Empirical insights on how the 1980 and 1996 Conventions

work in practice

Macau25 June 2015Mikiko Otani

Status of the three Hague Children’s Conventions in Japan as of 25 June 2015

• 1980 Child Abduction ConventionContracting State since 01 April 2015

• 1993 Intercountry Adoption ConventionNon-Contracting State

• 1996 Child Protection ConventionNon-Contracting State

2

What would be next after the first year practice of the 1980 Convention?

• Still too busy for the 1980 Convention?• Too early to discuss the 1996 Convention after only one

year experience of the 1980 Convention?• 1993 Intercountry Adoption Convention first?

First year experiences already indicate the value of the 1996 Convention.The 1996 Convention will fill the gap.

3

First year experience of 1980 Convention in Japan – some observations relevant to 1996 Convention

Outgoing return cases• Little attention to outgoing cases before the 1980 Convention

entered into force• Outcome of the 1980 Convention cases started with outgoing

return cases in the first year• Mixed reaction of the parties and lawyers – better understanding

of the merit and limitation of the 1980 ConventionReturn of the child is not necessarily the resolution of the

custody disputes.Parents are left with continuing custody disputes often in

two jurisdictions and so much of uncertainty and anxiety.4

First year experience of 1980 Convention in Japan – some observations relevant to 1996 Convention

cont’d

Incoming return cases• Recognition of the importance of interim contact

arrangement for the left behind parent while the return application is pending• Interim contact arrangement by agreement • Interim contact order – jurisdiction of the court?

What is the jurisdictional basis for the court of the country where the child was taken? – no clarity

5

The 1996 Convention fills the gap

• The 1996 Convention gives parents and lawyers clear ideas about “post return cases under the 1980 Convention.”• The 1996 Convention gives the courts and other

authorities the clear guidance on when they can and should exercise jurisdictions for the protection of the child.

6

How to promote The 1996 Convention in the Asia-Pacific region• Raise awareness of the value and importance of the 1996

Convention in relation to the practice of the 1980 Convention• Collaboration with other global child protection entities

UN Committee on the Rights of the ChildUNICEF

• Collaboration with regional governmental mechanisms and non-governmental organizations

ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC)

South Asian Association for Regional Cooperation (SAARC)LAWASIA (Law Association for Asia and Pacific)

7

LAWASIA Declaration on Children’s Rights and LAWASIA Siem Reap Principles adopted in 2011

LAWASIA Siem Ream Principles8. All nation-states in the region that are not signatories to the three Hague Conventions as they relate to children, specifically the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, the Hague Convention on the Civil Aspects of International Child Abduction and the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance should make efforts towards becoming signatories and uphold the principles and rights contained therein. 8

Mikiko OtaniAttorney at law

Toranomon Law and Economic OfficesToranomon Hoso Bldg. 9F, 1-20-3 Nishi Shinbashi

Minato-ku, Tokyo, 105-0003, JapanTEL +81-3-5501-2090 FAX +81-3-5501-2080

Email motani2@nifty.com

9