BOXER, LAUTENBERG, KERRY, LUGAR, INHOFE JOIN COLLEAGUES TO INTRODUCE RESOLUTION CONDEMNING INTERNATIONAL PARENTAL CHILD ABDUCTION
H.R. 3240 International Child Abduction Prevention Act of 2009, if passed will impose economic and security sanctions on non-compliant countries. To read the report click HR 3240 then download the PDF.
The purposes of this Act are to:
(1) protect United States children from the harmful effects of international child abduction and to protect the right of children to exercise parental access with their parents in a safe and predictable way, wherever located;
(2) provide parents, their advocates, and judges the information they need to enhance the resolution of family disputes through established legal procedures, the tools for assessing the risk of wrongful removal and retention of children, and the practical means for overcoming obstacles to recovering abducted children;
(3) establish effective mechanisms to provide assistance to and aggressive advocacy on behalf of parents whose children have been abducted from the United States to a foreign country, from a foreign country to the United States, and on behalf of military parents stationed abroad;
(4) promote an international consensus that the best interests of children are of paramount importance in matters relating to their custody, and that it is in the best interest of a child to have issues of custody determined in the State of their habitual residence immediately prior to the abduction;
(5) provide the necessary training for military officials and training and assistance to military families to address the unique circumstances of the resolution of child custody disputes which occur abroad, or occur when a parent is serving abroad;
(6) facilitate the creation and effective implementation of international mechanisms, particularly the 1980 Hague Convention on the Civil Aspects of International Child Abduction, to protect children from the harmful effects of their wrongful removal and retention; and
(7) facilitate the compliance of the United States with reciprocal obligations contained in the Hague Convention regarding children wrongfully removed to or retained in the United States.
The Yomiuri Shimbun
When international marriages fall apart, how should cross-border disputes over child custody be handled?
The government is in the process of formulating legislation in preparation for joining the Hague Convention on the Civil Aspects of International Child Abduction, which sets international rules for settling such disputes.
If Japan becomes a signatory to the convention, perhaps as soon as next year, it should be lauded as a step forward. However, in drawing up the legislation, the government must take care to ensure the rights of Japanese people are not being unilaterally compromised.
The treaty bans a parent from taking overseas a child aged less than 16 without the other parent’s permission after their marriage fails.
If a parent demands the return of a child taken without permission from their country of residence, signatory countries are obliged in principle to help resolve the issue.
Japan being urged to join
This is based on the thinking that it is desirable to settle custody disputes in courts in the country of original residence. More than 80 nations have signed the convention. The United States and European countries have urged Japan to join.
About 100 cases have been reported in the United States in which divorced Japanese spouses returned to their homeland with their children. Because Japan is not a signatory to the convention, the foreign parents find it difficult to see their children, let alone take them back to their own country.
Because of this, U.S. and European judicial authorities ban divorced Japanese parents from taking their children home. Japanese mothers who return home with their kids without the permission of their former husbands are often regarded as “abductors” in these countries.
This problem goes both ways: If children with a Japanese parent are taken overseas without permission, the Japanese parent cannot expect to get any help from the country of their former husband or wife.
If Japan joins the treaty, these disputes will be settled by the two countries concerned based on international rules.
The treaty stipulates nations can refuse to return children if they have been physically or mentally abused, and in some other circumstances. But it makes no mention of domestic violence between spouses.
Domestic violence fears
Japan had long resisted joining the pact because many Japanese mothers had returned home with their children after being violently abused by their former foreign husbands. These mothers have strong concerns about allowing their children to return to such an environment.
The procedure to decide whether to return a child or children starts at a court in the country where they reside. The government is considering incorporating into a related bill the right to refuse a request to return a child if there are fears they could become victims of domestic violence. This is a sensible move.
After signing the treaty, the Foreign Ministry will be responsible for specifying the whereabouts of children brought to Japan and helping with court trial procedures. This will involve domestic administrative work the ministry is not accustomed to doing. Cooperation among government organs to smooth the process will be indispensable.
Many Japanese mothers feel anxious that trials over custodial rights will be held at a court in their child’s original country of residence. Japanese diplomatic missions abroad will need to introduce them to local lawyers and provide other support.
(From The Yomiuri Shimbun, June 14, 2011)Read Full Post | Make a Comment ( 1 so far )
The Kan Cabinet on May 20 endorsed a policy of Japan joining the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which sets procedures for settling cross-border child custody disputes.
The administration hopes to submit related bills and a request for approval of Japan’s joining the convention to the Diet by the end of 2011. If Japan joins the convention, it will not be applied retroactively.
A total of 84 countries, mainly in the Americas and Europe, are parties to the convention, which went into effect in 1983. Among the Group of Eight industrialized countries, Japan and Russia have not joined the convention. The United States and European countries have urged Japan to join, and Prime Minister Naoto Kan announced Japan’s decision during a G8 summit held in Deauville, France, on May 26-27.
The convention is typically applied to cases in which a divorced parent removes his or her child under the age of 16 from his or her country of habitual residence and the left-behind parent requests the child’s return, alleging that he or she has been wrongfully removed.
Under the convention, the left-behind parent makes the request through his or her country’s “central authority” to the central authority of the abductor parent’s country.
The central authority of the abductor parent’s country has a legal obligation to locate the child and take all appropriate measures to obtain the voluntary return of the child. The primary aim of the convention is to secure the prompt return of children wrongfully removed from their country of habitual residence.
Exceptions to this rule include when there is a preponderance of evidence that the left-behind parent had consented to the removal of the child; when there is a preponderance of evidence that the left-behind parent was not exercising custodial rights at the time of removal; or when there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
A court in the abductor parent’s country decides whether the child should be returned if the two parents fail to agree on a voluntary return of the child.
Once it is decided where the child will live, there is another round of court proceedings in that country to determine who has parental authority. As countries have differing systems for determining this, resolution of the issues can be difficult.
Roughly 1,300 requests for the return of children are filed worldwide annually.
According to data released in 2010 by the Netherlands-based convention secretariat, children were returned voluntarily without the involvement of courts in 45 percent of the cases; children were returned on the basis of court orders in 30 percent of the cases; and courts rejected requests for the return of children in 20 percent of the cases.
Referring to the Kan administration’s decision to join the convention, Chief Cabinet Secretary Yukio Edano said, “It is desirable for our country to be consistent with international standards.”
Because the number of international divorces involving Japanese nationals is on the rise, the decision that Japan should join the same legal framework as other countries is understandable.
According to the health and welfare ministry’s population dynamics survey, there were some 4,100 international marriages involving Japanese nationals in 1965. This number topped 10,000 in 1983 and reached a peak of 44,701 in 2006. After that, it started to fall, dropping to 34,393 in 2009.
The number of international divorces involving Japanese nationals topped 10,000 in 1998. It leveled off at around 15,000 from 2002 to 2005, but climbed to 19,404 in 2009.
Many Japanese mothers allege that they had no alternative but to take their children and return to Japan in order to escape domestic violence.
Such allegations have made the Japanese government hesitate to join the convention, but as long as Japan is not a party to the convention, it cannot legally settle these cases or pursue cases in which non-Japanese parents have removed their children from their Japanese homes and left the country.
In working out related domestic bills, the general principle for the government and the Diet should be to give priority to protecting the well-being of the children involved.
