How to make the Hague Treaty retroactive in Japan ?

[Bill MacDonald]

Hi....I am brand new to this forum/site. My son, Kaito, was abducted by my ex-wife to Japan almost 6 years ago, and needless to say, life has pretty much been a living hell since. This is my concern: although it is inspiring news that Japan may sign the Hague Treaty, it is my understanding that it won't be retroactive, meaning abductions that took place before the Treaty is signed won't be dealt with. This, of course, means I'll still never get to see my son.
  Why on earth is the Treaty not retroactive ? What can we do about this ? Is there any movement/pressure to make the Treaty retroactive

[SageDad]

Hi Bill,

I am sorry to learn of your son's abduction.  I know how hard that is. 

You are correct that the treaty is not retroactive, but there is a great deal of pressure on Japan right now to make a plan that addresses children that have been abducted to Japan prior to them signing the treaty.  I'm not sure if anything will come of that pressure but it is a distinct possibility.

Furthermore, there are really two ways the Hague treaty may be applied.  The first, and most well known, is to request the return of an abducted child.  Unfortunately I doubt the Hague Convention would be of much utility to you in requesting your son's return at this point even if it were made retroactive.  The problem is that, since it has been six years, they would likely decide that your son is already adjusted to his new life in Japan and that it would be cruel to return him to Canada.  The good news though is that there is a second way to use the Hague Convention that should help you.  The Hague Convention also requires that foreign parents be able to have access to their children even if they are not returned.  Which means, once Japan signs the Hague Convention you should be able to use it to request visitation with your son even if you can't use it to request he be returned to Canada.

[Bill MacDonald]

Carlos...thank you for your reply. Yes, I have often thought that it would be unfair to take my son away from Japan, away from everyone and everything he knows. It would be traumatizing, and I would not do it. All I want is to be able to be in his life, to let him know he has a father who loves him. To be able to visit him on a regular basis, write him letters, talk with him on the phone, send him toys. I want him to know he has grandparents, cousins and uncles in Canada who love him very much and miss him.
  Why my wife chose abduction is a mystery to me. If she wanted to divorce me, I would have let his home be Japan (since she carried him in her tummy for 9 months, birthed him and breast fed him). I just want to be his father, to give him everything I can. If I missed him too much, I would have moved to Japan and pursued my career there. But now he will grow up missing that special bond that fathers and sons have. Why would she do that to her son ? When I had the chance to confront her (on the phone) she simply said that she was selfish and she planned it all along. When I tell people this, they think I should just accept it. Of course, these were people who didn't have children themselves, and obviously don't understand the pain in never seeing your child again. I fear what she is telling him about me, and I fear that I will never see him again. But if the Hague Treaty allows me to see my son again, even if it is in Japan, I will be over the moon with joy !!!!
Sincerely,
Bill

[pptoland]

Bill,  Yes, you can do an access request under the Hague.  Many parents are planning to pursue this.  Unfortunately, Japan's definition of access is probably quite different than ours, and might consist of a one hour visit at a public restaurant annually.  The Hague is NOT retroactive, but the 8 Ambassadors (US, Canada, UK, Australia, etc.) are simulataneously working with Japanese officials to find an alternate methodology for resolving current abduction cases.  Paul

[KarlHindle]

I think this is raising a general practice issue with the Hague - there is a clear intent and explicit language within the HC so that it seeks to protect access rights, however issuing a art.21 application frequently results in no hearing on that issue in federal or composite jurisdictions.

For instance, in the US a federal court will not hear the application, or at least act upon it because access is treated firmly as a matter to be determined by the State which is considered to hold or has acquired jurisdiction, and family rights are the purview of States Rights which a Federal court will not touch.

I recall a Swiss case where the LBP acquiesced in the children being raised in that country (I think they had been abducted from Australia or New Zealand), subsequently the father won access rights under the domestic legal process, but failed to obtain any effective enforcement and had a s21 application struck out on the basis he already had the rights under the domestic process. 

Circular logic and a Catch-22 situation - the rights are there (but unenforced) and the HC is not observed either.