I’ve complained a good bit about the fact that Japan has never signed the Hague Convention on the Civil Aspects of International Child Abduction. Many others have as well. This website ran a fine piece by a reader whose husband’s ex-wife had kidnapped their child to Japan which frankly provides a safe-haven for Japanese mothers.
I’ve also likened certain aspects of family law to the English common law concept of adverse possession. Under adverse possession laws (which, to my knowledge, every state in the United States has adopted) a person who enters onto another’s land and actively uses it can become its owner after a certain period of time. Possession and use equal ownership.
And so it is with children in, for example, certain adoption cases. There, much like the landowner, an unmarried father can lose all rights to his child by the sole expedient of the adoptive parents’ gaining possession of the child for a certain period of time. That period of time is, by the way, far shorter and less precise than what’s required to gain ownership of land via adverse possession.
I’m sure many readers think I’m overstating the matter. I’m not. Just ask John Wyatt of Virginia who was a matter of a day or so late to the hospital at which his girlfriend had just given birth. By then, she’d given the child to adoptive parents and their lawyer in a nearby hotel room. They’d flown from Utah, unbeknownst to Wyatt, just for that purpose. That was a year and a half ago and he’s so far been unable to get his daughter back.
Supposedly even single fathers have parental rights, just like landowners do. And, just like landowners, they can see those rights vanish due to possession by another. That we treat children in adoption cases like property should tell lawmakers and judges something, but if it does, it’s not obvious.
International child abduction can work the same way. As another reader wrote on this site recently, Mexico is known the world over as a haven for mothers who abduct their children. That’s because, even though it signed the Hague Convention in 1990, and its citizens frequently benefit from it by the return of their children to them, Mexico is loath to return the favor.
It’s a classic example of culture trumping law. Mexico is a radically anti-father country, one obvious example being that, by law, mothers automatically receive custody of children under the age of 7-12 depending on the state.
So, when mothers abduct children to Mexico, fathers in other countries slam into the brick wall of Mexican anti-dad culture. Yes, the Convention requires return of the child within two months, but years routinely pass with no action on the part of the Mexican court system.
This article about Japan looks eerily prescient to me (Japan Times, 3/1/11). The writer is Colin P. A. Jones, professor of law at Doshisha University Law School. He notes that the Japanese government has been under considerable international pressure to sign the Convention including by the U.S. State Department. More than once I’ve encouraged Japan to sign, and the article suggests that it may do so in the not-too-distant future.
Jones believes, and I tend to agree, that Japan will sign, but in fact little or nothing will change. That’s because, like Mexico, it’s an anti-father culture, so the government will place all sorts of restrictions on Convention actions in Japan against Japanese mothers.
[I]t has also always seemed unlikely that signing the treaty will result in children who have been abducted to Japan by Japanese parents actually being returned to their foreign homes. The Japanese civil justice system lacks the tools to enforce a return and, probably more to the point, it is unlikely to ever be in the interests of any Japanese judge, cop or other bureaucrat to be responsible for a crying child being taken away from a weeping Japanese mother in any particular case.
And, as is true in seemingly all custody cases, domestic violence exceptions will likely be grafted on to Japan’s acquiescence to international law. Therefore, allegations of domestic violence will provide a more or less automatic ‘out’ for abducting parents.
[A]s a matter of law and judicial process, exceptions drafted around claims of domestic violence are likely to suffer from the same evidentiary and other practical constraints the convention is intended to address in the case of child custody decisions. In both situations, factual determinations are usually best made by courts in places where school officials, social workers and other potential witnesses are likely to reside, and where other relevant evidence is likely to be located. This is the child’s country of habitual residence under the Hague Convention, and logic suggests that claims of domestic violence or child abuse should also be adjudicated by courts where the conduct allegedly took place. This logic is even more compelling if the claims of violence are linked to a child custody dispute, and if the conduct in question also constitutes a criminal offense, as is often the case in many countries.
Likewise, Japan is apt to make an exception for threats of criminal prosecution for kidnapping by the country from which the child was taken.
The Japan Federation of Bar Associations (JFBA) also recently issued a formal opinion that included similar recommendations, as well as suggesting that children should not be returned if it would result in the abducting parent being subject to prosecution in their home country (the U.S., Canada and other countries have criminal penalties for parental child abduction).
If Professor Jones is right, whether Japan does or does not sign the Hague Convention, its treatment of Japanese parental abductors of children to Japan won’t change much. That’s because laws, however well meant, are often ineffective at changing the behavior of judges who are unavoidably steeped in the culture of the country in which they preside.
In countries like Mexico and Japan their radically pro-mother traditions make fathers’ rights to children and children’s rights to fathers delicate flowers indeed.