Under the outline of the domestic bills, the Foreign Ministry would serve as the central authority for locating children who have been removed wrongfully by one parent and for working toward their voluntary return.
Parents who have removed their children from foreign countries would be able to refuse to return the children if they could prove that they or their children were subjected to domestic violence, or that they faced criminal prosecution in the country where they formerly resided.
Some Japanese parents harbor concerns about Japan joining the convention. They may be worried about the possibility of being separated from their children or about how to establish that they are victims of domestic violence in the event that they have to go to court. The government should consider how to help parents who may become involved in child-custody disputes.
As Mr. Kenji Utsunomiya, head of the Japan Federation of Bar Associations, said, the government should enumerate possible issues and have experts fully discuss them from the viewpoint of protecting the well-being and interests of children. It also should provide necessary information and support to Japanese parents living abroad.
After years of foreign pressure, Japan finally decided Friday to sign a treaty to settle cross-border child custody disputes, but a heated debate is expected to continue as proponents of the pact hope the move leads to the formation of a system that will guarantee children’s access to both parents after a divorce.
Japan has long been labeled a “haven for parental abductions” and a “black hole” for children removed internationally, by foreign parents unable to see their children because they have been taken to Japan by their former Japanese spouses.
In Japan, the tendency is for the courts to award mothers sole custody of any children after divorce.
Among the Group of Seven countries, only Japan has not signed the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which sets out the rules and procedures for promptly returning children under 16 to the country of their habitual residence in cases of international divorce. The pact currently has 84 parties.
The outcry from foreign parents separated from their children by failed marriages with Japanese has prompted 32 nations to jointly press Tokyo to join the treaty.
The government is now planning to submit bills by the end of this year to craft the legislation needed to accede to the convention.
But the move won’t solve all of Japan’s problems. Joining the pact will only provide a solution to parents abroad. Cases of “parental abductions” that occur in Japan, meanwhile, whil be left untouched.
Also, the pact’s reach is unlikely to be retroactive, meaning it will only deal with future cases, in principle.
Out of concern that accession to the pact could endanger Japanese parties who have fled abusive relationships, Tokyo is considering stipulating in the domestic law that children will not have to be returned when they and their parent have suffered abuse by the other parent.
Japan is also thinking about exempting cases in which the Japanese parent could face criminal prosecution in his or her country of habitual residence and in which the former spouse abroad is deemed to have difficulty taking care of children.
Critics of the pact are calling on the government to carefully address the issue of abuse during the legislative process. Kazuko Ito, a lawyer who has opposed the signing of the convention, said Japan should specify the conditions for exempting the return of children when it drafts the domestic law.
Parents whose former spouses have taken their children — both Japanese and non-Japanese — are also carefully watching the process to see if it will lead to a change in their situation.
Such parents and their supporters have been lobbying for Japan to accede to the pact in the hope that it will change the customary situation in Japan, where it is not unusual for children to stop seeing their fathers after their parents break up.
Thierry Consigny, an elected member of the Assembly for French Overseas Nationals for Japan and North Asia, who has been supporting around 40 French parents officially recognized by Paris as having been separated from their children in Japan, said he hopes Tokyo will not unilaterally adopt criteria for recognizing cases of abuse.
“The 84 parties to the Hague Convention have their own criteria in identifying abuses, but they share international standards and make decisions on a case-by-case basis,” he said. “We want Japanese courts to heed French standards as well in recognizing abuse cases to make a balance.”
Consigny also said he expects joining the Hague Convention, which calls for securing children’s access to both parents, will eventually lead to more exchanges between children and their noncustodial parents in Japan, which in his opinion will promote burden-sharing between divorced parents.
“The current sole custody system in Japan puts too much burden on child-rearing parents,” he said. “Many single mothers who have abducted their children cannot enjoy private life as they bear heavy responsibility as breadwinners and are afraid of the possibility that their kids could be taken by exes.”
France has adopted a joint custody system partly to lessen the child-rearing burden on working mothers by actively involving fathers, he said. Many of the countries that have pressured Japan — the 27-member European Union, the United States, Australia, Canada, Colombia and New Zealand — have such systems.
Mitsuru Munakata, a separated Japanese father who has been lobbying for a joint custody system in Japan, urged the government to address the plight of parents and children who cannot see each other in Japan while it prepares to join the Hague Convention.
“Honoring the spirit of the convention, the government should address the problems of separated parents and children in Japan. Otherwise, there is no meaning in signing the treaty that only deals with cross-border disputes because domestic cases would be discriminated against,” he said.
Munakata said without real changes in the domestic situation, Japan’s move to sign the pact will only be viewed as a way of dodging international pressure over child custody rows. He said in Japan, parents who do not have custody of their children are only allowed to spend two hours per month with their children on average.
Steve Christie, an American founder of a parental abduction victims association, said that his son, now 16, was abducted by the boy’s Japanese mother when he was 10 and that a Japanese family court suggested Christie see his son only three times a year during vacations for a total of 36 hours.
As of January this year, the United States recognized 100 active cases of parental abduction to Japan involving 140 children. In addition, Washington is aware of 31 cases in which both parents and children live in Japan but one parent has been denied access.
Another American parent who has been lobbying the governments of both Japan and the United States to address the matter, said on condition of anonymity that the official figures represent only the tip of the iceberg, calling for efficient enforcement mechanisms to ensure access between separated parents and children.
In 2009, 146,408 couples with children under 20 were divorced in Japan, including couples composed of Japanese and foreigners, according to the latest government statistics. The number of divorces among Japanese and their foreign spouses reached about 19,404 cases that year.
Of the 146,408 divorces, 13.2 percent were cases in which fathers took sole care of children, while 83.2 percent were cases in which mothers did so. Only 3.6 percent involved both parents in child rearing.
By Lucy Birmingham / Tokyo Monday, Mar. 07, 2011
Click here to find out more!
Like any loving father, Christopher Savoie just wanted to do the best thing for his two kids. In August 2009, his Japanese ex-wife broke U.S. law and abducted their children from his home in Tennessee, moving them to Japan. But when Savoie went to get them weeks later, he was arrested. It didn’t matter that he had legal custody in both countries; that she had violated a U.S. court order or that there was a U.S. warrant issued for her arrest. Nor did the fact that Savoie was a naturalized Japanese citizen and fluent in Japanese make a difference. After 18 days in jail, Savoie returned to the U.S. empty handed and broken hearted. A year and half has now passed, and he is still unable to see his son and daughter, now 10 and 8.
Despite all this, Savoie’s ex-wife is beyond the reach of international law. Japan has not signed the Hague Convention on the Prevention of Child Abduction, an international accord adopted by 84 nations and aimed at returning abducted children back to the country from which they were taken. Along with an increasing number of international marriages and divorces, child abductions to Japan — the only G7 nation that has not signed the treaty — have been on the rise. In 2009, the State Department ranked Japan at the top of its list in reported abductions from the U.S. among non-signatory nations. “It is our understanding that no U.S. citizen child abducted to Japan has been returned to the United States,” says Paul Fitzgerald, a U.S. Embassy official in Tokyo. The issue could tarnish U.S.-Japan relations; as Assistant Sec. of State Kurt Campbell told reporters during a trip to Tokyo in February, “The situation has to be resolved in order to ensure that the U.S.-Japan relations continue on such a positive course.” (See pictures of Japan and the world.)
Japan’s antiquated domestic family law complicates matters. In a Japanese divorce, child custody is awarded to only one parent — typically the mother. Visitation can be negotiated but there is no legal enforcement and agreements are often broken. In Japan, it’s not unusual for the non-custodial parent to lose contact with their child, and domestic abductions, when they do occur, are often ignored by the police as a family matter. It’s a devastating scenario for a growing number of fathers residing in Japan — both Japanese and foreign — who have few legal rights to see their children. “Clearly, the best legal scenario is for the children is to be here in the U.S. where each parent would be guaranteed visitation,” writes Savoie by email.
International pressure for Japan to make a change has been mounting. Over the past year, several ambassadors from embassies in Tokyo have met with high-level government officials to urge Japan to sign the convention. A Japanese government panel was set up in January to study the pros and cons, but opposition remains firm at most levels. Japanese lawmakers are worried the Hague Convention does not properly take into account past cases of domestic abuse in demanding a child’s repatriation, or a child’s own right to choose where they live. “This is why Switzerland tried to amend the treaty, even though it is a signatory,” explains Kensuke Ohnuki, a Tokyo attorney who has represented several women who have abducted children from foreign countries to Japan. “They failed. So instead, they made their own new law which enables the Swiss court to refuse the return of a child when it’s against the child’s will.”
On Feb. 22, the Japan Bar Association issued similar Hague recommendations to the government, including a guarantee in domestic law that children not be returned to their country of residence if they had been subjected to abuse or violence. Left-behind parents, including Christopher Savoie, have said the recommendations are draconian and anti-joint custody, in part because abuse is both difficult to prove and is commonly cited as one of the main reasons for abduction.
One of Ohnuki’s clients, who uses the alias Keiko, says she left the U.S. with her child because she discovered her husband was abusing their son. “There were no obvious physical marks so it would have been impossible to prove in court,” Keiko explains tearfully. After consulting a therapist and an attorney in the U.S., she feared getting sole custody as a Japanese citizen would be nearly impossible. “When we were in Japan, my son told me he feels safe, far away from his father… I didn’t really want to leave the U.S. I had a good job and many friends. But I wanted to do what was best for my son.” Keiko is now one of about 50 members of the Safety Network for Guardians and Children, a support group for women who have abducted their children to Japan from various countries. (Comment on this story.)
Finding a internationally recognized legal resolution to cases like Keiko’s will not be easy. But in the meantime, Japanese mothers living abroad who have no intention of removing their children from their families are also beginning to be affected by the problem. Jeremy Morley, a U.S. attorney specializing in Japanese child abductions says that foreign courts are “increasingly ordering Japanese mothers living overseas not to take their children to Japan even for a family visit because of Japan’s status as a renowned haven for international child abduction.”
A winning diplomatic strategy will need teeth to make a difference for everyone involved. “The mantra now is ‘Japan sign the Hague’, but that’s not enough,” U.S. Rep. Chris Smith said during a recent trip to Tokyo. The Republican New Jersey congressman, who is also the chairman of a subcommittee overseeing human rights issues, is pushing for a bill that would establish an Office of International Child Abductions within the U.S. State Department to handle cases like these and discuss sanctions against uncooperative nations. “I don’t know what the answer is,” says Keiko. “But we need to find a solution that’s in the best interest of the child.”Read Full Post | Make a Comment ( None so far )
When an international marriage falls apart, heartbreak can arise when one parent flees to their home country with their child or children without the other’s consent. In Japan, which
has not yet ratified the Hague Convention on the Civil Aspects of International Child Abduction, such cases are the focus of intense debate.
The United States and Europe are ratcheting up the pressure on Japan to ratify the Hague Convention, which dictates the return of children to their original country of residence.
What kinds of situations are occurring, and what precautions should people take before marrying? We collected people’s experiences and words of advice.
* * *
“I was just in time,” said a single mother, 37, living in Tokyo, with a sigh of relief.
In 2006, she met and married a French man while she was working at a company in the United States.
However, on top of refusing to work, he was extremely violent to her at home, and declared he would not take care of their child. She decided to move out, taking her 2-year-old son to Japan in 2008 after she found a job at a foreign-owned company.
Due to the cost and bother involved in divorce procedures, she decided to wait for her relationship with her husband to fade away.
But one day, she started receiving numerous e-mails and phone calls from him in which he threatened to have her thrown in jail as an abductor if she did not return their child.
Her lawyer warned her that Japan was moving toward ratifying the Hague Convention, which could mean that her child might be taken back by her husband. She quickly filed for a divorce through Japan’s family court system.
As the woman’s husband would not divulge his contact details, he was consequently regarded by the courts as a missing person. That led to her being granted 100 percent custody of her son, and her divorce was finalized in 2010.
She had also registered her marriage in France, so she spent six months going through that country’s divorce application procedure via the French Embassy.
In the case of another woman in her 30s who got married in a different country in Europe, her husband was abusive to both her and her child. She fled to Japan five years ago, but says, “I can’t give my name because I’m afraid my child will be taken back.”
A 50-year-old woman who married an American man in Japan subsequently divorced him in 1998 because he made no financial contribution to their living expenses.
He gave up custody rights to their two children, aged 2 and 5 at the time, on the grounds that they would be raised in Japan.
However, the man later took the children to the United States without her permission. The woman felt dismayed, because she “had taken care of them 90 percent of the time.”
When she tried to meet her children in the United States, she was arrested by the police for disorderly behavior by a parent with no custody rights.
Following that incident, the woman relocated to the United States so she could fight for custody in court. Her legal struggle has lasted nine years.
Recently, her children’s wish to live with her has been recognized, and she is expected to be granted joint custody of her children in the United States.
“If Japan had ratified the Hague Convention, it wouldn’t have been necessary for me to chase them all the way to the United States,” the woman says.
The Hague Convention states that children taken overseas by one parent without the consent of the other must be returned to their country of previous residence.
If a child’s whereabouts are unknown, signatory countries must assist in tracking the child down. However, the convention cannot be applied retroactively to parents and children who moved overseas before it was ratified.
In contrast to Japan, where one parent loses custody rights after divorce, it is common in Europe and the United States for joint custody to be granted, where both parents retain responsibility for a child’s upbringing.
The proportion of custody held by each parent is always decided in court.
In Japan, marriages and divorces are finalized after the necessary documents are submitted. In other countries, the process varies, and it is necessary for parents to fulfill the requirements of the relevant country.
Ministry of Health, Labor and Welfare statistics for 2009 showed there were 34,000 marriages where one spouse held foreign citizenship, representing a sixfold increase over the past 40 years.
According to the Foreign Ministry, inquiries received as of January from foreign governments about children abducted to Japan had risen to 100 from the United States, 38 from Britain, 37 from Canada, and 30 from France.
Former United Nations staffer Etsuko Tsukagoshi, 37, who is married to an American and wrote the book “Cross-Cultural Marriage 101″ (Kokusai Kekkon Ichinensei), says: “International marriages take time to rectify once they turn sour. I advise people to make adequate preparations, such as thoroughly studying the laws of their future spouse’s home country.”
