Overview of the Hague Convention and related Japanese Legal Systems

1 Overview and Procedures of the Hague Convention

(1) Summary

Increase in International Marriage/ Divorce and "Removal of Child"

In the 1970s the annual number of international marriage between Japanese and non-Japanese was around 5,000. In the late 1980s, however, it rose sharply, and in 2005 it exceeded 40,000 per year. The increasing number of divorce which resulted from such trend has surfaced many serious cases, such as where one parent took child from Japan after the break-up of a marriage and refuses the other parent permission to meet the child, and where a divorced Japanese parent living in a foreign state was not allowed to make a temporary return to Japan with the child due to Japan's non conclusion of the Hague Convention.

The Hague Convention protects the interests of the child

As more and more people began moving globally and marrying internationally in the 1970s, it was widely recognized that it was necessary to solve the issue of international jurisdiction concerning cases such as child removal done by one spouse and the rights of child custody. In this context, "Hague Conference on Private International Law (HCCH, the permanent bureau in the Netherlands, established in 1893) Open a New Window ", with its objective to unify private international law, decided to deliberate this issue in 1976, and developed the Hague Convention on the Civil Aspects of International Child Abduction（Hague Convention) in October 1980. As of August 2024, 103 countries in the world have concluded the Hague Convention. (List of Contracting states) (PDF) Open a New Window Although the Hague Convention may be referred to a collective term of more than 30 Private International Laws, the Hague Convention here refers to the Convention on the Civil Aspects of International Child Abduction.

System of the Hague Convention

The trans-boundary removal of a child can pose a negative effect on the child as that would force the child into a new living condition disconnecting relations with one of the parents, relatives or friends and force him or her to adapt to a different language and culture. In order to protect the child from such environment, the Hague Convention prescribes international cooperative schemes in which the child shall principally be returned promptly to the state where the child habitually resided, and ways of cooperation to realize trans-boundary parent-child visitation or contact.

(1) In principle the Child should be returned to the state of his or her habitual residence

The Hague Convention obliges the Contracting States to accept the principle that the child should be returned to the state of his or her habitual residence based on the consideration that the trans-boundary removal of a child in breach of the custody right conflicts on the interest of the child, and that a judgment as to which one of the parents is to take care of the child should be made in the state of child's habitual residence. This is rooted in the idea that it is desirable to restore the wrongful condition (breach of custody rights) to the original state before making a judgment on the custody of the child, then to consider relevant information of the child on living conditions and arguments made by both the parents in the court of the state of the child's habitual residence.

(2) Ensuring the opportunity for parent-child visitation or contact

The Hague Convention also prescribes that Contracting States should give support for realization of parent-child access so as to improve the conditions for the parent and the child who are not able to transnationally meet with each other. Further, ensuring the opportunity for parent-child access would prevent removal or retention of child in the future, thereby promoting the interest of child.

Significance of the conclusion of the Convention

The best interest of child should be prioritized.

Prior to entry into force of the Convention in Japan in 2014, when a child was removed to a foreign state, the left-behind parent needed to find the whereabouts of the (ex-) spouse and child all by him-or herself, overcoming barriers of different law and culture, and to file a lawsuit for the return of the child to a foreign court. Furthermore, where a Japanese parent divorced in a foreign state who wished to make a temporary return to Japan with his or her child, despite a court of the foreign state would not permit the Japanese parent to do so, as it was considered that the temporary return could possibly develop into a retention of the child given that a procedure for the return of the child was not guaranteed based on the Convention.
However, the conclusion of the Convention made possible for Japan to make use of the international cooperation mechanism to undertake procedures for the return of the child from the foreign state and to secure opportunity for parent-child access.
Specifically the rules for the return of the removed child became clear, bringing about an international standard, namely the Convention, to follow in order to solve problems and help the Japanese living abroad to overcome constraints that they used to face because the international rule is now applicable.
Also it is expected that the travel constraints on Japanese people in a foreign state with his or her child based on the status of Japan's non-contracting state of the Hague Convention can now be alleviated.
The principle of the Convention that a wrongfully removed child from one parent in breach of the custody rights should be returned is an effective safeguard against future child removals. What is also expected is that a parent and child residing in different countries across borders would have more opportunity to meet each other.

Conclusion of the Convention

In Japan, the Government set up the meeting of Parliamentary Senior Vice-Ministers of concerned government agencies in January 2011 to discuss whether it should conclude the Hague Convention and deliberate issues such as how to ensure consistency with the domestic legal system and how to ensure safe return of a child, and how a Central Authority should be established, taking into account various views for and against the conclusion of the Convention. As a result, the Government came to a conclusion that concluding the Hague Convention would have much significance. In May 2011 the Cabinet approved to start preparation for the conclusion of the Convention. Under the policy to establish a "Central Authority" within the Ministry of Foreign Affairs as the focal point to facilitate application for the return of the child and other procedures, implementing legislation was drafted by the Ministry of Justice and the Ministry of Foreign Affairs along with those with specialist knowledge.
At the 183rd Ordinary Session of the Diet on May 22, 2013, the conclusion of Convention on the Civil Aspects of International Child Abduction (the Hague Convention) was approved, and on June 12 the Act for Implementation of Convention on the Civil Aspects of International Child Abduction (the Implementation Act) was enacted.
In response to the approval and enactment of the Convention and the Implementation Act, the Cabinet made approval on signature, conclusion and promulgation of the Convention, and the Government of Japan signed the Convention and submitted the instrument of acceptance to the Ministry of Foreign Affairs of the Netherlands on January 24, 2014. Consequently, the Hague Convention came into effect from April 1st of 2014 in Japan.

