japanese women who have children in abusive marriages with Americans could be placed in vulnerable positions where there must sacrifice their security to maintain contact with their children in accordance with U.S. domestic law.
General Recommendations to CEDAW are intended to provide “clear guidelines” to state parties, but are not a binding source of law – and in any case, the U.S. has never ratified CEDAW. Nevertheless, it gives us a sense of the international consensus on this issue, and it’s clear that applying a high threshold in invoking a successful Hague Treaty Article 13 defense could constitute a violation of the rights of women with abusive husbands to be free from gender-based abuse.
The Japanese government has been taking steps to ratify the Hague Treaty. Reports indicate that the current administration is aiming to submit a bill that would endorse the treaty to the Diet (the Japanese parliament) in March. However, the establishment of an effective domestic legal regime poses significant challenges. For one thing, the Treaty requires the establishment of a Central Authority to oversee implementation, and such a process may take some time. But more than institutional issues, Japan traditionally grants custody to one parent (usually the mother), and the cultural barriers to an idea of joint-custody may be difficult to overcome.
As discussed in relation to the abducting parents’ rights, the Treaty may disadvantage Japanese mothers if the degree of abuse causing them to flee does not meet the necessary threshold to invoke Article 13 (1) b). Many party states have taken a strict interpretation of the “grave risk of harm” that faces the child whose primary caregiver is unwilling to return with him or her, and successful defenses based on this article tend to be exceptional cases. For example, where a mother had been domestically abused by the father and is unwilling to accompany the child in his or her return, an Article 13 (1) b) defense could be unsuccessful where the father had not abused the child because a court, not recognizing that living with a father that abuses his wife is not in the child’s best interest, may reason that the grave risk of harm to the child would be avoided if the mother returned with him. Although some European and other states have moved towards a more liberal interpretation, the United States may be less willing to stray from a strict standard, considering that it has adopted a strict interpretation in the past and tends to shirk international human rights obligations more than European states.
In Japan, the prevailing view of international parental child abduction is that Japanese women are running away from their foreign, abusive husbands, a view which undoubtedly stance of the Japanese government and the Japanese public on these cases.
Finally, despite the intent behind the Treaty, the expediency of the children’s return to their home countries has been questionable in some cases, as exemplified by the highly-publicized Sean Goldman case.
Furthermore, the signing of the Treaty will also not apply to cases that arise before the Treaty takes effect in Japan; a political solution would be necessary to resolve such cases. The Treaty, therefore, will not provide a quick fix, or do anything to preserve the rights of those who are being effected by this issue right now. International parental child abduction to Japan is an issue that requires effort and time for both resolution and future prevention.
Once its institutional structures are in place, Japan should work to ensure that its institutions are both respectful of international familial norms and conducive to rights set out in the CRC in cases involving international child custody disputes. In addition, both Japanese and American courts should weigh, where applicable, an abused mother’s needs and the likelihood that she can comply with a return order of the child without putting herself in harm’s way.