Lawyer Mikiko Otani, an expert on international law, gives the following advice: “When you live overseas as a foreigner, you are inevitably in a weak position because of the differences in language and each country’s systems. I’d like people to make themselves aware of the differences with Japan, and to find information from the country itself. If you intend to take flight back to Japan because of violence from your husband, first seek protection from the local police and women’s shelters, and guidance from local specialists. They can also help you to secure evidence and provide necessary advice.”Read Full Post | Make a Comment ( 1 so far )
171 Abducted American Children Held in Japan Smith Calls on Obama Administration to Dramatically Alter Strategy Regarding ‘Left Behind Parents’
At a Capitol Hill hearing, Rep. Chris Smith (NJ-04), the chairman of the House Foreign Affairs subcommittee with immediate jurisdiction on global human rights, questioned Secretary Hillary Clinton on the Obama strategy and later said the Administration is making a strategic mistake in focusing first on pushing Japan to sign an international treaty which is not retroactive and will not itself help children who have already been abducted and remain separated from their American parent.
“All of us of course want Japan to sign the Hague Convention on the Civil Aspects of International Child Abduction,” Smith said. “But, as you know, that treaty will not solve the current cases. What is the Administration’s plan to resolve the current cases?” Smith asked.Click here to watch video.
Smith, who supports the signing of the treaty, pointed out that the treaty and a separate memorandum of understanding resolving current cases must be equally supported and achieved. He argues that the U.S. government has a duty not only to future Americans who would benefit from the Hague Convention, but “we have a duty to the current American children and American parents who suffer daily, deprived of each others’ love and support,” he said.
Smith, having just returned from a human rights mission to Japan, said that country has become a destination country—a haven—for international child abduction.
“There are at least 171 children who are being arbitrarily denied a relationship with their American parent and 131 brokenhearted parents worried sick about their children,” Smith said.
In response, the Secretary said she believes that if Japan signs the treaty the U.S. will have a stronger argument on the pending cases. Something she argued would “open up more possibilities.”
“The Secretary’s response was disappointing and naïve,” said Smith who last year authored legislation to strengthen the U.S. response to the taking of American children. Among other provisions, Smith’s bill, which he will reintroduce, prods the State Department to be more forceful with treaty countries as well as those, like Japan, that have not yet signed on.
“The U.S. must make it clear, government to government, that Japan has an obligation to work now to solve these current abduction cases, many of which occurred in direct contravention of American court orders barring the child’s removal from the U.S.,” Smith said. “These American parents and their children have suffered too long, and to leave them behind again is unacceptable.”
Congressman Chris Smith asks questions to Secretary Clinton concerning international child abduction to Japan. Secretary Clinton talks about the cases (denial of access with in Japan and abductions to Japan). Click on the link to watch the video.Read Full Post | Make a Comment ( None so far )
Solving parental child abduction problem no piece of cake Carving out Hague caveats could halt the return of any kids snatched to Japan
The Way of Cake is mysterious and paradoxical. A master of the Way can make his neighbors feel they have filled themselves with tasty cake without ever cutting off a piece. The Way allows its disciple to step outside the boundaries of rational thought by partaking of cake while continuing to possess cake.
The Zen of having your cake and eating it too can sometimes seem to be a feature of the Japanese legal system. The rule of law applies, though it is sometimes hard to know what the law actually is. There is a Constitution that protects people from the government — except when the government finds this inconvenient — as well as a criminal justice system founded on the presumption of innocence, but which manages to find pretty much everyone guilty anyways (because prosecutors only ever prosecute people who are actually guilty, you see).
Yet it is in Japan’s most recent responses to growing pressure to join the Hague Convention on the Civil Aspects of International Child Abduction that the Way of Cake may be demonstrated in its purest form.
It has always seemed highly likely (to me, at least) that Japan will eventually submit to foreign pressure and join a treaty regime that effectively represents the international community’s consensus on how cross-border child custody disputes should be decided: in the child’s country of habitual residence. At the same time, it has also always seemed unlikely that signing the treaty will result in children who have been abducted to Japan by Japanese parents actually being returned to their foreign homes. The Japanese civil justice system lacks the tools to enforce a return and, probably more to the point, it is unlikely to ever be in the interests of any Japanese judge, cop or other bureaucrat to be responsible for a crying child being taken away from a weeping Japanese mother in any particular case. The rule of law is one thing, but Japanese officialdom is not short on cake aficionados.
So it has not been too surprising to read recent news reports that the government is considering signing the convention while at the same time amending its domestic laws to ensure that children are not returned if there are concerns about domestic violence. The Japan Federation of Bar Associations (JFBA) also recently issued a formal opinion that included similar recommendations, as well as suggesting that children should not be returned if it would result in the abducting parent being subject to prosecution in their home country (the U.S., Canada and other countries have criminal penalties for parental child abduction). This would mean that in addition to the civil trial procedures (which should include appeals, according to the JFBA) used to return children in Hague Convention cases, it might be necessary to negotiate nonprosecution agreements with home country authorities in some instances.
Whatever legislation is used to implement the Hague Convention, it is hard to imagine that it will not also include a catch-all “other” caveat that will provide additional excuses for nonreturn in just about any situation. Even without the provision, the domestic violence exception alone will probably be enough to ensure that Japan fulfills its duties under the convention in terms of appearances and process, without actually accomplishing any of the goals the treaty is supposed to achieve in terms of substance.
To be fair, domestic violence is an issue that some commentators assert is not dealt with adequately under the Hague Convention in its current form, and I am certainly not suggesting that it is not a problem in cross-border — or any — marriages. Yet as a matter of law and judicial process, exceptions drafted around claims of domestic violence are likely to suffer from the same evidentiary and other practical constraints the convention is intended to address in the case of child custody decisions. In both situations, factual determinations are usually best made by courts in places where school officials, social workers and other potential witnesses are likely to reside, and where other relevant evidence is likely to be located. This is the child’s country of habitual residence under the Hague Convention, and logic suggests that claims of domestic violence or child abuse should also be adjudicated by courts where the conduct allegedly took place. This logic is even more compelling if the claims of violence are linked to a child custody dispute, and if the conduct in question also constitutes a criminal offense, as is often the case in many countries.
Whatever exceptions are provided for in Japanese law, as an evidentiary matter it is difficult to see how Japanese courts would decide whether to apply them except based on allegations by the Japanese victims, with the foreign “aggressor” being put in the position of having to prove a negative, over linguistic and geographical barriers. Unless Japanese courts are willing to start with a presumption that parents claiming abuse are lying (a cruel result for those actually fearing for their lives or those of their children), the safest thing for judges to do in any particular case will be to simply accept the claims at face value and grant the exception.
Japanese judges will be aided in this task by Japanese law, which defines spousal violence as including not just “bodily harm” but “words and deeds of one spouse that cause equivalent psychological or physical harm to the other” (this is from the Japanese government’s translation of Article 1 of the Act on the Prevention of Spousal Violence and the Protection of Victims). This already broad definition is further expanded by government publications that go so far as to include “yelling” and “ignoring” as types of domestic violence. Child abuse also is defined as including “words or conduct which cause a child significant psychological harm” (my translation of the relevant portion of Article 2 of the Child Abuse Prevention Act, for which a government translation is not yet available), though even this expansive definition is apparently not broad enough to cover abduction from abroad or the parental alienation that often follows.
