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Summary: Legislators have drafted domestic laws required to participate in the Hague Convention, which sets rules for international child custody issues.
[25 January 2012] - A draft outline of legislation necessary for joining the Hague Convention would require the mandatory handover of children brought to Japan by one parent without the other parent's consent. A subcommittee of the Legislative Council, an advisory panel to the justice minister, announced the draft Monday for domestic laws required to participate in the Hague Convention on the Civil Aspects of International Child Abduction, which sets rules for international child custody issues. The draft stipulates the procedures and rules for the return of children who were brought to Japan without the consent of the child's other parent, following their petition. If a Japanese parent refuses to return the child despite a family court order, a court execution officer would ultimately be able to execute a mandatory handover of the child, according to the draft. The council said it plans to submit the draft outline to the justice minister in early February. The government is likely to submit the related bills to an ordinary Diet session as early as March, according to government sources. Among Hague Convention member nations, a child under 16 years old should be returned to the country of his or her habitual residence if one parent takes the child out of that country without the other parent's permission. The convention also allows parental rights to be defined by the law of the nation where the child lived immediately before the removal. Japan is the only country among the Group of Eight nations that does not participate in the Hague Convention. Prime Minister Yoshihiko Noda told US President Barack Obama during the Japan-US summit talks in November that he planned to submit the related bills to the following ordinary Diet session. According to the draft, a case in which a foreign parent demands their child's return would be tried at a family court in either Tokyo or Osaka. The trial would be closed to the public in principle. Should a parent disagree with the court's decision, the parent would be able to file an appeal. The central authority to be established in the Foreign Ministry will accept petitions for assistance from foreign parents. In order to determine the whereabouts of children, the central authority will be authorised to demand administrative bodies and other organisations provide personal information on the children. For cases in which the whereabouts are unknown, the central authority would be able to ask police to investigate. In cases where it is feared the child might be taken outside Japan during the handover process, a family court has the authority to bar the child from leaving the country after one of the parents requests the court to do so, according to the draft. When the request for the return of a child is approved, a family court would order the Japanese parent to voluntarily return the child. If a Japanese parent does not obey such an order, the court would impose fines on them. If the fines are not paid within two weeks, a court execution officer would be authorised to execute a mandatory handover of the child, the draft said. The draft stipulates when a parent who brought a child to Japan refuses to allow the officer into their residence, the officer has the right to enter the residence and remove the child. The office would also be allowed to request police assistance if needed. Exceptions The Hague Convention allows for exceptions for the handover of children, "if there is a grave risk that the return would expose the child to physical or psychological harm." The draft outline says judicial authorities can refuse a request to return the child in cases where physical violence to the child or domestic abuse is a factor. The draft also mentions other cases that would warrant rejecting the return claim--for instance, if the child has adjusted to a new environment after being in Japan for more than a year; or the child refuses to be returned, or the parent who demanded the handover did not properly care for the child. Further Information: