Japan and Morocco are quite similar in some ways. Morroco took some steps recently to become a Hague signatory. It would be wise if Japan followed their lead. Of the 146,408 divorces in Japan in 2009, only 3.6% involved both parents taking part in child rearing. Japan’s system seems to favor sole-custody, but Morocco had a very similar system that valued one parent, usually the mother, under Shari’a law. Although Morocco allowed the father to make important decisions about the child, such as where the mother and child could live and whether the child could travel abroad, all decisions regarding daily functions and routine care were left to the mother, essentially creating a sole custody system, similar to that of Japan. Both systems included matrifocal tendencies. While Japan’s Civil Code typically breaks custody into shinken and kangoken, the Moroccan Code of Personal Status similarly divides custody into hadana and wilaya. Morocco successfully uprooted its custody system and allowed joint responsibility to be established among parents, as one parent was given hadana and the other wilaya. In Japan, the same ideology should be adopted. Instead of granting one parent parental rights and physical custody, efforts should be made to grant shinken to one parent and kangoken to the other to allow for increased responsibility for both parents and bring about an understanding of joint custody.
Second, Japanese courts, or the Japanese Diet, need to establish visita- tion as a fundamental right. One of the key reforms Morocco made to join the Hague Convention was to establish visitation rights. However, these rights were already inherent within the Moroccan system as such meas- ures were implied when Moroccan mothers were prohibited from moving away from the father so that the father could have access to the child. Similarly, in Japan, an understanding of the psychological benefits of visitation on the child is already taking root. Courts have even granted visitation rights in some cases, but have made the rights extremely limited. It is time for Japan to push this notion and make visitation rights funda- mental within the constitutional system.
Third, Japan needs to dissolve its current registration system, or at the very least, modify the system. Allowing a child to be taken off a father’s register when a mother changes her name after divorce, resulting in the loss of parental rights for the father, is abhorrent. The registration system should be discarded completely or altered so that the child’s name will remain under both parents’ registers, regardless of the marital status of the parents. Such changes will bring Japan one step closer psychologically to joint parental responsibility.
Fourth, in order to comply with the Hague Convention, services must be available to ensure the return of children to their habitual place of residence. Like Morocco, Japan should implement law enforcement mechanisms to find abducted children and return the children safely. Fortunately Article 226 of the Japanese Penal Code is already in effect to return abducted children. The Japanese government needs to force Japanese law enforcement officers to comply with Article 226 to ensure abducted children are returned home.
Lastly, before signing the Hague Convention, Morocco entered into specific bilateral agreements to resolve familial disputes with neighboring countries to promote collaboration and global cooperation. In an effort to ease global tension, Japan would be strongly urged to do the same with the United States, the United Kingdom, France and Canada, as these four countries have repeatedly called on Japan to increase efforts to prevent parental abduction.
To read the full article click: Hague Moracco vs. Japan
February 22, 2013
Japan PM Abe Promises Hague Accession, but Leaves Kidnapped U.S. Children Held in Japan
WASHINGTON, D.C.–Japanese Prime Minister Shinzo Abe has arrived in Washington
for a four-day summit with President Obama, bearing yet another promise that Japan will
accede to the Hague Convention on International Child Abduction. For 30 years,
Japanese officials have said they have been “studying the Hague”. While Japan
studied, one FBI agent estimated in 2009 that 20,000 American children have been
kidnapped from U.S. soil and taken to Japan. Even if Japan finally fulfills its public
promises to sign the Hague, the Treaty will only represent a prevention framework for
future cases. There has been no mention of remedy for, and the Hague will not apply
retroactively to existing cases. In spite of intensely negative press, Congressional
legislation, and several joint demarches in recent years by 10 or more countries
condemning Japan’s apparent policy of state-sanctioned kidnapping, Japan has not yet
acted to remedy any of the long record of existing criminal abductions, or prevent future
abductions of children by its nationals.
Per capita and in real numbers, Japan, a G7 nation, owns the ignominious ranking of #2
in the world in the crime of international child kidnapping, behind Mexico and ahead of
India. Unlike the developing countries of Somalia, Egypt, and Saudi Arabia, Japan has
never returned a kidnapped child to the U.S. or any other country, through direct legal
or diplomatic means. Over the same 30 years, the only American child ever returned
from an illegal kidnapping to Japan, is Wisconsin native Karina Garcia. Today, Japan’s
Ministry of Foreign Affairs continues efforts to subvert the U.S. law and jurisdiction
governing Karina’s custody. Both U.S. and Japanese courts had previously awarded full
custody to her father, Dr. Moises Garcia.
American parents of children kidnapped from the U.S. to Japan believe there is much
Japan must rectify. In U.S.-to-Japan child kidnappings, Japanese nationals intentionally
broke the law in America and directly defied, with pre-meditation and malice, U.S. court
custody and passport surrender orders, issued under proper U.S. jurisdiction. The
abductors frequently enlisted the assistance of organized crime elements in the
planning and execution of the crimes. Worse, MOFA officials in Japan’s U.S.
Consulates encourage law breaking on their own websites and assist in the crimes
through dubious and unilateral issuance of Japanese passports for U.S. citizen children,
who at the time of their kidnappings were not also citizens of Japan. Upon the
kidnappers’ arrival in Japan at the conclusion of the crimes, the Japanese government
unlawfully claims jurisdiction over the children. When American parents fight back by
seeking the help of the U.S. government, Japan’s government counters by employing
well-paid American lobbyists, lawyers, and agents to lobby Congress and work against
legislation intended to assist the kidnapped American children and U.S. law
enforcement. Routinely, and with no supporting evidence, Japanese officials or
affiliated spokespersons falsely claim that Japanese parents kidnapped the children to
flee abuse, a charge that U.S. parents find deeply offensive, libelous, and damaging to
the children. Global Future condemns all perpetrators of violence and abuse in the
home, regardless of their gender, nationality, or race.
The Japanese government’s apparent endorsement of this set of belligerent actions
reflects poorly on Japan’s image worldwide. Abe, by visiting the U.S., is now in
position to answer for it. Japan’s record of stripping defenseless American children of
their U.S. Constitutional rights raises serious questions about Japan’s true intentions
and worthiness as an ally. When one of our best allies subverts our sovereignty, aids
and abets in the criminal kidnapping and illegal retention of defenseless American
children, outrageously claims jurisdiction over the children after the unlawful acts,
causes lifelong damage to the children and then alienates them by smearing their
parents with false accusations, and employs paid agents to run interference against the
American children and their parents, how much can this supposed ally really be trusted
in any subject of mutual interest? Where is the reciprocity, shared values, and mutual
respect for the rule of law?
Time is the enemy of all of these children. Wrongfully held children in Japan just grow
older and more alienated from their American families, society, culture, and their US civil
and constitutional rights. These mixed race children represent the future of the U.S.-
Japan alliance. They represent the best bridges between our two countries, societies,
and cultures. They need to be protected, cherished, and allowed to thrive. Forcibly
separated from one half of their families, restricted from one parent’s love, care,
guidance, and protection, and brainwashed against them, these children are destined to
Recent events in the China Sea, and in North Korea call us to consider how we will fulfill
our obligations in the alliance on behalf of Japan. Should we really send our service men
and women into harm’s way to protect Japan from Chinese or North Korean threats, if
we can’t trust Japan to rectify the kidnappings of American children for which it is
Through his work on the issue of the abduction of Japanese by North Korea while a
cabinet official under then-Prime Minister Koizumi, Abe knows very well the
devastating effects of abduction. He also knows that North Korea returned surviving
abduction victims to Japan. Abe could likewise rectify the criminal and destructive
behavior of Japanese nationals by returning the kidnapped children to the U.S. and
allowing them to have both parents again, as both parents originally agreed to before
U.S. judges, in U.S. courts of law. We hope Abe will see the long-term benefit to the
alliance of returning the kidnapped children to U.S. He can make a concrete offer to
Obama now regarding open abduction cases, while staying on course to accede to the
Hague. By doing so, he will deepen the alliance, on a basis of mutual respect, trust,
shared values, and family connections.
P.O. Box 861892 Los Angeles, CA 90086 Phone: (213) 392-5872
Global Future advocates for every child’s right to two loving parents.
Contact: Patrick Braden, (213) 392-5872 Global.Future@yahoo.com
Scott Sawyer, (323) 877-9185 email@example.com
Dr. Garcia`s daughter was returned to him (from Japan) in December of 2011. It was a wonderful Christmas present for him. Univision just released a story about Garcia`s fight to get his daughter back. His is the only case of a child being returned (from Japan) through legal means to the country of habitual residence. Click on the link to watch the story (in Spanish).Read Full Post | Make a Comment ( None so far )
I am a bit confused. Two articles came out on the same day. Three articles in the last 3 days. One says Hague on fast track, another say Japan will join the treaty, and the third says treaty is not a priority. It seems clear that politicians and bureaucrats are not on the same page and nothing is going to happen in the next diet session. Japan has been saying for over 10 years they will sign the Hague. There are still a large number of lawyers that disagree about signing the Hague. I don’t think this treaty will be signed until there is an overwhelming consensus that it is a good thing. Click on the links to read the full articles.
Hague treaty not priority, past bill needs study: Tanigaki
Japan says it will join child abduction treatyRead Full Post | Make a Comment ( None so far )
Child custody injustices hard to fix Joining Hague may curb parental abductions if legal mindset evolves
Friday, Jan. 4, 2013
By MASAMI ITO
On May 6, 2010, Yasuyuki Watanabe, an internal affairs ministry bureaucrat, came home to find his wife and 2-year old daughter gone, along with their clothes.
Playing catchup: Yasuyuki Watanabe, deputy mayor of Nasushiobara, Tochigi Prefecture, speaks during an interview at a Tokyo hotel on Dec. 11. SATOKO KAWASAKI
His wife had spirited away their daughter near the end of Golden Week, just days after he was enjoying the holidays taking her on hikes and to local festivals, recalled Watanabe, 40, now deputy mayor of Nasushiobara, Tochigi Prefecture. He recounted how he carried his daughter on his back and how they sang songs together until she fell asleep, snuggling against him.
His world was turned upside down that fateful day. Last month she turned 5.
“It is so important for children to feel loved by both parents, especially when they are growing up, and I think that my daughter feels abandoned by me, that I left her because I didn’t love her anymore,” Watanabe told The Japan Times during a recent interview in Tokyo. “The most painful thing about my situation is when I think about how my daughter must be feeling.”
Watanabe is one of many parents in Japan who have been torn away from their children after a falling-out with their spouse in a nation that grants only sole custody, usually to the mother, and where it is customary for parents not living with their offspring, to have little, if any, contact with them.
This has also been a widely reported harsh reality for foreign parents, including those living overseas whose children have been taken to Japan by estranged Japanese spouses.
These so-called parental child abductions are behind growing calls for Japan to join the international Hague treaty to prevent such cross-border kidnappings.
“These two problems are actually closely related because the domestic and international situation is the same — your children are abducted one day out of the blue and you are forbidden from seeing them,” Watanabe said.
For Watanabe, what followed was a long legal battle with his wife, and divorce proceedings, which continue.
Initially his wife let him see their daughter a few times, but that stopped abruptly when he was slapped with domestic violence charges — which he branded a lie.
His wife alleged he had threatened her with a large pair of scissors while she was pregnant and told her he knew yakuza who would be willing to help him out with the situation by pushing her off a station platform in front of a train. The violence charges were later dropped.
“There is nothing more terrifying than receiving an order to appear before the court over ‘DV’ allegations. I was completely distraught. The judge, however, recognized that much of her claims were questionable and warned she could be charged with false accusations, so she dropped the charges the day before the ruling was to be made,” Watanabe said.
But his wife then filed a lawsuit, demanding custody of their child and, again, adding allegations of abuse.
Last February, presiding Judge Tatsushige Wakabayashi at the Chiba Family Court granted Watanabe’s ex-wife custody of their daughter from the viewpoint of “continuity,” ruled that Watanabe had committed domestic violence and rejected his demand that his daughter be returned. The Supreme Court finalized the ruling in September.
While his legal battles dragged on, Watanabe asked lawmakers to address the issue and his case was deliberated on in the Diet.
Given his public profile, Watanabe originally wished to remain anonymous. But to garner public support for his situation, he recently came forward to tell his story to the press.
“I’ve been labeled a DV husband, and the judge completely ignored the facts and the law in my case. I had no choice but to stand up and fight,” he said.
Watanabe has solicited the help of a special group of lawmakers who are trying to get Judge Wakabayashi fired from the bench. Among the so-called left-behind parents in Japan, Wakabayashi has spurred widespread ire, especially when in 2011, he criticized then-Justice Minister Satsuki Eda for telling the Diet that priority should be placed on the welfare of the child rather than the “principle of continuity.”
“There are many people in similar situations. I cannot give up for their sake. It is not just about me and my daughter. This is a battle for all children and their parents,” Watanabe said.
According to data compiled by family courts, there were 409 parents seeking the return of their offspring from an estranged spouse in 2001, whereas by 2011, there were 1,985 parents seeking to get their kids back. The numbers, however, reflect only the legal cases filed by left-behind parents that were officially accepted by the nation’s family courts. Experts speculate they constitute only the tip of the iceberg.
Masayuki Tanamura, a professor of family law at Waseda University, said various factors are behind the increase in parental child abductions, including Japan’s sole custody principle and the current legal framework that generally grants that right to mothers.
“Times have changed — fathers are more involved in child-rearing, and the legal system — including the principle of sole custody — makes battles over children more likely to happen. I think this part of Japan’s legal system is outdated,” Tanamura said.
One major difference that makes Japan’s legal system peculiar is that when an estranged spouse initially takes a child, it isn’t considered a crime. This is because it is common for an estranged parent, generally the mother, to take the children to her parents’ domicile if a divorce is being contemplated.
But if the left-behind parent then subsequently tries to retrieve the offspring spirited away from their home, the action is considered kidnapping. Tanamura claimed there are many cases in which parents who spirit offspring away are unaware such action could be construed as abduction. From their point of view, they are merely considering a divorce or fleeing an abusive environment.
“It is hard to label all parental kidnappings as illegal . . . but at the same time, there are many cases that could constitute a double standard. It’s OK for mothers to first take the children away, but when the fathers try to get them back, this is illegal,” Tanamura said. “This is based on the longtime concept that children belong with their mothers.”
To prevent children from losing access to both parents after a separation, Article 766 of the Civil Law was revised in 2011 to specify that visitation rights, child-support payments and other matters be determined during nonlitigated divorce proceedings, and that the welfare of the child be considered first.
But even this change can’t help people like Watanabe because his case was ruled on after the amendment. “The aim of the revision is to promote forming agreements (over child care) when getting a divorce. But there is nothing that guarantees compliance,” Tanamura said.
Tanamura and other experts thus agree that if and when Japan signs the 1980 Hague Convention on the Civil Aspects of International Child Abduction, it must at the same time institute fundamental changes in the legal system, and the public mindset must also be overhauled, or joining the convention will lead to naught.
John Gomez, chairman of the recently founded Kizuna Child-Parent Reunion, a group of Japanese and non-Japanese parents, friends and supporters advocating the right of children to have access to both parents, emphasized the need for left-behinds to cooperate because simply joining the Hague Convention will not solve anything in Japan if it continues to take a one-sided approach to domestic custodial rights.
“The problem of international cases and in-country cases has the same root cause — Japanese family law and the courts,” Gomez said.
“The abduction issue affects all people in Japan — mothers as well as fathers, Japanese as well as non-Japanese.”
The Hague treaty aims for the swift return of children wrongfully taken out of the country of their “habitual residence” by a parent to prevent cross-border parental kidnappings. Of the Group of Eight countries, Japan is the only nation yet to sign the convention.
Japan has been under pressure from member states, including the United States, the United Kingdom and Canada, to join the convention, but it has been reluctant, given strong domestic opposition, especially from Japanese mothers who claim they fled to Japan with their children to protect themselves from abusive ex-spouses.
Facing severe criticism from the international community, however, Japan finally reached the point of submitting a bid to sign the treaty and Hague-related legislation to the Diet during the last session presided over by Prime Minister Yoshihiko Noda’s Democratic Party of Japan. But the politicians instead spent most of their time bickering over internal power struggles related to other domestic issues, pushing the Hague Convention to the sidelines once again.
And it remains unclear whether the issue will move forward under the new government led by the Liberal Democratic Party.
Government officials have expressed confidence that once deliberations begin, the Hague bid will be approved by the Diet. But parents, including Gomez, a longtime Japan resident who himself is separated from his Japanese wife and is having difficulty seeing his daughter, say joining the Hague treaty is only a step in the right direction, not a silver bullet.
Gomez explained that on the legal front, parental kidnappings must be stopped, visitation rights made enforceable and the idea of joint custody introduced. But he added that public awareness must also be raised at the same time so the public understands the benefits of the changes to ensure the rules are followed.
“The Hague is only one tool. The ultimate goal for us is a social and legal transformation of Japan . . . a complete transformation in terms of mindset and practice,” Gomez said. “We firmly believe, Japanese and non-Japanese alike, that the social and legal transformation is for the betterment of Japanese society and children and improvement in the quality of life.”
Bryan McGlothin is working on a documentary about parental abduction. Bryan was abducted by his father when he was 2 years. His father moved around to prevent Bryan’s mother from finding him. Bryan was told (by his father) that his mother did not love him and did not want to be in his life. When Bryan became an adult and escaped his father’s grip he began searching for his mothers grave, since his father told him that his mother had died. Instead of finding his mother’s grave, he found his mother. But it was not the fairy tale story that everyone hopes for. You can read his book or listen to his interview on Family Matters Blog Talk Radio with Jill Egizii the president of Parental Alienation Awareness Organization. Bryan’s book, “Have You Seen My Mother: A True Story of Parental Kidnap.”, is a gut wrenching. Bryan’s documentary will raise awareness about a subject that has been off the radar for too long. Please think about donating to this cause. You can find more information at:
About the Documentary
It’s estimated about 250,000 children are abducted by a parent or family member every year in the United States alone. Parental abduction is also a major international problem.
As these children are used a pawns in toxic relationships, the abuse they endure is ignored. Abuse, many of us have to deal with for many years, well into adulthood…
We examine this abuse from the child’s point-of-view by interviewing adult survivors of this abuse.
We are also looking to film in Canada, Australia and the UK. Parental abduction to Japan is one of the largest issues in international parental abduction.
Where the Money Goes
As you can see, we need several thousand to cover travel expenses. With the $30,000.00 we also expect to be able to accomplish preliminary editing (post production), but we are working on grants to pay for the final editing. Anything we can raise over our goal will help us complete the documentary, pay for marketing, etc. and any extra money goes to the non-profit Prevent Parental Kidnap, Inc.
Aug 6th, 2012, Aichi – Japan Today
Police said Tuesday they have arrested a 23-year-old man on suspicion of killing his father before kidnapping and imprisoning a 7-year-old girl in Nagoya.
According to police, the man, who has been named as Makoto Mizushima, is suspected of taking the girl back to his Nagoya apartment and confining her inside. It is believed he approached the girl as she left her home to go to school on Monday morning, Fuji TV reported.
Upon hearing that their daughter had not made it to school and had not attended the school opening ceremony, the girl’s parents alerted the authorities.
A police investigation was launched and a search of the apartment block carried out, during which police discovered the girl in Mizushima’s living room next to a body believed to be that of Mizushima’s father. Police say the girl was unharmed, Fuji reported.
Mizushima was quoted by police as saying he killed his father. According to police, injuries found on the body were consistent with those sustained during death by strangulation.
Japan TodayRead Full Post | Make a Comment ( None so far )
CRIME SEP. 05, 2012 -HIROSHIMA —
Police said Wednesday they have arrested a 20-year-old university student for allegedly kidnapping a 12-year-old elementary school girl in Hiroshima on Tuesday night.
Police said the suspect, identified as Tomohiro Kodama from Setagaya in Tokyo, is accused of forcing the girl to get into a large travel bag at knifepoint and then placing it in the trunk of a taxi. The girl had been waiting for her mother to pick her up at Nishi-Hiroshima Station after attending cram school.
According to police, Kodama asked the taxi driver to help him put the bag in the trunk at about 8:50 p.m. Tuesday and then drive to Hiroshima Station. The driver was quoted by NHK as saying he felt something warm and soft. He drove along for about four kilometers and could hear cries coming from the trunk. When he asked Kodama if there was a dog in the bag, Kodama said nothing. When they stopped at a traffic light, Kodama asked to get out.
However, the driver restrained him and asked a passerby to call police. Then he and the passerby opened the bag and found the girl, unharmed.
Kodama, who belongs to a martial arts club at his university, has confessed to kidnapping and confining the girl. He was quoted by police as saying he did not know her and that he had planned to take her back to a hotel near Hiroshima Station, where he was staying.
- Sidney Morning Herald
The Italian father embroiled in an international custody battle has left Australia after giving up hope he will win his legal fight to get his daughters back to Italy.
The father – who cannot be identified for legal reasons – flew out of Australia on Friday morning without telling any of his local supporters he was leaving. He contacted them from a stopover in Abu Dhabi to tell them he had “had enough”, and was on his way back to Italy.
The 35-year-old has been in Australia since May trying to engineer his daughters’ return to Italy. Born and raised there, the sisters, aged nine, 10, 13 and 15, were brought to Queensland by their Australian mother two years ago on the pretext of a holiday – and stayed.
Supporters said the “very emotional and angry” father made the snap decision to abandon his fight for custody after his daughters made it clear on Wednesday they would resist any court orders to return them to Italy for a custody hearing.
The Sun-Herald has been told the sisters said authorities would have to handcuff and drug them to get them on a plane to Italy and, once there, they would simply run away.
The sisters went into hiding in May when the Family Court first ruled they must go back to Italy so courts there could settle the custody dispute in accordance with Australia’s obligations as a signatory to the Hague Child Abduction Convention.