To the extent that marital breakup is pretty much always emotionally traumatic for everyone directly involved, the unsubstantiated Japanese media trope about all cases of child abduction to Japan involving Japanese women fleeing from violence or abuse abroad can be said to be true: It will always be possible to find some sort of “psychological harm” that can be attributed to broadly defined violence or abuse if necessary.
However the law is written, it will likely serve as a message to Japanese living abroad that so long as they have the right story when they get off the plane with the children, they do not have to worry about a Hague Convention return order. Whether their story is legitimate or not (and I am certainly not suggesting that all claims of violence are or will be fabricated) will be beside the point — lawyers and well-intentioned bureaucrats will provide advice as to how stories should be scripted to ensure that an exception applies.
What will be interesting to see is how the law and Japanese judges deal with the situation where child custody issues and allegations of domestic violence have already been dealt with in a foreign court. If the law includes provisions calling on Japanese courts to give weight to foreign proceedings (as one hopes it would), it could have the effect of actually encouraging abduction before a foreign court has a chance to deal with any of the issues. Forum-shopping (trying to have your case resolved in the most advantageous court possible) through pre-emptive abductions is of course already a common problem in international abductions, but it is one of the things that joining the Hague Convention is supposed to discourage and remedy rather than induce.
Putting all this aside, an obvious response to concerns over domestic violence and the Hague Convention is that the treaty has been around for three decades and has been signed by dozens of countries despite domestic violence being a universal problem. There is, simply put, no “uniquely Japanese” set of issues here that involves prolonged navel-gazing over issues that are incomprehensible to foreigners.
Yet another point of rebuttal is this: If fleeing to Japan is going to be allowed if it is to escape domestic violence, then it should be OK to escape from Japan with your children for the same reason. But this type of mundane logical consistency is probably incompatible with the subtle rhetorical aesthetics of the Way of Cake.
While the Hague Convention garners most of the attention in the foreign press, there are signs that Japan could be taking steps to amend its creaky family laws to provide for joint custody and postseparation parent-child contact, neither of which are provided for under current law (preservation of access rights across borders is another goal of the Hague Convention, though the same is true of the Convention on the Rights of the Child, which Japan has signed but essentially ignores in this respect). The last draft of one version of proposed legislation I have seen includes a prohibition on the unilateral removal of a child from their home; if this provision survives the legislative process, it might be hard to square with a law that could offer a blanket invitation to Japanese mothers to bring their children home from abroad.
Yet how domestic law change fits with the Hague Convention may not be a problem, since nothing may actually happen in the case of the former. In a recent interview (Japan Times, Feb. 3), Justice Minister Satsuki Eda questioned the need to package the adoption of a joint custody regime with signing the Hague Convention, though in the same article it was also reported that “he thinks married couples should be allowed to have separate surnames, but changing the law now would be difficult.” That certain sectors of the Japanese polity are still grappling with the staggering complexities of women keeping their maiden names after marriage (and not even touching the seemingly unconstitutional prohibition on remarriage within six months of divorce that only applies to women) might be a good benchmark for how low expectations should be set regarding changes in domestic family law.
Then again, what a particular minister of justice says about anything may not be an indicator of very much in the first place. Since January 2001, 13 different people have filled the position, a one-year term ending in August or September being the most common pattern of tenure. Past ministers — past prime ministers, even — have voiced views on the Hague Convention and other aspects of family law, yet nothing much seems to happen. In 2010, then Prime Minister Yukio Hatoyama expressed a willingness to sign the Hague Convention early in 2010, and during her term at the top of the Justice Ministry pyramid, Keiko Chiba’s accomplishment was supposedly to have been resolving the marital name issue, yet the status quo continues on both fronts.
Democracy is a slow business, full of messy compromise, of course, yet when it comes to issues that matter to families and children, one is often left wondering who — if anyone — is actually in charge. Cake, anyone?
TOKYO — Resolving parental child abduction cases in Japan not only requires more attention from Japan and the U.S., but also is an issue the Pentagon must address.
Rep. Chris Smith, in Tokyo this week to lobby support for a treaty to end parental abductions, called for the U.S. military to step up efforts to help troops, since current and former service members often face impossible challenges in trying to get access to their children in Japan.
From 2007 to 2009, the number of troops who sought help from the U.S. State Department to get visitation rights with their half-American children outside the U.S. rose from eight to 34 in 14 countries, according to a 2010 DOD report on international child abduction.
Many cases go unreported because left-behind parents often realize early on that there is little that can be done to help them, said attorney Patricia Apy, who traveled to Tokyo with Smith to raise awareness about Japanese abduction cases.
In 2010, Smith passed legislation that created a partnership between the Pentagon and State Department to help better inform servicemembers on child abduction issues.
The diplomatic-military effort is still in its early stages and so far has only included training for military staff judge advocates, Pentagon spokeswoman Maj. Monica Matoush said in an e-mail Thursday to Stars and Stripes.
But active-duty and former service members whose children have been abducted to Japan contend the military could quickly and cheaply begin addressing the problem.
“With all the briefings you get in the military, they could include some information about the abduction problems,” said Michael Elias, who served in the Marine Corps and claims his estranged Japanese wife abducted his two young children to Japan from New Jersey in 2008.
“You go overseas they give you information about everything, even how not to catch an STD overseas,” he said. “But this topic goes unmentioned?”
Still, it was Marine Commandant Gen. James Conway who provided the first ray of hope for Elias in 2009.
“I wrote like 200 letters to (Secretary of State) Hillary Clinton and had called everyone from the (local) police to the FBI,” said Elias, who then e-mailed Conway.
Conway, who has since retired, quickly responded and hooked Elias up with Apy, his current attorney, who has worked as a legal adviser to the Pentagon and the Clinton administration.
“That was the best thing that could have happened,” said Elias. “I’ll never forget what he (Conway) wrote: ‘Never let it be said that Marines don’t help Marines out.’”
Like many young service members who fall in love and marry while stationed overseas, Elias never thought of the consequences associated with international marriage.
But that’s all the more reason the military should at least brief troops about the risks, he said.
“I never imagined (my wife) could or would do this,” said the 26-year-old sheriff’s deputy from his Rutherford, N.J., home this week. His parents Nancy and Miguel Elias accompanied Smith to Japan, a trip Michael Elias said he skipped for fear of being served with a Japanese court order.
Nancy and Miguel Elias said a U.S. Embassy official in Tokyo made contact with their daughter-in-law while they were in Japan, but that she refused to allow them to visit their grandchildren.
Stars and Stripes was unsuccessful in contacting Elias’ ex-wife.Read Full Post | Make a Comment ( None so far )
YOKOTA AIR BASE, Japan — A U.S. congressman left Tokyo on Wednesday after a whirlwind trip aimed at rallying Japanese support for an international child abduction treaty, an issue that has sparked a growing debate in Japan and abroad.
While lobbying members of the Diet and other government officials this week to ratify the 1981 Hague Convention on the Civil Aspects of International Child Abduction, Rep. Chris Smith said Tokyo and Washington must resolve the current cases of parental kidnapping in Japan involving U.S. citizens.
The treaty would essentially stop Japanese law from shielding people who have taken their children to Japan in violation of jurisdictional authority in another country. The 1981 treaty was written without retroactive authority and can only be applied when both countries — where the custody dispute arises — are signatories.
