Recently South Korea has acceded to a number of international conventions covering children’s rights, adoption issues and international child abduction. In March the U.N. convention on child abduction was signed and in May the convention on international adoption. And yet despite all of this seeming advancement, the decisions of the South Korean judiciary still must meet international standards required before these treaties will be effective in practice.
This is because all of these treaties have exceptions that apply when the domestic judicial system of a country fails to live up to international standards. For South Korea the problem is that underlying many judicial decisions and even the government’s push for these treaties is the outdated belief in the superiority of Korean ethnicity. Thus the government announced its preference that ethnic Koreans adopt Korean children, even internationally. This sort of racial preference in child rearing has been demonstrated again and again to be without basis.
While many educated South Koreans no longer adhere to these outdated concepts, the government itself in announcing accession to many of these treaties has repeatedly stated a bias toward Korean nationals and against those who are not ethnic Koreans. If the courts follow the government’s lead then this unfortunate bias may have the effect that these new treaties will only benefit foreigners and not the ethnic Koreans the government believes they are protecting.
This ironic result occurs because the exceptions to many of these treaties are based on whether the domestic courts of a member nation have followed international norms in decision making. For example, the treaty on international child abduction would, for South Korea, swallow the rule. Generally the convention is quite favorable to the courts of a member nation as it provides for a return of children taken in violation of custodial orders of a member nation.
For South Korea this would mean that children subject to a custody order in South Korea that are taken to a fellow convention nation should be returned to South Korea. While at the outset this seems advantageous for South Korea, the problem lies in the exceptions contained within the treaty. These exceptions apply to cases where children are subject to psychological or physical abuse, where the human rights of a child are violated or where the best interests of the child are not addressed and the child is of sufficient maturity to testify.
Unfortunately, if South Korean courts base their decisions on outdated concepts of racial bias, then in almost all cases where mixed children are taken to the foreign parent’s home country at least one if not all of the above will apply. In order to avoid this result, the South Korean judiciary will be obliged to make bona fide inquiries into child custody arrangements in divorces between international couples. Unfortunately, at the present time the South Korean judiciary routinely ignores or discounts the abilities of the foreign parent and will grant sole custody to the Korean parent regardless of issues of education, background, child abuse or even basic parental ability.
A further shame is that courts have occasionally betrayed their racial bias in statements made in open court. Judges practicing in the countryside have directly questioned the ability of Southeast Asian parents to even raise children. This racial bias means that in such cases the South Korean court decisions will rarely be honored by foreign courts.
Even more worrisome is that the South Korean court has been known to ignore the abusive practices of the Korean parent. These courts often chalk up such practices to the Korean cultural belief that parents should be free to punish their children however they see fit. Thus severe child abuse ranging from psychologically coercive threats to bruised faces and bodies are ignored even when there is video evidence or reliable child testimony.
Finally, in most Western countries threats made against the lives of ex-spouses and their new families are considered severe and can radically alter child custody decisions. Unfortunately, such threats are too often discounted in South Korea. Here it is not just the courts but the police and the prosecutorial service who regard such threats as merely a result of the high passion of the Korean people. However, taking such threats seriously is a necessary step before South Korean court decisions will be honored by foreign courts.
The only cure for this problem is the remedy of time and education of the judiciary. As more and more of these disputes reach international arbitration and foreign courts, any failure to follow international norms for protecting the rights of children and non-ethnic Korean parents will be exposed. Perhaps if enough foreign courts use the exceptions contained within these international conventions to disregarded South Korean judicial decisions the judges, police and prosecutors of South Korea will realize that in order for South Korea to truly become an advanced nation, they must lead the way.
By Daniel Fiedler
Daniel Fiedler has been a professor of law in South Korea since 2006 and a licensed attorney in California since 2000 and Arizona since 1998. ― Ed.
