Japan Signs Hague Convention–Will It Change Its Policies on International Child Abductions?

Should the Transportation Security Administration create a “no-fly” list for children in custody disputes?  That’s what Michael Sanchez wants them to do.  Sanchez is the Illinois man whose then two-year-old daughter was abducted to Brazil by her mother.

Nigia Machado kept the girl there for over three years, even refusing Sanchez access to her when the travelled there from the U.S.  Now Machado has agreed to allow Sanchez to see his daughter, but importantly, she did so of her own volition.  Brazilian courts seem to have played no role in encouraging her to do so.

In that, Sanchez’s situation closely parallels that of Sean Goldman who spent five years getting his son back from Brazil, to which his wife had abducted the boy.  Goldman’s case took five years to resolved despite assistance from his Congressman and threats by Senators to cut off U.S. aid to Brazil.  Sanchez had no such help.

All of that is strange given the fact that Brazil and the United States are both signatories to the Hague Convention on the Civil Aspects of International Child Abduction.  That document gives the country to which a child is abducted 60 days to return him/her to the country of origin.  Needless to say, Brazil makes no apparent effort to abide by the term of the treaty it signed.

At that, Brazil is far from the worst signatory country in living up to its obigations under the convention.  That award goes to Mexico that routinely ignores the treaty in favor of domestic laws favoring maternal custody.

The point being that there’s a treaty in place for the return of abducted children, but it regularly fails to accomplish that one task.  Enter Michael Sanchez who’s been victimized by Brazilian courts.  He knows first hand just how ineffective the convention is.

He also knows first hand how ineffective the U.S. State Department is at helping U.S. citizens get their children back from any country any time.  Several such parents gave an earful to a congressional subcommittee recently and part of their message was the uselessness of the State Department.

So Sanchez wants to short-circuit all of that.  He wants to stop parental abduction of children before it starts; hence his idea for a no-fly list for kids.  My understanding is that a child would be put on the list by order of any court adjudicating custody of the child.  Presumably, the child would be taken off the list once the court ruled on custody, which raises the obvious question, “why wouldn’t the parent just abduct the child then?”

After all, no court can keep the child from traveling indefinitely, but a parent can abduct a child any time irrespective of whether there’s a custody dispute in progress or not.

Still, Sanchez’s idea, if implemented, would help put a stop to some abductions.  (Notably it would not have prevented Sean Goldman’s wife from taking his son; there was no custody matter in the courts at the time she left.)

Meanwhile, perhaps the worst national actor in the entire drama of global child abduction is Japan, that invariably provides a haven to which Japanese mothers can flee with their children.  Japan has never signed the Hague Convention, so fathers who lose their children to that country reliably never see them again.  One father, Christopher Savoie, was arrested by Japanese authorities when he travelled there in a failed effort to see his child.

Now it seems the Japanese government has vowed to sign the Hague Convention.  But, as this article tells us, don’t break out the champagne just yet (Japan Times, 7/27/11).  Face it, anything Brazil and Mexico can do, Japan can do worse.  The prognosis for Japan’s actually applying the terms of the convention once it signs it is poor.

Watching the parliamentary debates that have been taking place in the Japanese Diet, it is difficult to believe that Japan intends to abide by the Hague treaty in good faith.

To date, most debate within the Japanese Diet has revolved around creating “exceptions” under which Japan would not have to return abducted children. These telling debates are in obvious opposition to the spirit of the Hague treaty in which signatories purport to want to return a child to his or her home following an abduction.

The article’s author, Paul Toland, is the national director of Bring Abducted Children Home.  He lists several concerns his organization has that have the eerie ring of truth.

First, members of BAC Home are gravely concerned that the Japanese government will not be willing to address the current cases of parental abduction (since the Hague treaty is not retroactive).

Japan owes it to these children and the parents who have suffered for years from this grave injustice to provide a bilateral framework solution to promptly return these abducted children to their habitual residence without delay.

Second, Japan must utilize standard rules of evidence when domestic violence is alleged. Allegations alone are not adequate to prevent the return of a child. Evidence, originating in the child’s country of habitual residence, must be utilized to rise to the Hague treaty’s legal burden of proof standard of “clear and convincing” evidence required in domestic violence allegations.

Currently, abductors in Japan are able to cut off all access to the Left-Behind Parent through unsubstantiated hearsay allegations. Facts and evidence are optional, but not necessary under Japan’s proposed system for Hague Return Denial, and this is unacceptable…

Additionally, the Japanese government seems concerned that international child abduction is considered a crime in many other nations, and has vowed to not return abductors who are labeled as criminals or charged with a crime. This is not a determination for Japan to make. Japan cannot simply exonerate its citizens who break the laws of another nation while residing in that nation.

Then there’s the ubiquitous “best interests of the child” shibboleth that Japanese courts use to justify child abduction by Japanese mothers.

For years the Japanese government has used the subjective phrase “best interest of the child” to justify abductions by its citizens and deny access to left-behind parents…  Typically in Japan,the judge individually defines “best interest” without standards or guidance, using the “best interest” of a child as a “catchall” to justify judicial rulings preventing the abducted child from being returned to the left-behind parent. In one reported case, custody of a child was given to a mother because the “best interest” analysis required that she live in a house with a Japanese garden, which the mother had and the left-behind father did not.

Here as elsewhere, “the best interests of the child” is a group of words in search of some meaning.  Here as elsewhere, the words are a thinly-veiled excuse for judicial or cultural bias.  Here as elsewhere, that bias is pro-mother and anti-father.

There’s little to suggest that Japan’s signature on the already-proven-to-be-ineffective Hague Convention will make one bit of difference to its traditional mistreatment of fathers generally and non-Japanese fathers in particular.

Maybe Michael Sanchez’s idea isn’t such a bad one after all.

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