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Top court decision on child taken by mom calls for re-evaluation of Hague Convention law

The Supreme Court's Hague Convention-based decision on March 15 to overturn a ruling blocking the return of a 13-year-old boy from his mother in Japan to his father in the United States was arguably intended to prevent a prolonged custody battle between the parents.

Professor Kazuhiko Yamamoto of Hitotsubashi University, who is an expert on the procedures of the Hague Convention on the Civil Aspects of International Child Abduction, says, "As a result of the (Supreme Court's) ruling, it can be expected that the parents' custody battle will be resolved early through mediation and settlements. It has been pointed out that orders to return children (under a Japanese law concerning the convention) are not being sufficiently fulfilled, so it can be said that this latest decision is a hint that the system needs to be re-evaluated."

According to the Ministry of Foreign Affairs, as of February 2018 there had been 23 cases in Japan of a parent being ordered to return a child in accordance with the domestic law. In six of these cases, the orders reached the stage of compulsory execution but they did not proceed further due to parental resistance.

Those refusing to comply with a ruling involving a habeas corpus appeal can be fined or sentenced to up to two years in prison.

As has been observed with the parties caught up in this case in which two separate suits have been filed -- the first based on the Japanese law concerning the Hague Convention and the second a habeas corpus appeal -- court procedures impose a heavy burden on those involved. There has also been criticism among lawyers that the execution procedures stipulated under the law are "too rigid."

The current state of affairs calls for further discussion on how to resolve endless custody battles between parents, while maximizing the benefits for any children involved.

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