But the father despaired of this ever happening, after a Family Court judge agreed on Thursday to hear an appeal to dismiss his original order the girls be sent back to Italy. The application to discharge his ruling will be heard on September 27.
The judge also ordered the girls be interviewed again by an independent consultant to ensure their wishes were understood, noting their desire to remain in Australia could have intensified since his first order was made.
It is understood that the father has spent €120,000 ($142,000) on the custody fight and has been on unpaid leave from his job for months.
Although he declined to comment on why he decided suddenly to leave Australia, supporters said he had grown increasingly frustrated with the way his former wife had used the Australian legal process to evade the Italian courts.
The father has publicly accused the mother of playing “dirty tricks” to win custody.
A spokesman for the father said he could not continue to fight for the children under circumstances that constantly thrust them into situations that were not in their best interests emotionally or psychologically.
”He loves and cherishes his daughters and always will,” he said. ”He will never give up on them.”
The spokesman also said Australia had little respect for the Hague Convention and international child abduction laws.
The father said last month that he felt discriminated against because he was a man and not Australian.
While the custody case dragged through the courts, the girls have been living with their mother and attending school on the Sunshine Coast. Their father had been granted regular access pending the final decision on whether the family must return to Italy.
The girls hold dual Italian-Australian citizenship.
BOXER, LAUTENBERG, KERRY, LUGAR, INHOFE JOIN COLLEAGUES TO INTRODUCE RESOLUTION CONDEMNING INTERNATIONAL PARENTAL CHILD ABDUCTION
Politics Apr. 18, 2012 – WASHINGTON —
U.S. President Barack Obama will host Japanese Prime Minister Yoshihiko Noda in Washington on April 30, for their first meeting since North Korea’s rocket launch, the White House said Tuesday.
Obama wants to address a “wide range of bilateral, regional and global issues, including the U.S.-Japan security alliance, economic and trade issues, and deepening bilateral cooperation,” White House spokesman Jay Carney said.
“The two leaders will also discuss regional and global security concerns,” Carney said in a statement—with North Korea’s rocket launch likely high on that agenda.
The April 30 meeting will be the second one-on-one talks between the two leaders, and the first at the White House. Noda took office in August 2011.
The last meeting took place in September last year on the sidelines of the U.N. General Assembly meeting in New York, in which both were taking part.
North Korea claimed its rocket launch last week was to put a satellite into orbit as part of celebrations to mark the centennial of the birth of the country’s founder Kim Il-Sung, as his young grandson Kim Jong-Un takes the reins of power.
The United States and its allies, however, said it was a disguised long-range ballistic missile test banned under UN resolutions.
The test ended in failure, with the rocket disintegrating in mid-air soon after blast-off and plunging into the sea in a major embarrassment for the reclusive state.
And the U.N. Security Council responded by tightening sanctions on Pyongyang, warning of new action if the isolated state stages a nuclear test.
The United States and Japan are both party to long-stalled six-way negotiations on ending Pyongyang’s nuclear drive, along with China, Russia, and the two Koreas.
Carney said after the launch that Washington “remains vigilant in the face of North Korean provocations, and is fully committed to the security of our allies in the region.”
The United States also confirmed it would not go forward with an already suspended deal to send food aid to North Korea.
Japan and the United States have differed on Iran, upon which Washington has imposed crippling economic sanctions over its suspect nuclear program. But last month, the Pacific allies came to a compromise.
Noda has said Tokyo would strive to reduce its oil imports from the Islamic republic, while the United States last month said it was exempting Japan and some European Union members from tough new sanctions aimed at Tehran.
The United States has also pressed Japan on child abductions, urging it to sign the 1980 Hague treaty that requires countries to return children to the countries where they usually live.
Japanese courts virtually never award custody to foreign parents, especially men, and authorities have never returned overseas a child snatched to Japan.
U.S. parents have pursued more than 120 cases to seek access to their half-Japanese children.
Under growing foreign pressure, leaders in Tokyo have voiced support for signing the Hague convention, but it would only apply to future cases.
© 2012 AFPRead Full Post | Make a Comment ( None so far )
Mar. 28, 2012 – WASHINGTON
A U.S. congressional panel on Tuesday advanced a bill that would punish nations for not addressing child abductions, putting pressure on Japan which has never returned a child to foreign parents.
The House foreign affairs subcommittee on human rights approved a bill that would pave the way to call off cultural or scientific exchanges or deny export licenses to countries that do not promptly seek to resolve abduction cases.
“Our current system with its endless delays and lack of proper accountability has failed too many,” said Representative Chris Smith, a Republican from New Jersey and chairman of the subcommittee.
“It is time for an approach that backs our demands for adherence to international obligations with penalties and makes very clear to foes and friends alike that our children are our priority,” he said.
The measure still needs approval from the full committee and House of Representatives along with the Senate to become law.
While the bill would apply to all countries, the United States has the most pending cases with Japan where U.S. parents have pursued more than 120 cases to seek access to their half-Japanese children.
Japanese courts virtually never grant custody to foreign parents, especially men, and authorities have never returned overseas a child snatched to Japan.
Japan long argued that it is protecting women from abuse. But under growing foreign pressure, Japanese leaders have voiced support for ratifying the 1980 Hague convention that requires countries to return children to the country where they usually live.
But even if Japan signed the treaty, it would only apply to future cases.
Doug Berg, who served with the U.S. military in Japan, said that his two children were abducted in 2009 and that he has not heard from them even after last year’s devastating tsunami.
“The only time I ever get to see them, really, is when I dream about them. I don’t know where they’re living. I’m not allowed to know,” he said.
“That’s a shame that we call that country an ally of ours,” he said.
The bill would call on the president to make a diplomatic demarche to another country if a child abduction case is pending for more than six weeks.
If a country has 10 or more cases pending, the United States could take tougher action such as refusing to grant export licenses for goods, withholding aid and canceling exchanges or official visits.
Japan TodayRead Full Post | Make a Comment ( None so far )
By Leila Elmergawi
I was about four years old when one day my father dressed me up in nice clothes and took me to my grandparents’ house. At my grandparents’ house, there was a beautiful woman who I didn’t know and when my brother saw her he ran to her and hugged her. My father told me that this woman was “my mother!”
My mother talked to me in words I did not understand, as I couldn’t speak English. She tried to hug me but I got scared, started crying, and ran away. My father tried to bring me back to the room and told me it was okay. He told me that I had to be polite and come back to spend some time with my mother, who had come all the way from the United States to see me (I was in Egypt then). Finally I went to spend time with her. Since I couldn’t understand what she was saying to me, the toys that she gave me were the only thing that made me smile. This was the last time I saw my mother for a long time.
Right after this, I started paying attention to conversations between my father and his family about “abduction,” “the kids’ mother,” “leaving the country,” “lawyers,” and “U.S. embassy officers.” I had no idea what all that meant. My father told me that he had abducted me from the United States, where my mother is from, and that he would not allow my mother to see me again because she was trying to take me away from him. We lived in a state of fear for a few months until one day we left the country.
We lived in three different countries, traveling from one place to another hiding from my mother and the American authorities. In the very beginning, I had feelings of anger and resentment towards “my mother” because I had to go through all this. I loved my father very much and didn’t want to be taken away from him. Later on, as I grew months and years older, these feelings of anger and resentment were mixed with feelings of abandonment and sadness. I wished I could see my mother. I was jealous of all my friends who lived with their mothers and I wished I knew mine. The only thing I knew about my mother then was her first name and a fading memory of the day I saw her, and I dared not ask about anything else.
I never knew what it was like to have a mother. Anytime I read children’s books, instead of wondering like other children what fairies looked like, I wondered how the characters in the books felt about having mothers. I always thought that having a mother must be the most wonderful thing in the world. At the same time, songs about mothers and Mother’s Day were my worst enemies. I refused to think that my father, whom I deeply loved, and still do, and who I knew loved me very much, would do anything to hurt me. I always thought that there must be a very good reason why he had abducted me from my mother. However, I always felt sad and incomplete, and I blamed it all on my mother.
I lived with these mixed feelings towards my mother until I was 13 years old, when I found out that my mother was able to get in touch with my brother and that he had been talking to her. I became very angry with him. I felt angry because I felt that he had betrayed my father and wasted all the years we had lived hiding in “exile,” which is how we felt at the time. I went to my brother’s room one day. He was talking to my mother on the phone and he said she wanted to talk to me. I reluctantly held the phone and heard her voice for first time. She said that she had been looking for me for years and that she was happy to finally know where I was. I could speak some English then and I understood what she said, but all I could do was cry and I could never say a word back.
I was torn for days and months after that. I wished it wasn’t up to me to make the decision whether to talk to my mother or not. I also felt I was betraying my father. If my father had known what was going on then and had asked me if I wanted to meet my mother, I would have said “no” to avoid hurting his feelings. It took a long time before I could even consider accepting my mother into my life and I felt that I couldn’t see her. She was just a stranger to me after all. Because of her patience and persistence, however, I finally agreed to see her. She came to Egypt and I sneaked out of my father’s house to see her for the first time in many years.
However, this story is not about me. I am a 26-year-old adult now. I have been in contact with my mother ever since I saw her in Egypt 12 years ago and I spent every summer with her when I was in college. Despite all the emotional distress I lived through as a child after I was taken away from my mother, and all the agony and suffering that I endured in silence, I am lucky! I now know my mother and she is a big part of my life as I always wished her to be. Nothing will bring back the years I lived without her in my life, but I don’t know what kind of person I would have been today without my mother.
This story, however, is about the hundreds of children in Japan who wake up every morning with the same feelings of agony that I felt growing up, deprived of having one of their parents in their lives. I was shocked to learn about this fact when I was in Japan doing an internship at the American Embassy in Tokyo last year. I also learned that Japan has actively engaged in talks to study the consequences of signing the Hague convention to prevent further cases of international parental child abduction to and from Japan.
However, it shattered my heart to learn that the hundreds of children who have been abducted to Japan in the past may not be returned to their homes or ever see their other parent again until they are adults. They will have to grow up with the agony I felt, suffering everyday and unable to do anything about it. My mom had been looking for me for years and we were both lucky she finally found me. Some of the left-behind parents that I met in Japan are close to losing hope of ever finding their abducted children. I wish I didn’t have to sneak out of my father’s house to see my mother when I was a teenager. I hope the system in Japan will have more options for these many children who were abducted to reunite with their parents and end their suffering without having to sneak out of their homes.Read Full Post | Make a Comment ( 1 so far )
By MANABU SASAKI / Staff Writer Asahi Shimbun
A woman who has not seen her two children since March, when the Great East Japan Earthquake struck, is starting to give up hope of ever seeing her sons again.
The woman’s apartment still contains the brand-new jacket and school bag that her older son would have used if he had entered elementary school in April. The mother, a civil servant, also finds herself searching for her two sons in her apartment when she returns home from work, despite knowing deep inside that her home is empty.
But it wasn’t the quake or tsunami that separated her from the boys, aged 5 and 7.
“It is like a kidnapping,” said the woman, who lives in the Tokai region.
The boys are now in the United States with the woman’s American husband, who has refused to return to Japan, citing radiation fears. He has also filed for divorce.