The New Jersey Republican said it would be a “gross miscarriage of justice” if the American parents of 103 U.S.-Japanese children who have been taken to Japan go without help should Japan sign the treaty — a decision the government ponders as the issue gains domestic and international media attention.
Smith said establishing government-to-government protocols for the U.S. and Japan to resolve current cases would help lay the foundation within Japan’s domestic legal framework to ease ratification of the treaty.
Recent moves by Japan — such as establishing working groups within the government and legislature to study whether Japan should accede to the treaty — indicate the country is seriously considering the matter for the first time.
Smith’s efforts come as diplomatic pressure from the international community on the matter has increased in the past two years.
“This problem isn’t going away,” said Smith, who is working closely with Americans whose children have been abducted to Japan and with attorney Patricia Apy, a New Jersey international family law attorney.
Apy, who traveled to Japan with Smith, said she has unsuccessfully pleaded with the government of Japan at least eight times to assist in the extradition of Japanese citizens who have fled to the country in violation of U.S. custody orders. She said those failures highlight the impunity with which parental child abductors facilitate their crimes in Japan.
Japan’s new consideration of the abduction issue should be viewed with “cautious optimism,” said Apy, who has worked as a legal consultant for the Defense Department and the Clinton administration.
It’s too early to tell whether Japan is fully on board with the concept, she said.
With Japan’s custom of sole-custody divorces that typically cut off all contact between children and their non-custodial parents, even the fundamental idea behind the 1981 Hague treaty — that both parents deserve access to their children after divorce — clashes with conventional wisdom in Japan, Japanese officials say.
Masae Ido, a Diet member affiliated with Japan’s ruling party, said her biggest concern with the Hague is the disadvantage it could impose on Japanese women who flee with their children to Japan to escape domestic abuse.
“In a litigious society like the United States, Japanese women often end up fighting a lone battle (in American courts) without getting any support,” Ido said, adding that the language barrier and a lack of financial means “contribute to their decision to leave the country without due process.”
While emphasizing the polite and productive nature of his meeting with Ido and other Japanese officials, Smith said Japan no longer can condone the clear cases of parental kidnapping within its borders.
Smith said his trip is tied to legislation he plans to introduce in the House in the coming weeks that would impose economic sanctions against Japan and other countries that fail to return kidnapped children. Smith tried to pass similar legislation in 2010 but it died in the House, and it’s unclear whether the bill has any new support this year.
“These current cases must be resolved. These parents can’t be left behind again,” Smith said.
The government said Friday it will conduct hearings in March with experts regarding whether Japan should join an international treaty that deals with cross-border child-custody disputes.
“Given that there are people who are for or against the signing of the Hague treaty, it is important for us to listen sincerely to the opinions from both camps,” Deputy Chief Cabinet Secretary Tetsuro Fukuyama told reporters.
The Japan Federation of Bar Associations will be among those attending the hearings, Fukuyama said after the latest meeting of a government task force studying the matter.
Japan has been under international pressure to join the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which is designed to help resolve cases in which foreign parents are prevented from seeing their children in Japan after their marriages with Japanese nationals fail.
In many cases, the estranged Japanese parent spirits children out of their nations of domicile, even in defiance of overseas court custody rulings.
Critics in Japan have raised concerns over joining the pact, saying it could endanger Japanese parents and their children who, they claim, have fled from abuse by non-Japanese spouses.
Wednesday 23rd February, 2011 Japan Today
Japanese lawyers said Tuesday they have urged the government to try to secure children’s best interests if it decides to sign an international convention designed to help resolve cases in which foreign parents are prevented from seeing children ‘‘abducted’’ to Japan after their marriages with Japanese nationals fail.
The Japan Federation of Bar Associations said in a paper submitted to the foreign and justice ministries and the Cabinet Secretariat that Tokyo should guarantee in its domestic law that children should not be returned to their habitual country of residence if they are found to have been abused or subject to violence.
Satoshi Mukai, a JFBA vice president, told a press conference that even though member lawyers are divided over whether Japan should join the 1980 Hague Convention on the Civil Aspects of International Child Abduction, they compiled the paper to influence ongoing discussions at the government task force on the convention.
The treaty, which currently has 84 parties, stipulates rules and procedures for the prompt return of children to their habitual country of residence when wrongfully removed or retained in the case of an international divorce.
The government launched the task force comprising senior vice ministers in January to examine whether Tokyo should accede to the treaty. Japan is the only country among the Group of Seven major economies that has not signed the pact and it has been under international pressure to join the treaty.
The report said Japan should stipulate in domestic laws guaranteeing the implementation of the Hague Convention that children’s opinions will be appropriately heard and respected when authorities make a judgment on their return to their habitual country of residence.
The lawyers also said the legislation should make it clear that the Hague Convention is not retroactive, or only applies to wrongful child removals or retentions that occur after its entry into force in Japan and that it exempts parental child abduction cases that occur domestically.
They called on the government to raise public awareness of the Hague Convention and set a three-year preparation period before the treaty takes effect in Japan.
Whether to join The Hague Convention has triggered a heated debate in Japan, where it is customary for mothers to take sole care of children after divorces. It is not unusual for children to stop seeing their fathers after their parents break up.
Some critics in Japan argue that even though the pact says children will not be returned to their habitual country of residence if there is ‘‘a grave risk of physical or psychological harm,’’ past judgments have been made based on ‘‘limited interpretations’’ of the clause.
The JFBA urged the nation’s diplomatic missions abroad to provide necessary assistance to Japanese nationals who are involved in child custody disputes.
Naoki Idei, a member of the JFBA’s working group on The Hague Convention, said many member lawyers are concerned the treaty could endanger Japanese parents and their children who have fled abusive relationships.
As a legal remedy, the lawyers’ group called on the Japanese government to ratify optional protocols of international human rights treaties that enable individuals to file complaints for violations of their rights.
Idei said such a mechanism would help redress the situation of parents and children when a return to a child’s habitual country of residence is ordered under The Hague Convention despite claims of abuse.Read Full Post | Make a Comment ( None so far )
Justice for Smuggled Turtles, But Not For Children Kidnapped from the United States (via Rocjapan Blog)
Good story. It really shows that turtles are more important than children. It seems federal authorities have their priorities out of whack.
via Rocjapan BlogRead Full Post | Make a Comment ( None so far )
■ハーグ条約 オランダのハーグで締結された国際条約の総称。国家間の不法な子供の連れ去りを防止することを目的に１９８３年に発効した。親権を持つ親か ら子供を誘拐した場合、その子供がいた場所へ帰らせることを加盟国に義務付けさせる。日本は親権に関する民法との整合性から未加盟だが、２００９年、外務 省内に「子の親権問題担当室」を設置し、加盟の可否を検討中。Read Full Post | Make a Comment ( None so far )
ABC story in Japanese on NHKRead Full Post | Make a Comment ( None so far )
More video from ABC on child abduction to Japan.Read Full Post | Make a Comment ( None so far )
Thousands of miles away, hundreds of American children are being kept in Japan, victims of parental abduction, out of reach of their other parent and out of reach of the U.S. government.
Among the circles of left-behind parents in the U.S., many of them fathers, Japan is known as a safe haven for parental abductions. Once overseas, the parent who abducted the child is protected by the Japanese government’s unwillingness to sign the Hague Convention, a treaty that provides for the return of abducted children to their home country.
