It is well known that Japan remains one of the only countries in the world to have maintained exclusive child custody. This means that when a couple in Japan separates, only one parent is granted sole custody of the child/ren. Sole custody is usually granted to the parent who takes the child first which is known as “the principle of continuity of custody”. As women are the main caregivers of their children, sole custody is granted to mothers in most cases.
Once sole custody of a child is granted, this means that the non-resident parent will have less rights than the resident parent, and often means that the child/ren will lose contact with the non-resident parent completely.
In May 2024, the Japanese Government passed a bill which will allow for the option of “shared custody” rights for both parents. This new law will apply retroactively to couples who have already divorced and could go into effect from 2026. However, there is little detail about how joint custody orders will be enforced.
If a resident parent decides to move to another country i.e. to England, with their child without the other parents’ permission – whether they have sole custody of the child/ren or not – this is still child abduction.
In Japanese criminal law, there is a clear penal code for “abduction of a minor”, however the interpretation is less clear when it is a parent who commits the abduction. It is said that in these cases, the police do not intervene as they consider it a “cultural norm” and a matter of “family privacy”. Despite this, it is still important for the left behind parent to understand what their legal rights are in respect of applying for the return of their child/ren to Japan, or how they can apply for contact with their child/ren.
The Hague Convention
The 1980 Hague Convention is an agreement between various countries which aims to ensure the return of an abducted child to the country where they are habitually resident, so that issues about where they live in the future, and with whom they spend time with, can be decided by the Courts of that country. Japan is a member of the Hague Convention.
Child abduction can occur in two ways. The first is a wrongful removal. This is where the child is removed from Japan and taken abroad without permission from any one person/institution i.e. local authority in care proceedings, with parental responsibility for that child. The second is wrongful retention. This is where the child is kept in a foreign country after an overseas trip without permission from any one person/institution i.e. local authority in care proceedings with parental responsibility for that child.
If your child has been abducted and brought to the jurisdiction of England and Wales, you must notify The International Child Abduction Central Unit (ICACU). ICACU will then provide you with a funding letter, so that once you seek legal representation from a specialist solicitor, Legal Aid can be obtained (which is non-means and non-merits tested). Proceedings can then be issued at the High Court in London.
The Court needs to establish where the child is habitually resident, and its initial position is that a child should be returned to the country which they were living. However, there are various defences which the abductor may seek to rely on.
Consent – Article 13(a)
This is where the left behind parent consented to the child’s removal or retention in another country.
Acquiescence – Article 13(a)
This is where the left behind parent indicated by their words and/or actions, after the abduction, that they did not seek the return of the child.
Child’s Objections – Article 13
This is where the child objects to being returned and has attained an age and degree of maturity at which it would be appropriate to consider their views. However, it must be shown that their views have not be influenced by the abducting parent.
Grave Risk of Harm/Intolerability – Article 13(b)
This is where, if the abductor were to return the child to its country of habitual residence, there would be a grave risk that the child would be exposed to physical or psychological harm or would otherwise be placed in an intolerable situation.
Settlement
If the child has been removed from Japan for 12 months or more, it is arguable that the child has become settled within the new country and therefore should not be returned. This defence can only be used if the child has been in the new country for 12 months or more before Hague Convention proceedings have been issued.
If one of the above defences can be made out, the Court will then consider on a discretionary basis whether or not it is right for the child to be returned to Japan. However, if the defences are not made out, then an Order for the summary return of the child shall be made. It will then be for the Courts in Japan to determine the living and spend time with arrangements for that child.
Article 21 Proceedings
If the UK Court determines that a Japanese child should remain in the jurisdiction of England and Wales, then there is still the option for the left behind parent to start contact proceedings under Article 21 of the Hague Convention.
Again, you must notify ICACU who will then provide you with a funding letter, so that once you seek legal representation from a specialist solicitor, Legal Aid can be obtained (which is non-means and non-merits tested). Proceedings can then be issued at the High Court in London, which will later be transferred to the Court closest to where the child is living.
The purpose of these proceedings is to determine whether the child/ren should have contact with the left behind parent, and if so, on what basis and how frequently. A final Order made in the UK Courts is enforceable in the UK.
If you have a child/children who could be the subject of these types of urgent High Court proceedings in the jurisdiction of England and Wales, or you are already within proceedings, please contact our specialist solicitor Poppy Harber. Poppy Harber has experience living in Japan and can speak daily conversational Japanese. Alternatively, you can contact us at info@brethertons.co.uk.
This blog is also available in Japanese, you can read it here.
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