There is very little she can do to win custody of the children because the Japanese government has not passed the necessary legislation to join the Hague Convention on the Civil Aspects of International Child Abduction. Under the convention, if a parent illegally flees with a child under 16 to another nation, the child has to be returned to the former nation of residence.
Tokyo signaled its intention to ratify the treaty after a number of high-profile cases involving Japanese mothers taking their children to Japan without the consent of their foreign ex-spouses or in defiance of court orders.
But since the Fukushima nuclear accident started in March, Foreign Ministry officials have received a number of inquiries from Japanese parents whose spouses have left Japan for their home nations with their children in tow, using the accident at the Fukushima No. 1 nuclear power plant as an excuse not to return.
About the only thing ministry officials can do is pass on lists of lawyers in the foreign nations where the spouse has gone to.
“We feel sorry for the parents because this is a form of negative publicity from the nuclear accident,” a ministry official said. “We hope the couples will hold calm discussions based on objective information about radiation.”
The Tokai woman’s husband in March took the boys to the United States for what was supposed to have been a one-month visit. But the Great East Japan Earthquake soon struck, and the husband refused to return to Japan, expressing concerns that the sons could be exposed to radiation from the Fukushima nuclear accident.
Daily reports in the United States showed the damage from the quake and tsunami. Nuclear experts often appeared on TV citing the dangers of the radiation spewing from the Fukushima plant.
The woman used a TV phone over the Internet to talk with her husband and children, trying to convince them that the Tokai region was safe.
But the children, perhaps influenced by their father, also expressed concerns about the danger of waves flowing inland as well as poison in the air.
The husband initially said he would return to Japan once the situation at the nuclear plant stabilized. However, by summer, he had withdrawn about $17,000 from his wife’s bank account and had rented an apartment in the United States.
In November, he filed a lawsuit in the United States seeking a divorce. He did not abide by his initial promise even after the Japanese government declared the situation at the Fukushima plant to be under control.
The woman met her future husband in 2001, when she was studying in New York. They were married the following year.
The husband was still a student, and living in New York was not economically feasible. So the couple decided to move to Japan with the wife working to support the family.
But now, she lacks any assurance of finding a stable job in the United States. She feels the possibility is low that she would be granted custody of the children under such conditions.
She has consulted with a U.S. office handling inquiries about abducted children. If Japan had joined the Hague Convention, the United States would have been obligated to return her children to Japan as a member of the convention, the office told her.
But Japan has not yet joined, leaving her and her children uncovered for protection under the convention.
She also consulted a lawyer in the United States because she felt the only way to get her children back was through a lawsuit of her own. But she was told that U.S. courts looked at how the children were being raised over the most recent six months. That would put her at a disadvantage because she had been separated from her children since the natural disasters.
Having allowed her children to remain in the United States because of radiation fears ended up working against her.
A court case in the United States can be time-consuming and costly, and she has no guarantee of winning.
Through letters and phone calls, she repeatedly tells her two children that they mean everything to her, but she has no idea when she may see them again.
“I hope the government joins the convention as soon as possible to prevent parents from successfully fleeing with their children,” she said.
Officials said there have been cases of lawyers recommending that parents flee Japan with their children because there is a good chance they can get away with it.
“Custody battles with a foreign nation should be resolved through international rules after joining the Hague Convention,” said Mikiko Otani, a lawyer who specializes in divorces among international couples. “It is extremely difficult for an individual to find a lawyer in a foreign nation specializing in such matters and proceeding with legal action.”
She also said many parents in Japan face difficulties because there are few lawyers knowledgeable about international divorce cases.
“There are risks involved in international marriage because of differences in laws and cultures,” Otani said. “There are also major differences in thinking on divorce and custody, so there is a need to be aware of the need for a basic understanding of the related laws.”
Colin P.A. Jones
Professor, Doshisha University Law School
(Photo by Shinchosha)
Japan has developed a growing reputation as a haven for international parental child abduction. Major media outlets in the United States and other countries have brought attention to a number of recent cases of children being unilaterally removed by a Japanese parent from the United States before or after divorce, often in violation of American law and court orders.
Attempts to achieve the return of children taken to Japan through the Japanese legal system tend to be unsuccessful. As a result, some children who were born and raised in the United States have lost all contact with an American parent and other relatives, American friends, and the American part of their heritage as a consequence. The apparent lack of legal remedies for abduction in Japan is due to a number of factors that are discussed in more detail below.
Child abduction as more than just an “international” problem
From the outset it is important to understand that most of the factors which prevent the return of children taken from other countries also affect cases arising entirely within Japan, including some involving Americans married to Japanese nationals and living in Japan, and even the occasional case where both parents are foreign residents of Japan. In these strictly domestic cases also, marital breakdown all too often results in parents losing all contact with their children, notwithstanding the involvement of Japanese courts.
In other words, even though international cases tend to receive more publicity, they merely reflect structural issues in the Japanese legal system which have the effect of limiting the legal remedies of Japanese and non-Japanese parents alike. Thus, just as U.S. and other diplomats have sought change in the way cross-border abductions are dealt with by encouraging Japan to join the Hague Convention on the Civil Aspects of Child Abduction, a variety of Japanese parents’ rights groups have been seeking better protection of the parent-child relationship after divorce by lobbying for amendments to Japanese family law.
Despite the catastrophic earthquake and tsunami of March 11, 2011 and subsequent nuclear crisis in Fukushima, there are encouraging signs that Japan will soon move towards ratifying the Hague Convention. In May of 2011 the Diet also made encouraging amendments to its domestic laws relating to visitation after parental separation. Since these amendments have not yet taken effect (and may have a limited impact), this article will discuss both the law as it was – and had been for decades, as well as the nature of these changes.
The role of law in Japan
The Japanese legal system is based heavily on foreign models – German and French codes and institutions in many instances, but the United States as well in the case of its constitution and many areas of business law. Indeed, it is possible to describe Japanese family law and how Japanese courts resolve child custody issues in terms that make it seem quite similar to the United States or other Western countries. However, the law in Japan is much more “top down” than it is in the United States, where many important doctrines have been built through the ground up through litigation. By contrast, in Japan the law is more likely to be a medium for expressing and exercising authority, and judges (authority figures themselves) are less likely to question the exercise of that authority. The top-down character of Japanese law can be seen in statutes and procedural regimes which preserve maximum flexibility for judges and other government officials in terms of what they may do, while limiting the range of things that they must do.
Is parental child abduction a crime?
U.S. citizen parents whose children who have been abducted to Japan are likely to be told by Japanese officials that under Japanese law it is not a crime for parents to “abduct” their own children. However, there have been instances of Japanese and foreign parents being arrested, even convicted – for kidnapping their own children. Article 224 of the Japanese Penal Code describes the crime of “abduction of a minor” in very sparse terms: “[a] person who kidnaps a minor by force or enticement shall be punished by imprisonment with work for not less than 3 months but not more than 7 years.” An American lawyer reading this would probably seek more information on how the terms “kidnap,” “force,” and “enticement” are interpreted and would probably look to case law for guidance. But court precedents are not likely to be as useful for interpreting statutes such as this, at least not to the same degree as they would in the United States.
As a result, both the characterization of parental abduction as a non-crime and the arrest of some parents for criminal abduction can co-exist as “correct” interpretations of Japanese law. An abduction which disrupts public order (a father grabbing his children off the street) may be treated as a crime, while those which do not (a mother getting on a plane or a train with her children to go live with her parents, or merely refusing to return to the United States after a visit to Japan with the children) probably will not. Japanese law enforcement authorities have a basic policy of not getting involved in “civil disputes” but also wide discretion in deciding if a particular dispute is a civil one or not, meaning that the most important determination about whether a particular case of abduction is a crime or not may be made at the police station rather than the courthouse.
Custody determinations as an administrative disposition
Similarly, with respect to decisions regarding parental authority, custody, and visitation involving children in divorce, there are no statutory guidelines which a court must follow, such as the principle found in U.S. law that frequent and continuing contact between a child and his or her parents after they separate is presumed to be in a child’s best interests. Furthermore, since there is also no Japanese constitutional jurisprudence establishing a fundamental interest in having and raising children or otherwise recognizing a constitutionally-protected dimension to the parent-child relationship, decisions about children made by Japanese judges are essentially a form of administrative disposition made in the absence of law. As discussed below, many of the most important decisions a judge may make about children are likely to be rendered in the form of “decrees” following non-public, non-trial proceedings.
Japanese family court judges thus have tremendous discretion when it comes to making decisions about children and may do so by, for example, completely reversing a foreign custody, refusing to award any visitation to a non-custodial parent, awarding visitation for only a few hours once a year, or ordering the custodial parent to send a few photographs of the child every year in lieu of visitation.
Divorce and child custody as part of a consensual process
In Japan, both divorce and what happens to the children afterwards are presumed in the first instance to be determined through consensual arrangements. Japan’s Civil Code provides for divorce by agreement with judicial divorce being available only when the parties cannot agree and a limited range of grounds for divorce are applicable. Furthermore, unlike in the United States where even a consensual divorce involves court filings and possibly a judicially-approved parenting plan or separation agreement if children are involved, a Japanese cooperative divorce is accomplished by simply filing the relevant paperwork with a local government authority which will reflect the change in marital status and allocation of parental responsibility in the parties’ family registry. Since approximately 90% of divorces are accomplished through this process, courts only become involved in the small minority of cases where parties cannot agree on a cooperative divorce or where there is a dispute over children or other matters arise after divorce, including situations where one parent abducts the child or refuses to allow visitation after divorce.
Under Japanese law, parties seeking a judicial divorce or other judicial relief relating to child custody must first attend family-court sponsored mediation. Mediation sessions take place in a family court mediation room in front of a mediation panel composed of a judge, two mediators chosen by the court, and court personnel. Mediation continues at a pace of about one session a month until the parties agree on a result or the judge decides that further sessions are pointless. Although the court takes the lead in administering the mediation, its primary purpose at this stage is to encourage the parties to agree on a result.
Approximately 8% of Japanese divorces – most of those which are brought into court – are achieved through the mediation process. The remaining 2% are either judicial divorces resulting from litigation commenced after mediation has failed, or divorces by settlement after such litigation has commenced but before a divorce judgment. Therefore, one aspect of divorce proceedings that may be confusing is that there are a variety of procedures which vary depending upon the scope of the court’s involvement and responsibility. There are cooperative divorces which involve no court action whatsoever, mediated divorces and divorces by settlement where the court is involved but not responsible for the result, and judicial divorces where the court is involved and responsible for the final result (technically there are two additional types of divorce which are rare and not discussed in this article). Judicial divorces account for only about 1% of all divorces. These differing procedural regimes are also relevant to child custody proceedings.
Because Japanese law provides for court proceedings which in many cases lead to a result for which the court is not responsible, there may be a significant gap between what U.S. citizen parents expect from family courts and what family courts consider their role to be. A party seeking the return of or at least visitation with a child usually wants the court to “do something” as soon as possible. Since most cases are going to start with mediation, however, the family court may view its role primarily as one of encouraging the parties to agree upon a mediated result. Furthermore, since at the mediation stage the court is supposed to be playing only a supporting role, it may be reluctant to provide interim remedies (including ordering the handover of the child) unless they are clearly in the best interests of the child.