The U.S. Department of State has tried for years to negotiate Japan’s signature on the Hague Convention and to try and resolve some of the 321 cases that have been filed with the department during the last 17 years. But not one child has ever been returned to the U.S. from Japan through diplomatic measures, according to the State Department.
Below are the stories of three American fathers who are desperately seeking contact with their children.
Having a family wasn’t something Michael Elias planned on as a young Marine stationed in Okinawa, Japan. But after his Japanese girlfriend Mayumi called him with the news she was pregnant with their daughter, Elias said he eagerly made the transition into husband and father.
He brought Mayumi to the United States and married her. Their daughter, Jade, was born months later.
Just before Elias deployed to Iraq in 2007, they found out Mayumi was pregnant again. Their son Michael was born while he was overseas.
With his young family waiting for him at home, Elias counted the days until he returned to the United States. But his Humvee was hit by an IED and Elias, blown back into the cabin, suffered a traumatic brain injury.
When he returned home, he said, things had changed.
“It wasn’t the same as when I had left,” he said.
Mayumi soon began dating another Japanese national – a travel agent. Elias got a girlfriend.
But when the two went to court to begin deciding custody for Jade and baby Michael, a judge ordered neither party to leave New Jersey with the children – and demanded Mayumi turn over the children’s American and Japanese passports, which she did.
Months later, in December 2008, Mayumi disappeared with the children, taking them to Japan.
Elias, who later learned through flight records that his children had been given duplicate passports at a Japanese consulate, was devastated.
He has since been cut off from all contact with his children. He last saw an image of Jade, now 5, in a Skype conversation more than a year ago. He fears his son Michael, now 3 1/2, will no longer remember him.
ABC News was unable to locate Mayumi for comment.
Elias is hoping the U.S. Department of State will someday be able to bring his children back home.
“When I was asked to serve in a war I did it without question,” Elias said. “And now all I ask is for something [that] belongs to not only me, this country.”
Navy Cdr. Paul Toland first spotted his future wife at a running club while he was stationed in Japan. Too shy to talk to her at first, he said he eventually worked up enough nerve to ask her out using a Japanese-English translator.
It was a gesture, he says, that would lead to years of happy marriage and the birth of their daughter, Erika.
By the time Erika was born in 2002, Toland and his wife Etsuko had been married for seven years. She became a U.S. citizen shortly after in preparation for the family’s eventual move back to the United States.
But when Erika was less than a year old, Etsuko, who Toland said had became increasingly unhappy, took Erika from their Navy housing and cut off all contact.
“I was at work one day and I got a phone call from my neighbors saying ‘Are you moving back to the States? … And I said what are you talking about,’” Toland said. “And they said ‘Well, there’s a moving van outside your house.’ When I got home my wife and my daughter and all our stuff was gone.”
Etsuko committed suicide four years later and her mother, Akiko Futagi immediately took guardianship of Erika. Toland, Erika’s sole surviving parent, has never been allowed to spend time with his daughter.
ABC News found Futagi and Erika in northern Tokyo. Futagi accused Toland of being a dead-beat feather who has never paid her for raising his daughter.
“He doesn’t pay anything to bring her up,” Futagi said. When asked if she would let Toland see Erika, her response was quick. “No,” she said.
Toland said he has tried to put money into a bank account for his daughter, but Futagi rejected his lawyer’s offer.
“The State Department has tried to visit with my daughter a number of times and have been rejected,” Toland said. “They even asked the Japanese Ministry of Foreign Affairs to try to visit with my daughter and they were rejected. And once again they came back and said, ‘Sorry, we tried there’s nothing we can do.’”
Scott Sawyer never dreamed his once happy family would be destroyed, and that his only child would be thousands of miles out of reach.
But after he filed for divorce from his ex-wife in 2008, she took off for her native Japan, brining their then-2-year-old son, Wayne, with her. He hasn’t seen his son since.
“My concern is for my son,” Sawyer said. “What kind of life is he having in Japan right now? What has he been told about why he can’t see his father?”
It was something he feared would happen. Before his wife left California with their son, he tried to convince a judge she was a flight risk. Court documents show his ex was ordered to turn over her passport.
“She had said repeatedly, ‘I want to go to Japan. I want to take the baby to Japan,’” he said. “I knew if that happened they wouldn’t come back.”
Sawyer’s ex, who spoke to ABC News under the condition that we not use her name or show her face, said she knows she is considered a kidnapper. It was something, she said, she felt she had to do. She did not think she could survive on her own in the United States.
“At the time, my choices was just two – kidnapper or die,” she said. “I can’t live in Los Angeles.”
She told ABC News she fears Sawyer will kidnap their son and bring him back to the United States.
“If he promise me that he doesn’t, he will not kidnap my son from Japan, he can see my son any time,” she said. “I would really, no problem. I will support my ex in Japan.”Read Full Post | Make a Comment ( 4 so far )
ABC World News Tonight w/Diane Sawyer will be airing a 2 part segment about illegally abducted children by Japanese nationals tomorrow night Feb. 15th & Wednesday Feb 16th at 6:30 PM local time. It will also be featured on Nightline Wednesday evening at 11:30. Check your local listings to confirm the time in your area. Between 10 and 20 left behind parents will be featured. Please spread the word. Click on the link to watch the teaser.Read Full Post | Make a Comment ( None so far )
BY MASAHIRO TSURUOKA STAFF WRITER Asahi Shimbun 2011/02/11
Even as Japan faces rising international pressure to ratify a treaty to resolve child custody battles between Japanese and foreign ex-spouses, public opinion in this country remains sharply divided over the issue.
The Hague Convention on the Civil Aspects of International Child Abduction stipulates that if one parent takes the couple’s offspring to his or her home country without the consent of the spouse, the child or children must be returned to the country of previous residence.
The convention applies to children aged 15 or younger.
Japan and Russia are the only nations among the world’s eight major economies that have not ratified the 1980 Hague Convention.
A typical case under the Hague Convention is that of a Japanese woman who returns to Japan with her child after her marriage fails.
Japan has chosen not to ratify the treaty in part to protect returning Japanese women who say they are fleeing domestic violence or other serious troubles.
But abroad, their actions are often seen as bordering on criminal behavior. In some countries, the women are accused by their ex-husbands of kidnapping or abducting their own children.
The U.S. Federal Bureau of Investigation and other law enforcement authorities are looking into several such abduction cases.
In Japan, opinions are split on the issue.
A Foreign Ministry survey of Japanese involved in such cases drew 22 responses in favor of ratification of the treaty and 17 against. The survey was released Feb. 2.
The ministry had received 64 responses as of November to its questionnaire posted on its website and other venues.
In support of ratification is the view that concluding the treaty, which serves as the international rule to settle cross-border child custody disputes, is necessary given the rising number of interracial marriages and divorces.
Others support ratification because Japan is being painted overseas as a country that defends the abduction of children.
In the other camp, dissenters say that Japan should not conclude the treaty because taking children away from a violent foreign spouse is a “last resort” for troubled Japanese women.
Moreover, fighting a custody battle in court in the child’s country of previous residence would burden the Japanese spouse with exorbitant legal fees or language barriers.
Often, such court rulings would not be in the Japanese parent’s favor, dissenters say.
Foreign Ministry statistics as of January on cases in which Japanese had brought their children back to Japan against the will of a divorced partner found 100 in the United States, 38 in Britain, 37 in Canada and 30 in France.
