The Hague Convention (Convention on the Civil Aspects of International Child Abduction)
FAQ on the Hague Convention
February 21, 2018
Q1 What is the situation which allows for my application for the return of my child under the Hague Convention?
A1 A request for assistance for return of a child under the Hague Convention can be made if the child is under the age of 16 and was wrongfully relocated from a habitual residence in a contracting state to another contracting state in violation of the right of custody. These two states need to have been contracting states at the time of wrongful relocation.
Q2 If a child had been removed to or retained more than a year ago, can the Hague Convention be applied to the case?
A2 Even if the removal or the retention of a child across international borders had taken place more than a year ago, you can apply for assistance in the child’s return to his/her habitual residence under the Hague Convention. However, if you file the petition after more than a year of the removal or retention and it is found that the child is already settled in his/her new environment, the court might not order the return of the child.
Q3 My (ex-)spouse has taken our child overseas from Japan without my permission. What should I do?
A3 If the state to which the child has been taken is also a contracting state of the Hague Convention, it is possible to file an application to the Central Authority of Japan [Note] or the contracting states for assistance for return of the child to Japan, or assistance for visitation or other contacts with the child under the Hague Convention. For details about how to apply for assistance, please refer to this page for the assistance for return of the child and this page for the assistance for visitation or other contacts with the child.
[Note] Hague Convention Division, Ministry of Foreign Affaires
Q4 I do not have access to my child in Japan. What should I do?
A4 If a parent in a Contracting State other than Japan does not have access to the child in Japan, regardless when the access to the child ceased to be realized, the parent may file an application to the Central Authority of Japan or of the state where you live for assistance to realize visitation or contact under the Hague Convention. For details about how to apply for assistance, please refer to this page.
Furthermore, the parent may apply for this assistance to realize visitation or contact with the child even if the child has not moved across national boundaries (for instance, where the parent who used to reside in Japan moved out to another Contracting State and became unable to have the opportunities for visitation or contacts with the child).
Q5 I want to take my child back to Japan with me, but is there a risk that I’ll be arrested in the future when I return to the country we live in now?
A5 Depending on the country, taking a child out of a country without the consent of the other parent may be considered as a criminal act abduction or kidnapping, and may result in arrest (Australia, France, United Kingdom, United States, etc.). In order to avoid such a situation, it is strongly advised to consult with a lawyer in the country you live before taking the child back to Japan.
Q6 I want to take my child back to Japan (or abroad) with me as I experience violence by my spouse. Would I have to return my child back to the state where the child currently resides although there is a risk of Domestic Violence (DV)?
A6 The Hague Convection stipulates that the child be returned to the state where s/he was habitually resident, in principle. However, the Court may recognize grounds for refusing to issue an order for the return of child, when there exists a grave risk that would expose the child to physical or psychological harm, such as in a case where the child would be subject to violence by the requesting parent or where the other parent would be subject to violence by the requesting parent which causes psychological harm to the child. This does not mean that the Hague Convention would not be applied when the grounds for refusal to order the return of the child exists. The Hague Convention still remains applicable in such cases, with a possibility that the case would be brought before the court.
It is to be noted that, in claiming such grounds for refusing an order for return of the child, documents to establish such a claim need to be submitted to the court by claimant.
Q7 Is there any special treatment and/or support given for a victim of DV?
A7 In the Hague Convention Division, the Ministry of Foreign Affairs of Japan, there is a staff member with expertise in dealing with victims of DV. The issue-expert would deal with the case, or refer the case to DV support organizations in Japan as may be appropriate, depending on requests. Additionally, overseas diplomatic missions of Japan also provide their support for victims of DV, upon consultation. (see Q8)
Q8 What assistance will the Central Authority provide in order to amicably resolve the issue of the child’s removal?
A8 The Central Authority of Japan can provide assistance that includes helping communication between the two parties, alternative dispute resolution (ADR) by a contracted institution, referral service for lawyer, and visitation support organizations. Furthermore, those with financial difficulties may apply for the civil legal aid system for advance payment to a lawyer etc. For details on the civil legal aid system, please see the website of the Japan Legal Support Center (Houterasu).
Q9 Does the Central Authority of Japan support only the parent whose child was removed or whose visitation or other contact with the child is interfered?
A9 The Central Authority of Japan offers assistance to both parties to the case from a neutral standpoint and giving paramount importance to the best interests of the child. Accordingly, the Central Authority of Japan does not act as an agent of either side of the parties. Please read a letter from the Central Authority of Japan carefully once received as the details of assistance are explained in the letter sent to the applicants as well as the person who lives together with the child.