Other aspects of Japanese family law may also come into play at the mediation stage. Although divorce is exceptionally easy in Japan so long as both parties agree to it, obtaining a litigated divorce unilaterally over the objections of one party is exceptionally difficult and time consuming. In addition, just as there is little formal law specifying what should happen to children after their parents separate, Japan’s Civil Code is similarly sparse when it comes to providing for property distribution, alimony, and child support. Accordingly, courts have developed a variety of doctrines to protect the financially weaker party from being divorced on unfavorable terms.
A number of amendments to the Civil Code were made in May 2011, though it is unclear what effect they will have on current family court practice. First, the amendments make it easier for public authorities to temporarily suspend parental authority in cases of child abuse and neglect. Under prior law the only remedy was permanent termination of parental authority. Second, under the amended law, parents seeking a cooperative divorce will be required to provide for visitation arrangements and other forms of contact as well as allocate child-rearing expenses, in each case giving priority to the welfare of their children. If they are unable to do so then a family court may make the determinations in their place. While it may seem a minor change, the fact that visitation is now even mentioned in the Civil Code could be said to represent significant progress, since before this amendment it was nothing more than a judicially-created disposition.
However, it is not clear that courts (as opposed to parents) are required by the new law to make decisions in the best interests of children, or that visitation is presumed to be good for children. Combined with the addition to another part of the Civil Code which imposes upon all parents a statutory duty to act in the best interests of their own children, it is not clear whether family courts will regard the new amendments as being anything other than a codification of their existing practice.
Parental authority and custody
Although determinations relating to children are generally made in the context of divorce proceedings, an important procedural difference emerges if mediation fails. To understand this, however, it is necessary to briefly review the concepts of parental authority and custody. Under Japan’s Civil Code, married parents jointly exercise parental authority over minor children. Parental authority includes both the rights and duties of the parent relating to the care and upbringing of their children, but also the management of the children’s property and the taking of legal actions (such as applying for a passport) on their behalf, or even consenting to the child’s adoption. Because parental authority can be relevant to commercial transactions and dealings with government agencies, it can be confirmed through the family registry system. An extract from a child’s family registry may be required for passport applications or other dealings where proof of the parent-child relationship and the parental authority of the person making the application are required.
Under the cooperative divorce regime, parents simply make a notation on the divorce form as to which parent will retain parental authority over which children after divorce. One significant limitation, however, is that Japanese law does not allow for the formal continuation of joint parental authority after divorce even if both parents agree to it.
Procedurally, court involvement makes custody and parental authority more complicated. This is because it is possible for courts to separate the “care and custody” element of parental authority from the property management/legal representative aspect and award them to different people. Thus, a mother could be awarded custody over the child, who she would live with and raise, while the father would be awarded parental authority (minus the custodial element), which though being reflected in his family registry, would be limited to only the authority to manage the child’s property and engage in legal acts in the child’s name. In reality, this type of split custody is rare. The true significance of a court’s ability to deal with these two elements of parental authority separately is more important for procedural purposes rather than the end result.
Judicial determinations of parental authority are generally only made (or changed) by courts at the time of a judicial divorce following a trial. If divorce mediation fails, the onus is on one of the parties to proceed with divorce litigation. If neither does so the parties will simply remain married under the law but live apart. Parental authority will nominally remain with both parents.
However, with respect to matters relating to the custody portion of parental authority ( i.e., who will live with and raise the child, visitation, child support payments, and whether a taken child should be returned), if mediation fails the court will automatically proceed with making a determination, even if neither party proceeds with divorce litigation. These determinations may also be made (or changed) by courts after divorce, in the case of disputes over visitation after a cooperative divorce, or when a child is abducted to Japan after a divorce has taken place in the United States or elsewhere.
Procedurally this is significant because to the extent they are decided by a judge at all they are likely to be decided through the issuance of a judicial decree after mediation fails. Decrees are issued through “non-trial” proceedings, with very loose procedural and evidentiary requirements. Accordingly, what for most parents is the most important part of the proceedings – the part in which the fate of their children is decided – involves a process which seems like a trial (since there is judicial involvement) yet lacks many of the procedural or evidentiary protections that the average person is likely to expect from a trial.
Decrees can be appealed, and if the case advances to divorce litigation, a judge granting a judicial divorce can also make decisions relating to children ancillary to the divorce. In reality, however, it is probably unlikely that judges will second guess a prior decree on custody issues absent blatant mistakes or a change in circumstances.
In cases involving child abduction or interference with visitation, even a complete “win” in court may prove meaningless. Japanese civil law struggles with the enforcement of judgments in many contexts, but it is a problem that is particularly evident in disputes over children. Japanese courts lack marshals with police-like powers that can facilitate enforcing civil judgments. Similarly, Japanese judges do not have broad powers to sanction or imprison recalcitrant parties for contempt of court. Nor is there a mechanism for courts to require the police to become involved in such cases.
The first step in enforcement of a family court decree may be for a family court to issue a “compliance recommendation.” This may involve further inquiries by a family court investigator to confirm the circumstances behind the refusal of the parent having custody to cooperate with visitation. Even if a compliance recommendation is issued, however, there are no sanctions for non-compliance. In fact, compliance recommendations are considered to be a form of casework that is an extension of the courts’ role as a social welfare institution rather than a judicial one. As such, they have no legal force whatsoever.
In terms of actual legal remedies for enforcement, Japanese civil law does not contain any provisions which deal specifically with enforcing orders relating to the compulsory transfer of a child from one parent to another. One remedy is for the court to impose a non-penal monetary fine on a party who refuses to comply with a court order to return an abducted child or cooperate with visitation. However, this type of “indirect enforcement” may be of limited efficacy against parties who do not have a regular income or identifiable assets subject to forfeiture.
In the case of a court order for the return of a child who is young enough that they can be deemed not to have the capacity to form their own intent, it is also possible to seek “direct enforcement” of the order. This involves a district court bailiff attempting to physically accomplish the return of the child. Although the bailiff may request police accompaniment if there is a fear that the abducting parent may become violent, the police will not get involved if there is no crime. The bailiff himself does not have the power to arrest a non-cooperating parent. Thus, although direct enforcement is sometimes successful, it can also sometimes be frustrated by a taking parent through the simple expedient of stubbornly refusing to let go of the child or even just hiding.
Failing any of these remedies, the final arrow in the judicial quiver is habeas corpus. Based on the ancient common law remedy for unlawful detention by government officials, habeas corpus in Japan is used to order an abducting parent to bring the child to court for an inquiry into why they have been “detained.” A parent who refuses to follow a habeas corpus summons and bring an abducted child to court may be subject to imprisonment and/or penal fines. It is thus the only remedy for abduction available to the judiciary where there is the possibility of criminal sanctions for non-compliance.
While it is not uncommon for left-behind parents to immediately file for habeas corpus for children who have been taken to Japan, there do not appear to be any cases where a Japanese court has found the detention of a child to be “significantly unlawful,” even if it involves the violation of a foreign court order or has resulted in criminal proceedings in that country. There have been a number of cases where Japanese courts have both recognized the validity of a foreign court order awarding custody to the foreign parent while refusing to grant habeas corpus relief.
Domestic violence, legislative amendments, and the Hague Convention
The Japanese government is often criticized for appearing to drag its feet on adopting the Hague Convention. As the above discussion shows, however, meaningful implementation of the convention would involve significant amendments to Japanese domestic law. That this process may require a wide-ranging debate is understandable in a democratic society such as Japan.
In the course of the debate over the Hague Convention, one concern that has been expressed repeatedly is how to deal with situations where a Japanese mother residing abroad unilaterally returns to Japan with her children out of fear of domestic violence in the United States or other countries. While domestic violence is a legitimate policy concern, it is also an issue that can be assumed dealt with adequately through the legal system of the United States or other Hague Convention signatories. While it would be easy to view the concerns about domestic violence as primarily reflecting a lack of faith in the judicial systems of potential treaty partners, domestic violence is also controversial in strictly domestic custody cases. Japanese law defines “domestic violence” in exceptionally broad terms and it is often interpreted even more broadly so that not only physical violence, but verbal abuse, psychological “violence,” and even “economic violence” is sometimes included.
It has been suggested by some in Japan that the Hague Convention be signed, but with implementing legislation providing for exceptions that would prevent the return of children in cases involving domestic violence or abuse. The Japan Federation of Bar Associations has gone further in proposing that any legislation implementing the Hague Convention, if adopted, not only prevent return in such cases, but also if the taking parent would be subject to criminal prosecution if they returned with the child. Given the expansive definition accorded to domestic violence and abuse, it seems possible that virtually any instance of a child being taken to Japan could be characterized so as to fall into this exception. But this involves speculating on legislation that does not yet exist.
As noted in the introduction to this article, recent events in Northeastern Japan will have dramatically shifted the focus of policymakers in Japan. What can be expected in the immediate future in terms of the Hague Convention and further changes to Japanese family law remains to be seen. But natural disasters notwithstanding, Japanese people will continue to get married, have children and, in some cases, get divorced. So long as no changes are made, Japan will also continue to be regarded as a haven for abduction. This would be a sad thing since it is ultimately children – the ultimate resource in Japan, the United States, and everywhere else – who will continue to suffer.
Colin P.A. Jones is a Professor at Doshisha University Law School, a Life Member of Clare Hall, University of Cambridge, and has been admitted to the bar in New York, Guam and the Republic of Palau. He received his A.B. from the University of California at Berkeley, an LL.M. from Tohoku University, as well as a J.D. and LL.M. from Duke University School of Law.Read Full Post | Make a Comment ( None so far )
By Bruce Vielmetti of the Journal Sentinel
Dec. 23, 2011
Just in time for Christmas, a Fox Point man was reunited Friday with his young daughter whose mother fled with her to Japan nearly four years ago at the start of the couple’s divorce.
The girl’s return also freed her mother from jail in Milwaukee, where she had been held on contempt and interfering with custody charges since her April arrest on a Wisconsin warrant in Hawaii, where she had gone to renew her U.S. permanent resident status.
The exchange and release ended an expensive international legal, diplomatic and cultural struggle, and is believed to be the first time one of more than 300 children kidnapped to Japan has been returned to the U.S. via legal intervention.
“I didn’t think this day would ever come,” said James Sakar, an attorney for Moises Garcia.
Garcia, 39, met his daughter at O’Hare International Airport, where she arrived with her grandmother and Garcia’s Japanese lawyer. Along with Sakar, there were several law enforcement officials, staff of the Japanese Consulate in Chicago, a psychologist, representatives of the U.S. State Department and advocates for other American parents whose children are being held in Japan, where officials have refused to sign a world convention about international child abduction.
“They blinked, I guess,” said Patrick Braden, the founder of Global Future, an advocacy group for parents, and whose own child remains in Japan.
Garcia, 9-year-old Karina and Garcia’s sister drove back to Fox Point on Friday morning.
