Will the child abduction treaty become more "Asian"? A first look at the efforts of Singapore and Japan to implement the Hague Convention.

• Author: Jones, Colin P.A.

1. Overview

   The Hague Convention on the Civil Aspects of International Child Abduction (1) (the "Convention") provides a mechanism for locating and returning children "wrongfully" removed from or retained outside of their jurisdiction of habitual residence, a problem that most commonly arises in the breakdown of an "international" marriage. The Convention seeks to protect the welfare of the children involved by deterring and remedying unilateral action by one parent. Put simply, the treaty is based on the assumption that the interests of children should be evaluated by courts in the jurisdiction where they have been residing, rather than the one in which they may have just gotten off a plane. As noted in one early gloss,

   the problem with which the Convention deals--together with all the drama implicit in the fact that it is concerned with the protection of children in international relations--derives all of its legal importance from the possibility of individuals establishing legal and jurisdictional links which are more or less artificial. In fact, resorting to this expedient, an individual can change the applicable law and obtain a [favorable] judicial decision.... (2) In order to protect disruptions to the lives of children by preventing this type of forum shopping, the Convention "places at the head of its objectives the restoration of the status quo, by means of 'the prompt return of children wrongfully removed to or retained in any Contracting State.'" (3)

   A country that joins the Convention commits to establishing a central authority to facilitate the return of abducted children and providing a prompt judicial process for realizing their return. (4) In principle, a return must be ordered if a child has been removed in violation of "rights of custody" in the child's jurisdiction of habitual residence if those rights were being exercised at the time of removal. (5) Under the Convention, parties must also facilitate the exercise of rights of access between contracting states. (6) Most academic and professional interest in the treaty, however, appears focused on rights of custody and the return process, as will be the case in this article too.

   A map of the world showing Convention ratifying nations as of the end of the first decade of the 21st century would portray a very "Western" treaty regime. (7) At the time of writing, virtually every country and territory in Europe, North and South America as well as Australia and New Zealand had ratified the Convention. (8) By contrast only a handful of African nations had done so. (9) Asian countries seem particularly under-represented, given their importance in terms of population and economic development. Of the small number of Asian jurisdictions that were parties to the Convention as of 2009, two (Hong Kong and Macao) achieved their contracting status due to colonial legacies. (10) The two other Asian "early adopters"--Sri Lanka and Thailand (acceding in 2001 and 2002)--are still both developing nations that have not yet been able to establish treaty relations with all of the other parties. (11)

   Having acceded in 2010, (12) Singapore could be described as the first "advanced" or "developed" Asian nation to have independently joined the Convention. It was followed by Korea in 2012 and Japan in 2014. (13) Japan's ratification comes after years of high-level lobbying by Western governments and media condemnation of its status as a "black hole" for parental child abduction from which no child has ever been returned through the Japanese judicial process. (14)

   With more countries in Asia joining the Convention the time may be ripe to consider whether they will cause it to become more "Asian" (whatever that means) in the way it is implemented and interpreted. This article will briefly compare and contrast the implementation regimes of Japan and Singapore as well as the relevant features of the two country's family law systems before suggesting a preliminary, highly tentative conclusion.

2. JAPAN AND SINGAPORE COMPARED AND CONTRASTED

   Japan is one of Asia's largest countries in terms of both GDP (almost $6 trillion) and population (almost 128 million as of 2010). (15) Compared to many neighboring countries its population is highly heterogeneous in terms of ethnicity, country of birth, language, educational background, and other elements of cultural identity. (16) The Japanese practice a variety of religions including various forms of Buddhism, Shintoism, and Christianity, all of which coexist peacefully. (17) Such minority populations as do exist in Japan represent a very small percentage of the population overall. (18)

   Of the 700,214 marriages recorded in Japan in 2010, 30,207 (4 percent) were between Japanese and foreign nationals. (19) Of the 1.071 million children born in that year, almost 21,966 (2 percent) were born in households with one non Japanese parent. (20) In total, 252,617 children in Japan experienced the divorce of their parents in 2010. (21) Of 251,378 divorces in the same year, 18,968 (7.5 percent) were "international," with one spouse being non-Japanese. (22) As these statistics make clear, most instances of divorce or other forms of parental separation in Japan are strictly "domestic," with those involving a non-Japanese spouse or parent being a very small minority.

