On the 26th and 27th of May 2011, Deauville in northern France will host a G8 summit. Among many other items for discussion the March earthquake in Japan, a long-standing member of the G8 (and the original G6), and the nuclear crisis which the quake precipitated are likely to be central. Prime Minister Naoto Kan is also planning, it seems, to make an announcement at the summit in relation to quite a different issue: accession to the Hague Convention on the Civil Aspects of International Child Abduction. This Convention, which was concluded in October 1980 and entered into force between signatory states in December 1983, essentially provides a mechanism whereby a child (under 16 years of age) abducted across international borders may be promptly returned to the country of his/her habitual residence. It provides no substantive rights, but insists that a court in which a Convention action is initiated should not enquire into the merits of any custody argument relating to the relevant child, but determine only in what jurisdiction such issues should be heard. The Convention requires the return of any child who was an habitual resident of a signatory state immediately before the abduction. It applies to both parental abduction (i.e. one parent removing the child from the jurisdiction without the consent of the other) and abduction by others.

While the Convention is strong in its application, it only applies between signatory states of which, at present there are 84 (this will be 85 as of July 1st 2011 when Andorra becomes a signatory state). Ireland became a signatory in 1991 (figures on cases dealt with by the Irish Central Authority for Child Abduction in 2010 are available here). Japan’s failure to become a signatory state of this Convention to date, combined with Japanese law which provides for only one parent to have custodial rights in the aftermath of a divorce (Article 819 of the Japanese Civil Code), has caused many difficulties for parents whose children have been taken there, usually by the other parent. Professor Shinichiro Hayakawa from the University of Tokyo provides an interesting insight into this issue here.

TIME magazine reports on this issue this month, noting the case of Christopher Savoie – a father who was arrested in Japan in August 2009 when attempting to take back his two children who had been taken there without his consent by his Japanese ex-wife. Earlier this month a Tennessee court granted judgment against Mr Savoie’s ex-wife in the amount of $6.1 million for breach of their divorce agreement which was in place in the U.S. and purported to grant him regular access to the children. Mr Savoie stated that money is not the issue, but the case has raised some publicity around the matter.

One Irish father, David Morgan from Carlow, whose Japanese wife took their two children to Japan without his consent in June 2008 keeps a blog as an attempt to raise awareness around the issue, in an effort to connect with other parents in a similar position, and as a resource which his children may someday find. Readers may be interested in accessing it here.

The Japanese authorities, although already considering accession to the Convention, may have been encouraged in February of this year by the Ambassadors and Representatives of ten countries (Australia, Canada, Colombia, France, Hungary, Italy, New Zealand, Spain, the UK and the US) plus the European Union calling for ratification. It is to be hoped that this will promptly be done and that proper arrangements will be put in place without undue delay for parents and children who find themselves in what is currently a helpless position.

Powered By DT Author Box

Written by Yvonne Daly

Yvonne Daly lectures Criminal Law and the Law of Evidence in the School of Law and Government at Dublin City University, where she is also a member of the Socio-Legal Research Centre. She publishes widely on matters of criminal justice, criminal procedure and the law of evidence. She is co-author of Irish Criminal Justice: Theory, Process and Procedure. You can contact her at yvonne.daly[at]dcu.ie