Braden said Garcia told him Friday afternoon that he was shocked how quickly Karina seemed to fit back into life in Wisconsin, recognizing her old room, toys and neighborhood friends.
“They’re out shopping now,” Braden said.
Garcia, Braden and others plan a news conference about the case Saturday.
Garcia’s ex-wife, Emiko Inoue, 43, is Japanese with legal U.S. residency while married to Garcia, a physician. She took her daughter to Japan in February 2008, shortly after Garcia had filed for divorce, and ignored court orders to return. Last month, Inoue pleaded no contest to interfering with child custody under an agreement that she would ultimately be convicted of a misdemeanor if her daughter was returned to Garcia, who has legal custody.
Inoue’s attorney, Bridget Boyle, filed paperwork Friday confirming the girl had arrived in the United States and then met Inoue as she was released from jail – where Japanese TV news crews were waiting.
“She’s very happy,” Boyle said, but did not want to speak with a local reporter.
Boyle said Inoue would spend the night at a hotel with her mother, then stay in the area with a friend. She said it “could be a period of time” before Inoue gets to have direct contact with her daughter.
“But the ultimate goal of everyone is to get this child to have two parents,” Boyle said.
Inoue cannot leave the country without a judge’s permission. Sakar said Inoue will have every opportunity to seek visitation arrangements or legal custody changes in family court.
“My guy will never do what she did to him,” Sakar said.
Braden said he was hopeful the case will make it easier for other parents whose children were taken to Japan illegally by their other parent to bring those kids back to the U.S., but doesn’t expect it to open the floodgates.
Sakar said Garcia’s entire effort to bring his daughter home cost hundreds of thousands of dollars, a price many other left-behind parents can’t afford.
“I still expect Japan will do everything it can to make sure this never happens again,” Braden said.Read Full Post | Make a Comment ( None so far )
TOKYO (Kyodo) — A U.S.-based Nicaraguan man who fought a legal battle with his Japanese ex-wife for custody of their 9-year-old daughter has called for changes in the Japanese judicial system, saying the lack of power to enforce court rulings hinders the resolution of such disputes.
Following a drawn-out conflict involving legal action in two countries, the mother last week consented to return the child to the father within 30 days in a plea agreement in a court in Milwaukee, Wisconsin.
In an e-mail interview with Kyodo News after the ruling, the father, a permanent resident of the United States, said he believes his former wife was arrested on a felony charge as U.S. law enforcement authorities thought civil court procedures would not deliver a desirable outcome soon.
When she went to Hawaii to renew her green card in April, the 43-year-old woman from Takarazuka, Hyogo Prefecture was nabbed on a charge of concealing the daughter from the 39-year-old father.
Following the plea agreement, the case in the U.S. court will be held open for three years, after which the felony charge will be reduced to a misdemeanor if she adheres to the court order. The mother plans to live in the United States and seek regular visitation rights, her American lawyer said.
In 2008, the couple filed for divorce and days before the father was granted custody of their child by a U.S. court, the woman took the girl to Japan. After returning home, the mother sought to become the girl’s custodial parent, in place of the father, as she claimed to have been abused by her former spouse.
In March this year, the Itami branch of the Kobe Family Court decided to change the custodial parent as requested by the mother, underlining the fact that the daughter had become accustomed to life in Japan.
But the court rejected the woman’s claim of abuse due to a lack of evidence and granted visitation rights to the father to maintain the daughter’s contact with the languages and cultures of the United States and Nicaragua, according to the mother’s Japanese lawyer.
Both parents filed a protest against the Kobe court ruling and the case is now being examined at the Osaka High Court. The woman’s Japanese lawyer said she will likely drop her appeal in Japan following the plea agreement in the United States.
The man welcomed the Milwaukee court decision as “the first case of a child abducted to Japan to be returned to the habitual residence.” He also said the best interests of his daughter will be protected as she will have access to both parents and her “multicultural heritage.”
He said the case was important as it “allowed us to show the inefficiencies of the Japanese legal system,” referring to what he calls “the lack of enforcement” and “protectionism” in the country’s court process.
The father said his former wife has limited his contact with the daughter in Japan despite the couple’s agreement in the U.S. court to ensure communication between the man and the child.
As an example of the lack of the Japanese courts’ power to enforce their rulings, the man said his former wife “when urged by the judge to let me see my daughter, she simply said ‘No’ and turned around.”
In a rare decision in Japan, the Kobe court granted him visitation time of about two weeks in Japan and 30 days in the United States every year until August 2017. But the mother said such requirements would be “a significant burden” for the daughter and appealed the ruling, the lawyer said.
The lengthy civil court proceedings in Japan may have prompted the U.S. law enforcement authorities to issue an arrest warrant for her a few weeks before her capture in Hawaii, the man said.
To deal with an increasing number of cross-border parental child abduction cases, the Japanese government decided in May to join the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which sets rules and procedures for the prompt return of children under 16 to the country of their habitual residence.
Japan is the only Group of Eight country yet to join. In the country, which adopts the sole custody system, courts tend to award mothers custody and it is not unusual for children to stop seeing their fathers after their parents break up.
The man said he doubts his case could have been settled more smoothly if Japan had been a signatory of the pact, saying his ex-wife “would have used one of the so-called Japanese exceptions for the Hague,” pointing to her claim of his violence.
The Japanese government has been preparing domestic legislation to endorse the Hague Convention, with the aim of submitting a bill to a regular Diet session to be convened early next year.
The bill would indicate exceptions to the returns of children. The outline of the bill worked out by the government sets two conditions — when the abducting parent has fled from an abusive spouse and when such a parent could face criminal prosecution in his or her country of habitual residence.
The Hague Convention only says children will not be returned when there is “a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation” and does not stipulate specific conditions.
“If Japan makes significant changes in the domestic law, including securing and enforcing visitation rights and court orders, I believe that most parents will look for a ‘civil’ solution, and a criminal option will be left behind,” the Nicaraguan man said.
Masayuki Tanamura, a professor of Waseda University specializing in family law, said Japan’s accession to the convention will likely lessen “forcible” solutions of custody rows through criminal prosecutions as it would enhance cooperation between judicial authorities of the countries involved.
Tanamura also said Tokyo needs to work out a system to provide support to anyone involved in such disputes both within Japan and abroad to ensure the welfare of children. “We have long avoided a debate on how the parent-child relation should be after divorce, but we now have to create a system centered on children’s benefits,” he said.
Kyodo News has refrained from disclosing the names of the family members involved in this child custody case for privacy reasons.Read Full Post | Make a Comment ( 1 so far )
MILWAUKEE – Nine-year-old Karina Garcia is at the center of an emotional, international battle between her parents. Her Fox Point father is fighting to bring his daughter back from Japan. The girl’s mother refused to cooperate until now.Sheriff’s deputies hurried a handcuffed Emiko Inoue into a courtroom. This 43-year-old mother has been jailed in Milwaukee County for months. She faces charges for taking her daughter to Japan to keep the child from her ex-husband. The father, Dr. Moises Garcia, had lunch with his daughter at her Fox Point elementary school nearly four years ago. That was the last time he saw her in this country, even though a Wisconsin court gave him custody. “It’s been a long fight,” Garcia told reporters. “It’s been hard.” Karina is now nine years old and is said to be living with her maternal grandparents in Japan. After hours of behind the scenes negotiations Monday, Inoue agreed to have her daughter returned to the US within 30 days in exchange for getting out of jail. Inoue faced more than a decade in prison if convicted and could have missed the rest of her daughter’s childhood. “Now, we’re hopefully with a resolution that will allow the child to be with her father and spend some time with her mother,” said Bridget Boyle, the mother’s attorney. Observers from the Japanese government attended Tuesday’s court proceedings. The case also attracted two California dads who are also fighting to bring their own children back from Japan. Patrick Braden, whose daughter is in Japan, said the Japanese government does not seem willing to honor US custody rulings. Garcia is thankful for Monday’s agreement, but will worry until his daughter is back in his arms. “She played all kinds of tricks in Japan and that’s why I tell you, until she’s back on American soil, I won’t believe that this is true,” Garcia said. Details of the child’s return to Wisconsin have not yet been determined. To view more stories about Dr. Garcia and his daughter, click on the links below.Read Full Post | Make a Comment ( None so far )
The U.S., Canada and four other countries have jointly urged Japan to take legal steps to ensure that parents who have removed their children after the failure of international marriages will not be preferentially treated contrary to an international treaty on cross-border child custody disputes, government officials said Tuesday.
The six countries — including Britain, France, Australia and New Zealand — submitted the joint statement in writing, the officials said. It was part of the Justice and Foreign ministries’ one-month public consultation from the end of September on interim proposals for domestic legislation prior to Japan’s accession to the treaty.
The rare move reflects the countries’ strong interest in Japan’s accession to the Hague Convention on the Civil Aspects of International Child Abduction. The treaty is designed to ensure the prompt return of children who have been abducted from their country of habitual residence.
The envisioned domestic legislation would indicate that children will not have to be returned when the parent has fled an abusive spouse or could face criminal prosecution, presumably in connection with the abduction of offspring, in his or her country of habitual residence.
The joint opinion, submitted by the Canadian Embassy in Tokyo on behalf of the six governments, states that the interim proposals deviate from the convention, which allows the return of children to be rejected only when they could face a “grave risk” if returned, making spousal violence and other reasons inapplicable, the officials said.
I have written about my story previously to The Japan Times, but this most recent article from Richard Cory (“Left-behind dads take desperate measures,” Zeit Gist, Oct. 4) spurs me to write again.
I am an American parent who, in 1994, abducted my children away from their Japanese father because I could not get any protection from domestic violence (against me, not the children) in Japan. In fact, the general response of the legal system was to ask what I was doing to provoke my husband and to suggest that perhaps I needed to seek therapy.
I was also advised by attorneys that it was highly unlikely that I could obtain custody of the children, despite his abusive behavior and late-stage alcoholism, and ultimately I could find no options other than fleeing Japan.
Leaving the only home they had ever known, as well as the total separation from their father, was a terrible shock for my two daughters, and has affected them into adulthood. To this day I mourn the life we lost, and wish that there had been an alternative.
My preference would have been to stay in Japan, where I had lived for 17 years and felt deeply connected, but this was not possible. Without the protection of an order granting me primary custody, and without support from law enforcement to protect us from violence, we had no way to safely stay in Japan. Sadly, my husband died two years later of his alcoholism, never having been reunited with his children.
What I find most ironic is that in the eyes of the Japanese legal system, I would be viewed as having kidnapped my children (at one point, our local consulate informed me that I could be “detained” if I returned to Japan with the issue unresolved), while a Japanese mother who fled back to Japan with her children would be viewed as having done the necessary thing.
It is time for the Japanese legal system to join the 21st century and start to put the needs of these precious children ahead of prejudice and national pride.
Portland, OregonRead Full Post | Make a Comment ( None so far )
A Japanese woman was arrested in the United States earlier this year for allegedly violating parental custody laws and is currently undergoing judicial proceedings, the government said Friday.