(Refer to process toward Conclusion of the Hague Convention for more Details)

Related Materials

(2) Flow of Procedure

The Hague Convention prescribes mainly (1) Assistance Provided by Central Authorities and (2) Procedure for the Return of the Child

(a)Assistance Provided by Central Authorities

A Contracting State is required to designate a governmental agency as the Central Authority to fulfill the obligations imposed by the Hague Convention. In Japan, the Ministry of Foreign Affairs assumes the role of the Central Authority.
A parent whose child is removed can make applications for assistance concerning return of the child and for assistance concerning access to the child at the Central Authority of his or her own state, or at a Central Authority of the state where the child is located (the state to which the child removed). The Central Authority of the state where the child is located will screen the application, locate the whereabouts of the child and provide assistance towards amicable solution, including mediation in order to realize the return and/or visitation or contacts. The court, upon petition, makes a judgment on whether the child should be returned to the state of his or her habitual residence. (go to (b)) When the court decides upon the return of the child, the Central Authority will provide support for safe return of the child to the state of his or her habitual residence.

(b)Procedure for the Return of the Child

If both parties fail to reach an agreement, the court will issue an order for the child to be returned to the state of his or her habitual residence in principle. The court, however, might refuse to order the return of the child in an exceptional case, taking into account relevant information of the child on living conditions, opinion of the child and arguments of both parties if any of the following conditions applies.

(a) The petition is filed to the court after a period of more than one year has elapsed from the date of wrongful removal or retention and the child is now settled in a new environment.
(b) The applicant was not actually exercising the custody rights at the time of removal or retention.
(c) The applicant had consented to or subsequently acquiesced in the removal or retention.
(d) There is a grave risk that the return of child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
(e) The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
(f) It is not permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

2 Overview of the Implementation Act

(1) Content

The Implementation Act prescribes domestic procedures and other matters required to implement the Hague Convention.

(a) It designates the Minister for Foreign Affairs as the Central Authority and prescribes its authority, and (b) It prescribes court procedures (Procedure of Return of the Child) required to decide whether the child should be returned to the state where he or she held habitual residence before he or she was removed. While the Hague Convention consists of 45 articles, the Implementation Act consists of 153 articles.

In May 2019, the bill for partially amending the Implementation Act (“the Bill for Partially Amending the Civil Execution Act and the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction”) was approved in the 198th ordinary session of the Diet, and the amended Implementation Act was enforced on April 1, 2020.

IThe procedures for compulsory execution of a court order to return a child were amended to further ensure their effectiveness. For instance, the amended Implementation Act has made execution by substitute possible without passing through indirect execution under certain conditions, while the previous Implementation Act made indirect execution mandatory before execution by substitute. In addition, the amended Implementation Act has made release of a child possible even when the child is not with an obligor who is obligated to pass over and return the child, while the previous Implementation Act made release of the child possible only when the child was with the obligor (provided, however, that the presence of an obligee in principle is necessary).

(2) Date of Enforcement etc.

(a) Date of Promulgation: June 19, 2013（Act No.48 of 2013)
(b) Date of Enforcement: when the Convention takes effect in Japan (April 1, 2014)
(c) Amendment: April I, 2020 (enforced), May 17,2019 (promulgated, Act No.2 of 2019)

(3) Text of the Implementation Act

（4）Major points of the Implementation Act and its amendment

(a) Outline of the amendment
- Japanese (PDF)
- English (PDF)
(b) Outline of the Implementation Act

Structure of the Implementation Act

Major Articles in Focus

Designation of the Central Authority and its Competencies

Designation of the Central Authority Article 3
Assistance in Child’s Return to Foreign State
Application Article 4
Discovery of the Whereabouts of the Child Article 5
Decision on Assistance and Dismissal of Application Articles 6 and 7
Facilitation of Return of Child upon Agreement Article 9
Assistance in Child’s Return to Japan
Decision on Assistance and Dismissal of Application Articles 12 and 13
Exchange of Information relating to Social Background of Child Article 15
Assistance in Visitation or Contacts with Child in Japan Article 16 onwards
Decision on Assistance and Dismissal of Application Articles 17 and 18
Visitation or Contacts with Child in Foreign State Article 21 onwards
Decision on Assistance and Dismissal of Application Articles 22 and 23

Necessary Procedures for Case Seeking Return of Child

Jurisdiction
A case seeking the return concentrated in the Tokyo and Osaka Family Courts Article 32
Case relating to Return of Child
List of Grounds on which Return of the Child might be Refused Article 28
Prescription of System of the Ne Exeat Order Article 122
The Court etc.
Final Order Articles 91 - 94
Conciliation Article 144
Settlement Article 100
Appeal Article 101
Execution Procedure
Use of Indirect Compulsory Execution such as Execution by Substitute of Return of Child Article 134

Cases which the Act applies to

Supplementary Provision Article 2
This Act does not apply to wrongful removals or retentions committed before its enforcement date.

The Hague Convention (Convention on the Civil Aspects of International Child Abduction)