   Although economically Japan's peer--the seventh richest country in the world on a GDP per capita basis--Singapore is quite small in terms of territory (697 [km.sup.2]) and population (5.46 million in 2013). (23) Furthermore for historical reasons it is demographically more complex than Japan, with an ethnic Chinese majority (approximately 74.2 percent) as well as significant minorities of Malay and Indian extraction (13.3 percent and 9.2 percent respectively). (24) This complexity is reflected in the nation's four official languages (English, Mandarin, Malay, and Tamil). (25) Singapore's culture also encompasses a variety of very different religious traditions and includes a significant Muslim community for which a formally recognized separate system of family justice exists, as discussed later. (26)

   As a center of international business and finance, a significant proportion of Singapore's population consists of transient "expats" and other categories of temporary workers. (27) Of Singapore's population of almost 5.4 million in 2013, 3.31 million were citizens and a further 0.53 million were permanent residents. (28) The remaining 1.55 million--28 per cent of the total--were classified as "non-residents," a category comprising foreigners working, studying, or living in Singapore but not having permanent residence (and excluding tourists and short- term visitors). (29)

   In 2012 Singapore recorded 27,936 marriages and 7,237 divorces and annulments. (30) Twenty-one percent of marriages (31) and 12.9 percent of divorces in that year were characterized as "inter-ethnic". (32) The same year saw 42,663 live births. (33) Of the marriages in 2011, a full 39.4 percent were between a Singaporean citizen and a non-citizen, with 31.1 percent of children being born to such couples. (34)

   Because of the demographic complexity of its population and families, Singapore courts are well-acquainted with cases involving an international component. In fact, CX v CY (discussed later), one of the Singapore Court of Appeal's most important custody cases, involved a dispute between a father, a Dutch national, and a mother, a Singapore national. (35)

   In connection with the Convention, Singapore may prove to be special in primarily being a source of outbound cases. As of March 2013, Singapore's Central Authority had dealt with four outbound cases against one inbound. (36) This ratio is consistent with research by Professor Debbie Ong on pre-Convention international cases, which identified twenty-two outbound cases to only four inbound. (37) By May of 2013, Singapore's High Court had decided an appeal in the first litigated instance of a return order, the case of BDU v BDT, which is discussed in more detail below. (38)

   At the time of writing, Japan had ratified the Convention with the implementing legislation (discussed below) going into effect April 1, 2014. (39) At least one pre-ratification legislative analysis of the Convention points out that most outbound cases from Japan would likely involve Asian wives of Japanese men returning to their home countries (i.e., non-signatory states such as China or the Philippines), cases in which Japan's status as a party would be of little benefit. (40)

3. RIGHTS OF CUSTODY IN JAPAN AND SINGAPORE

   Having explored the statistics, let us turn to law. Under the Convention, an abduction or retention is "wrongful" (and therefore likely subject to return proceedings) if it is "in breach of rights of custody" in the child's country of habitual residence, if such rights were being exercised at the time. (41) This section will focus on trying to develop an understanding of what "rights of custody" might mean within the context of Japanese and Singaporean family law.

   1. Japan: Parental Authority and the Family Register System

      1. The Family Register System

         Before discussing concepts such as "custody" it is necessary to first understand a system that forms the basic framework of Japanese family law, the koseki seido or family (or "household") registration system--a nationwide register of family units.42 Unlike many countries where an official document certifying a particular event (e.g., a birth or marriage certificate or court decree) is used as evidence of a legally-significant family relationship, in Japan this would be established by submitting an official extract of the family register instead. (43) Rather than merely being a record of a specific event, the family register presents a snapshot of familial relationships at the time the extract was produced. (44) It thus shows not only a marriage and the birth of children, but a subsequent divorce as well. An extract will thus...