In an unusual case highlighting the complications in parental rights laws in international marriages, Japanese media reported that the 43-year-old woman had been wanted after taking her 9-year-old daughter to Japan without prior consent from her ex-husband, a Nicaraguan residing in the U.S.
An official at the Foreign Ministry’s Japanese Nationals Overseas Safety Division said the woman was arrested April 7 in Honolulu — apparently while on a visit to renew her green card — and was transferred to Wisconsin on April 30, where she is currently being held.
The official declined to reveal further information, saying the woman’s family asked that her private information not be disclosed.
Citing the woman’s lawyer, media reports said the woman’s 39-year-old husband filed for divorce in Wisconsin in 2008 and won sole custody of the child in 2009, the same year the divorce became final.
However, the woman brought the girl to Japan amid the divorce proceedings in 2008 and has been wanted in the U.S. for contempt of court and violation of parental custody laws.
After returning to Japan, she filed for custody of the child at the Kobe District Court and was granted custody this March. The court also allowed the child’s father the right to see his daughter in the U.S. However, both parties immediately appealed the ruling and the case is before the Osaka High Court, according to reports.
Japan has been under pressure from other countries to join the 1980 Hague Convention on the Civil Aspects of International Child Abduction, a treaty that sets procedures for settling cross-border child custody disputes as a result of failed international marriages.
The government decided in May to sign the treaty but has yet to officially endorse the international pact which so far has been joined by 86 nations.
An official at the Foreign Ministry’s Humanitarian Affairs Division said the woman’s arrest may have been prevented if Japan had already ratified the Hague treaty.
U.S. authorities would probably have advised the man against reporting the woman to the police — a move that could hurt his chances of retrieving his child — and ask him to proceed with the case based on the provisions of the treaty.
TOKYO (Kyodo) — The Justice Ministry proposed Friday that children’s opinions be reflected when settling cross-border child custody disputes.
The idea was contained in the ministry’s draft interim proposals for domestic legislation that it is preparing for submission to a regular Diet session next year, before Japan joins an international pact related to the matter known as the Hague Convention.
Under the ministry’s draft legislation, the handing over of children to a spouse could be refused if there is a possibility that they could be subjected to violence.
If a year has passed since children were taken away and they have already adapted to their new environment or if children refuse, their hand over to a spouse could be rejected.
The cases would be examined by family courts behind-closed-doors. Under the proposal, court decisions could be appealed twice in the same way most civil cases are handled.
The ministry will solicit public comments on the interim draft via the Internet until Oct. 31.
Opinions are also being solicited regarding the Foreign Ministry’s proposal to set up a government organization to search for children in Japan entangled in cross-border custody disputes.
Japan decided in May to sign the 1980 Hague Convention on the Civil Aspects of International Child Abduction. It is the only one of the Group of Eight advanced countries yet to join the convention after Russia acceded to it in July.
(Mainichi Japan) October 1, 2011
To the next Prime Minister,
|Left behind: Parents who have lost contact with their children after divorce or separation from their Japanese spouses march through Tokyo with their supporters on Aug. 23. The demonstrators urged Japan to sign the Hague Convention on the Civil Aspects of International Child Abduction and amend its current child custody laws. Left Behind Parents Japan planned the march to coincide with U.S. Vice President Joe Biden’s visit to Tokyo. SIMON SCOTT PHOTO|
I am the cofounder of Children First (childrenfirst.jp), an NPO that focuses on children’s issues. Every three minutes another child loses all contact with one of their parents after divorce. Every seven minutes another child is a victim of school bullying. Every 12 minutes another case of child abuse is reported to protective services. Every week at least one child dies as the result of abuse.
Children First is working to overcome these issues and other problems affecting children. But we can’t do it alone. We need the help of Diet members and policymakers to change things so Japan is a better place for children.
Most people are aware of bullying and abuse. These two issues make the headlines often. But a problem I and many other parents find more alarming is that every three minutes a child loses contact with one parent due to divorce.
On March 11, more than 16,000 people died; about another 5,000 are still missing. Hundreds if not thousands of children lost at least one parent on that day. Since March 11, more than 82,000 children have lost contact with one parent due to divorce.
This is a silent tragedy that is spreading like a cancer throughout Japan. It is preventing children from reaching their full potential. It is destroying families and family values. It leaves children confused about the future and it reduces their chances of having a normal life. It leaves some parents and children to deal with unimaginable grief. It is a silent tsunami that many people don’t know about. The family courts and the Japanese legal system are allowing this tragedy to continue.
In 2006 the Supreme Court made a DVD titled “What Couples with Children Must Think About When They Live Apart.” Surprisingly, the family courts don’t show this video to parents. Quite the opposite: They hide the existence of this DVD and family court judges make rulings that go directly against the message contained in the DVD — that children need both parents to be happy. Some family court lawyers are unaware that this video exists.
Now, the average parent gets four hours of visitation per month with his/her child. This is hardly enough time to form a bond or make a difference in a child’s life. Some parents use parental alienation to destroy the relationship the child once had with the noncustodial parent.
According to the United Nations Convention on the Rights of the Child (UNCRC), children are entitled to have a relationship with both parents. If for some reason the parent and child are separated, the state (Japan) must re-establish contact with the left-behind parent. Of course, this never happens. So, the family court has failed twice. They don’t follow the advice of the Supreme Court DVD and they ignore the UNCRC, which is equivalent to a law.
I think it is time to review the rulings of judges throughout Japan and get rid of the ones who make bad rulings. I have been told by lawyers that judges sometimes don’t even look at the case files and are unprepared for what takes place in court. Bad judges need to be removed from the bench.
Mr. Prime Minister, I am asking you to take the necessary steps to remove bad judges as well as pass laws that guarantee children will have a long and meaningful relationship with both parents. Furthermore, I would also like you to pass laws that do a better job of protecting children from abuse and bullying, as well as implement better policies for reporting abuse and bullying. Teachers and bureaucrats are the key to eliminating abuse and bullying. I hope you give them the necessary tools to make a difference.
Currently, I have an active court case but that should soon change. On Sept. 13, the judge will make a ruling on my case regarding divorce and custody. If history is any indication, there is a 100-percent chance that I will lose. I plan to ride my bicycle from Kumamoto, where my court case is, to the Supreme Court in Tokyo. I will demand that family law be changed. I will stop at prefectural offices along the way and garner support from governors. I have taken eight weeks off of work for this cause. You can follow my progress on the Children First Japan Facebook Page (www.facebook.com/pages/Children-First-Japan/115396388532379) or the Joint Custody in Japan Facebook Page (www.facebook.com/oyako) and you can also find more information about my trip on my blog Children First Japan (kwbrow2.wordpress.com).
TOKYO (Kyodo) — Around 20 Japanese and Japan-based foreign parents who are facing difficulties in gaining access to their children following failed international marriages marched in Tokyo on Tuesday in seeking help from visiting U.S. Vice President Joe Biden to push the Japanese government to address the issue of child custody.
Holding banners reading “Stop child abduction” and “Why don’t we have rights to see our children in Japan?” the parents embarked on a march after holding a rally in a park in Tokyo’s Roppongi district.
At issue is child alienation and abduction by Japanese parents, as courts in Japan tend to award mothers sole custody after divorce and it is not unusual for children to stop seeing their fathers after their parents break up.
Japan recently launched preparations for joining the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which sets procedures for settling cross-border child custody disputes.
Akihisa Hirata, co-organizer of a group called Left Behind Parents Japan, said in his message to Biden, “Please urge the Japanese government to address child abduction and also establish joint parenting and joint custody.”
A male participant at the rally said, “Japanese people cannot change their behavior without a strong foreign pressure. We call for changes in the laws to realize joint custody and joint parenting, which is widely adopted in other parts of the world.”
Anthony del Vecchio, a U.S. citizen who has not seen his daughter for seven years after divorcing his Japanese wife, said before the start of the protest march, “With respect to the protection of human rights in general and children’s rights in particular, Japan lags far behind the rest of the developed world.”
“Its system of sole custody upon divorce runs contrary to common sense, sound psychological research and international norms,” he said.
The U.S. State Department lists 123 active cases involving 173 children who have been abducted from the United States to Japan, but it is “not aware of a single case in which a child abducted to Japan has ever been returned to America,” he said.
Biden is on a three-day visit to Japan through Wednesday. The issue of child custody was not apparently discussed in his meeting with Japanese Prime Minister Naoto Kan earlier in the day.
State Dept. Testifies at Child Abduction HearingSmith: Negotiate MOU with Japan Concurently with the Hague Convention…
“It is on behalf of left behind parents –in recognition of the extreme pain they suffer as victims of international child abduction, and in recognition of our own duty as the U.S. government to help bring their children home—that we hold this hearing today,” Smith said. “I believe child abduction is a global human rights abuse—a form of child abuse—that seriously harms children while inflicting excruciating emotional pain and suffering on left-behind parents and families.” Click here to read Chairman Smith’s opening remarks.
Smith, who chairs subcommittee on human rights of the Foreign Affairs Committee, said international child abduction occurs when one parent unlawfully moves a child from his or her country of residence, often for the purpose of denying the other parent rightful access to the child. “Left behind” parents from across the country, including David Goldman of Monmouth County, N.J., who Smith helped win a five-year battle to bring his son home from Brazil in December 2009, Chris Savoie, who was arrested by Japanese law enforcement when he attempted to recover his own children in 2009, and other desperate parents.
Japan is the only G-7 nation to not sign the treaty. Congress is not aware of any case where a Japanese court has issued and enforced an order to return an abducted child to the U.S. In fact, Australia, Belgium, Canada, Colombia, Germany, Italy, New Zealand, the European Union, Spain, U.K. & France have all pressed Japan to both sign the treaty and act to allow visitation, communication and a framework, or memorandum of understanding (MOU), to resolve current cases.
“I and many others urge the Obama Administration to negotiate a memorandum of understanding with the Japanese to ensure that the 123 left behind parents are not left behind a second time—this time by treaty promises that won’t apply to them,” said Smith, who traveled to Japan in February with the family of Rutherford, N.J. resident and Iraqi war veteran Michael Elias to meet with U.S. and Japanese officials. Elias’s two children were abducted with the help of the Japanese Consulate in contravention of U.S. court orders in 2008.
Kurt Campbell, Assistant Secretary of State at the Bureau of East Asian and Pacific Affairs in the State Department, testified that the unaddressed issue of international child abduction to Japan remains a serious concern for the Department of State and the United States Government.
“While the Convention will only apply to cases that arise after ratification, we continue at all levels to encourage the Government of Japan to implement measures that would resolve existing child-abduction cases and allow parents currently separated from their children to reestablish contact with them and ensure visitation rights,” Campbell said.
“We are prepared to use all necessary political and legal means necessary to facilitate contact and access for parents and abducted children,” Campbell said. “Currently the left-behind parents of children abducted to or from Japan have little hope of having their children returned and encounter great difficulties in obtaining access to their children and exercising their parental rights and responsibilities.” Click here to read Campbell’s testimony.
Susan Jacobs, Special Advisor for Children’s Issues in the Bureau of Consular Affairs at the State Department, told Smith and the human rights panel that the State Department welcomed Congressional support as it urges countries such as Korea, India and Japan to join the Hague Convention.
“The prevention and prompt resolution of abduction cases are of paramount importance to the United States,” Jacobs said. Click here to read Jacob’s testimony.
Thursday’s hearing follows the direct, emotional testimony at a May hearing of left-behind parents, who in most cases have never seen their children again after the abduction.
After returning from Brazil with abducted child Sean Goldman and his left behind New Jersey dad, Smith introduced “The International Child Abduction Prevention and Return Act of 2011”. The bill, H.R. 1940, would establish an Ambassador-at-Large dedicated to international child abduction, and office within the State Department to aggressively work to resolve abduction cases. The legislation would also prescribe a series of increasingly punitive actions and sanctions the president and State Department may impose on a nation that demonstrates a “pattern of non-cooperation” in resolving child abduction cases. In September 2010 Smith cosponsored and managed the debate in the House chamber on a similar bipartisan measure, H. Res. 1326, calling on the Government of Japan to resolve the many cases involving American children abducted to Japan. The bill passed 416-1.
Jul. 29, 2011 – 03:20PM
The United States pressed Japan Thursday to let parents see children snatched by estranged partners, saying it would not tolerate loopholes as Tokyo moves to resolve the longtime source of tension.
Western nations have voiced concern for years over citizens’ struggles to see their half-Japanese children. When international marriages break up, Japanese courts virtually never grant custody to foreign parents, especially men.
Hoping to ease a rift with allies, Prime Minister Naoto Kan has voiced support for ratifying the 1980 Hague treaty that requires countries to return wrongfully held children to their countries of usual residence. Japan would be the last member of the Group of Seven industrial powers to sign it.
Testifying before a congressional committee, senior U.S. official Kurt Campbell said that the United States was “quietly” speaking to Japan about the domestic laws that will accompany the Hague treaty.
“We will not rest until we see the kinds of changes that are necessary and we will certainly not abide by loopholes or other steps that will, frankly, somehow negate or water down” the agreement, said Kurt Campbell, the assistant secretary of state for East Asia.
Japanese critics of The Hague treaty often charge that women and children need protection from abusive foreign men. Japanese lawmakers are considering making exceptions to the return of children if there are fears of abuse.
Campbell voiced confidence that The Hague treaty already included safeguards.
He also urged Japan to give parents greater access outside of the treaty. If Tokyo ratifies the convention, it would only apply in the future and not to the 123 ongoing cases in which U.S. parents are seeking children in Japan.
“We are prepared to use all necessary political and legal means necessary to facilitate contact and access for parents and abducted children,” Campbell said.
But under questioning from lawmakers, Campbell indicated that the United States was not pushing for a separate agreement on existing abduction cases, saying that for Japan “it’s a complete non-starter.”
Representative Chris Smith, who has championed the abduction issue, pressed for an agreement on current cases. He feared that Japan’s entry into The Hague Convention would “result in lost momentum” as no children would immediately return.
“Delay is denial, and it does exacerbate the abuse of a child and the agony of the left-behind parents,” said Smith, a Republican from New Jersey.
Smith said Japan has become known as a haven for international child abduction. “Tragically, Japan has become a black hole for children whose Japanese parent—or in some cases non-Japanese parent—decided not to abide by the laws of the United States and rather to run to a jurisdiction where they would not have to share custody, or even permit visitation of the child by the child’s other parent. Japan has historically been complicit in these abductions, offering protection without investigation.”
Smith said Japan’s recent announcement that it will finally sign the Hague Convention on the Civil Aspects of International Child Abduction is welcomed but pointed out that the Convention, by its own terms, will only apply to future cases.
“If and when Japan ratifies the Hague, and I hope they do, such action, unfortunately will not be sufficient to address the existing abduction cases,” said Smith, who led a human rights mission to Japan this past February and met with government leaders as well as American parents blocked from seeing their children in Japan. “A Memorandum of Understanding between the United States and Japan is urgently needed to ensure that families are reunited and left behind parents are not left behind again.”
During the debate on his a amendment, Smith spoke of the current abduction cases involving Japan including the case of New Jersey resident and former Marine Sgt. Michael Elias, whose children Jade and Michael were abducted to Japan by his estranged wife in 2008. He has not held them since or been allowed any communication with them in over a year.
“Additionally, my amendment calls on the Secretary of State to take any and all other appropriate measures to enable left behind parents direct access and communications with their children wrongfully removed to or retained in Japan. These children must be allowed to have a relationship with their American parent—the arbitrary deprivation they currently suffer is child abuse,” Smith said.
The House Foreign Affairs Committee unanimously adopted the amendment demanding an MOU as part of legislation controlling foreign aid. The bill is expected to move to the House Floor.
In September 2010 Smith cosponsored and managed the debate in the House chamber on a similar bipartisan measure, H. Res. 1326, calling on the Government of Japan to resolve the many cases involving over American children abducted to Japan. The bill passed 416-1.
Smith also has been working to push Congress and the Administration to better address international child abductions in Japan and elsewhere. After returning from Brazil in Dec. 24, 2009 with abducted child Sean Goldman and his left behind New Jersey dad who had been deprived of his son for five years, Smith introduced “The International Child Abduction Prevention and Return Act of 2011”, H.R. 1940, and is working for passage of the bill.
It’s a parent’s nightmare: a couple splits up, and one parent abducts the child or children and flees overseas.
There has been a spate of cases where children have been taken to Japan.
Parents whose kids were taken there without their consent say the Australian Government is failing to prevent future abductions.
They say Japanese consulates are freely issuing new passports to parents who want to abduct children.
Queensland university lecturer, Matthew Wyman, says about two-and-a-half years ago, his Japanese wife took his two young sons to Japan and never returned.
After a long battle, he finally organised a divorce in December last year.
“My ex since then has reneged on all the promises, including changing their names – they now have her name,” he said.
“The Australian Child Support [Agency] are now involved and basically forcing myself, as well as fathers, to pay child support to the abductors of our children.”
Japan is not yet a signatory to the Hague Convention on cross-border custody.
As a result, overseas parents have no recourse if their child is abducted to Japan.
Already struggling emotionally, Mr Wyman says when he spoke with Australia’s Child Support Agency, his situation got worse.
“I called them up and I politely explained the situation. I explained that my wife had abducted the children and I couldn’t understand why if someone abducts your children and then an Australian citizen is forced to pay child support,” he said.
“Her response was ‘well, I don’t care if your children have been abducted. I don’t care if you have to pay child support. I don’t care if you can’t see your children, there are many fathers who cannot see their children. You will pay up or else. Are you a deadbeat father?’
“And I literally fell of my chair. I couldn’t believe it.”
According to Mr Wyman, the Commonwealth Ombudsman’s office investigated his complaint about that conversation, but told him that they were unable to find the recording of that particular phone call.
Grown men in tears
Mr Wyman says his pleas for assistance have been bounced between Australian government agencies and ministerial offices.
Instead he decided to help himself, by forming a support group with other parents in a similar situation.
“We had a father from Sydney, Toowoomba, the Gold Coast,” he said.
“It was very emotional for a lot of fathers, we had grown men here actually in tears, you know, just, retelling their story about not being able to see their children.
“[For] some of the fathers, the children were abducted when they were babies, and … a lot of these fathers [had] the realisation that their children don’t even know they exist.”
Teacher and father, Scott Beckingsale, drove from Adelaide to be there after his Tiger Airways flight was cancelled.
He says his ex-partner abducted his half-Japanese daughter when their child was three months old.
“One day I came home from work and she had just gone back to Japan,” he said.
“After the child was born her parents came to visit us and her father hated Australia, absolutely hated it.
“After they left she wanted to get a passport but she assured me it was just for the registering of our child as a Japanese dual citizen.
“I was a bit suspicious but, when you’ve got a new child and there’s postnatal depression, you try to give trust to the partner.”
He says he too has been ordered to pay child support by the Australian Government.
Both men are highly concerned by the situation of a third man in their group.
“He is going through an emotional rollercoaster because he’s so scared that his wife can just take off with the children,” Mr Wyman said.
“He’s got court orders and she’s had to surrender her passports.
“But what has happened in the past, a Japanese mother will go to the Japanese consulate, change the children’s name, and the Japanese consulate will freely give out the new passports to the Japanese mother.”
The group say they want the Australian Government to tighten border checks to prevent future incidents and also not require parents whose children have been abducted to pay child support.
The ABC contacted the Child Support Agency, the Commonwealth Ombudsman’s Office, the Japanese embassy and the Japanese consulate in Brisbane.
Human Services Minister Tanya Pilbersek and Families Minister Jenny Macklin said they were aware of the matter and are looking into it.Read Full Post | Make a Comment ( None so far )
Modern Tokyo Times (Part 1)
Child abductions unfortunately occur all over the world. And while some of the cases are solved, a majority of the cases are not, even when the parent knows who the abductor is – the other parent. A discouraging phenomenon in Australia has been parents, mainly Japanese, abducting the child or children back to Japan. The Australian Embassy located in Japan said in 2010, there were 13 abductions to date.
Despite Japan and Australia having close diplomatic and economic relations, getting these children back is no easy task. What is most unfortunate is the fact that the Australian government has been extremely unhelpful to these left-behind parents. Numerous Australian left-behind parents have not only been left-behind from their children, but believe their government has left them behind as well.
Matt Wyman, an Australian national, whose Japanese wife abducted their two sons to Japan in 2008, said that the Australian government has provided no assistance to date. Furthermore, the judges on a number of these left-behind parent cases were ineffectual and caused the parent to lose all contact with their abducted children. Parents like Matt Wyman have spent thousands of dollars on necessary legal fees only to see no progress. To make matters worse, his Japanese wife is now demanding child support while residing in Japan in which the Australian government simply enforces, although Matt Wyman’s children have been abducted.
Even though the Japanese government signed the United Nations Convention on the Rights of the Child in March 1994, which provides both parents access to their children, current Japanese laws only allow the Japanese parent to make the final decision regarding if the left-behind parent will receive visitation rights. Currently, Japan does not provide reciprocation to Australian court orders.
In Japan, the idea of “shared custody” is a foreign concept and after a divorce, custody is granted to one parent only. This includes children illegally abducted from the national home of origin. Furthermore, Japanese law clearly states that if the Japanese parent that abducted the child/children dies, the illegally abducted child/children do not go to the parent left behind or another foreign relative. Instead, they are given to the Japanese grandparents.
In the last 55-plus years, there has yet to be a case where a child has been returned to the parent after being abducted to Japan. Therefore, Japan is seen as a safe haven for the abduction of children. In fact, even non-Japanese parents flee with abducted children to Japan and exploit the system there for their own benefit.
Australia is one of the most beautiful locations in the world. There is so much to see and do that it is never a dull moment. However, the beauty of the country is marred by this current situation. Presently, like the Federal Bureau of Investigation (FBI), the Australian Federal Police have been unable or unwilling to extradite parents from Japan who abducted children. Australia needs to do much more to protect all left-behind parents and inhibit further parental abductions to Japan and determine a concrete method to get children back to their left-behind parents.Read Full Post | Make a Comment ( None so far )
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