The tally is based on the number of cases for which foreign governments had contacted the Japanese government.
If Japan signs the Hague Convention, the government would be obliged to fulfill its legal responsibility by complying with requests made by foreign parents.
The government would be required to locate the “abducted” children and return them to their previous country of residence.
So far 84 countries have signed the Hague Convention.
International pressure on Japan to conclude the treaty is mounting.
France last month passed a resolution in the Senate to demand Japan’s prompt ratification of the Convention.
The U.S. House of Representatives took similar action in September.
U.S. Secretary of State Hillary Clinton stepped up pressure on Japan over the issue in December and again in January, when she met Foreign Minister Seiji Maehara.
Maehara reportedly told her in the January meeting, “Japan will seriously consider the matter.”
The government appears to be moving toward concluding the treaty.
At the instruction of Prime Minister Naoto Kan, the government formed a task force comprising senior vice ministers of relevant ministries last month to weigh the issue.
Kan will likely promise to ratify the treaty when he visits Washington in May or later.
The Kan administration hopes to pass the related legislation at the same time it seeks Diet approval for the ratification.
The government plans to incorporate a clause in proposed bills that would allow parents to refuse to return their children in cases involving domestic violence.
But it is still hard to say if things will turn out the way the Kan administration wants.
Many DPJ members and Justice Ministry officials have expressed strong reservations about the speed at which the government is moving to ratify the treaty.Read Full Post | Make a Comment ( None so far )
JOINT PRESS STATEMENT By the Ambassadors and Representatives of Australia, Canada, Colombia, the European Union, France, Hungary, Italy, New Zealand, Spain, the United Kingdom, and the United States of America
Feb. 9, 2011
We, the Ambassadors of Canada, the European Union, France, Hungary, Italy, New Zealand, Spain, the United Kingdom, and the United States of America, the Political Counsellor of the Embassy of Australia, and the Consul of Colombia, called on Japan’s Parliamentary Vice-Minister for Foreign Affairs today to express the importance we continue to attach to the issue of international parental abduction, and to once again urge Japan to ratify the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”).
We are encouraged by the serious consideration that the Government of Japan is currently giving this issue, including by establishing a Vice-Ministerial-level working group to study it. We look forward to Japan reaching a positive decision to ratify the Convention as soon as possible.
The Convention seeks to protect children from the harmful effects of their wrongful removal or retention across international borders, which can be a tragedy for all concerned. The Convention further establishes procedures to ensure the prompt return of children to the State of their habitual residence when wrongfully removed or retained, and secures protection for rights of access of both parents to their children. Under the Convention, a State is not bound to order the return of a child if it is established that 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.
To date, 84 countries have joined the Convention, including the eleven countries that jointly carried out today’s demarche, and all 27 member states of the European Union, which, moreover, has enshrined the principles laid down in the Convention into EU law. In the past year alone, three additional countries – Morocco, Gabon and Singapore – have joined the Convention, making it an increasingly universal standard for the handling of cross-border abduction cases. Japan is the only G-7 nation that has not signed the Convention. 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.
In our meeting with Parliamentary Vice-Minister Yamahana, we emphasized the high priority our governments place on the welfare of children affected by the breakdown of international marriages, and stressed that children should grow up with access to both parents. We also noted that Japanese ratification of the Convention would benefit Japanese nationals as much as those of other countries, since, as revealed by a recent web survey by the Ministry of Foreign Affairs, there are many cases where Japanese parents and their children have lost contact because of abduction to other countries. We further urged Japan to identify and implement measures to enable parents who are separated from their children to maintain contact with them and ensure visitation rights, and to establish a framework for resolution of current child abduction cases. Finally, we emphasized that the Convention has provisions to prevent children from being returned to abusive or otherwise threatening situations in other countries, as well as the existence of protective provisions against domestic violence within the legal systems of our countries.
Japan is an important partner for all of our countries in innumerable ways, ranging from vibrant political and economic relations, to the people-to-people ties of which international marriages are emblematic. All our governments continue to stand ready to assist Japan in its consideration of the Hague Convention, with a view to helping parents and children affected by this painful issue.Read Full Post | Make a Comment ( 2 so far )
If Japan wants to promote the best interests of children, it should sign the Hague Convention, the special adviser to the U.S. State Department on issues pertaining to international parental child abductions urged Tuesday.
Susan Jacobs, in Tokyo on a four-day visit during which she met with officials at the Foreign and Justice ministries, said the 1980 Hague Convention on the Civil Aspects of International Child Abduction acts as a deterrent to parental child abductions.
Members of the Hague Convention “are very interested in having Japan join this convention because the convention sets out a legal framework for the return of children who have been abducted from one country to another country,” Jacobs said. “And I think that we have found that when this convention is in place, it lowers the number of abductions and encourages parents to reach custody agreements with each other in the best interests of the child.”
Japan has been under international pressure to sign the treaty, but there is strong domestic opposition, especially among mothers who took their kids to Japan, claiming they were fleeing domestic violence.
Jacobs pointed out that while the Hague treaty is not about domestic violence, women in many member states have resources to turn to, including the police, social services and shelters to seek protection from abuse.
“There is no need for anyone to continue to be subjected to domestic violence,” Jacobs said. “It is wrong, however, for someone who may or may not have been the victim of domestic violence to abduct their children from one country and take them to another when there is recourse in the country in which they were living.”
The government launched a study panel last month to discuss whether Japan should sign the Hague Convention. Jacobs expressed optimism with the recent progress made, including interest by the Japanese media and the public.
By Roland Buerk BBC News, Tokyo
Thousands of Japanese people marry foreigners every year. Many are happy – but if the marriage breaks down the foreign spouse may end up cut out of the children’s lives.
Alex Kahney, who works for a medical publisher, still lives in what was once the family home, now nearly bare of furniture but full of memories.
There are photographs of his daughters on the walls of the small four-storey town house in one of the nicer Tokyo neighbourhoods.
Their favourite stuffed toys, a dog and a mouse, are on the back of the sofa – reminders of the little girls, aged nine and seven, who he has not seen for months.
His Japanese wife took them with her, along with much of the contents of the house, when their marriage broke down, and is refusing to let him see them.
Mr Kahney first tried the police.
But when he told them that his wife had abducted their children, they laughed at him.
What makes it more painful is that their new home is just down the road.
- The number of Japanese men marrying foreign women is higher than the number of Japanese women marrying foreign men. It is rare for a Japanese man to marry a Western woman, but Japanese women frequently marry Western men.
- A Japanese man marrying a foreigner is most likely to marry a woman from China, the Philippines or Korea, in that order. A Japanese women marrying a foreigner is most likely to marry a man from Korea, the US or China.
For the whole story please click on the link below:Read Full Post | Make a Comment ( None so far )
If you understand Japanese please watch the 25 minute video about international child abduction and signing the HagueRead Full Post | Make a Comment ( None so far )
Japan is looking at signing the Hague Convention on the Civil Aspects of International Child Abduction, which is aimed at promptly returning children illegally taken by a parent out of the country of their habitual residence.
The question has arisen over whether the Civil Code should also be changed to allow dual parental rights after divorce. Eda said the Justice Ministry “is now discussing the matter, but I personally feel that allowing dual parental rights doesn’t necessarily have to” be packaged with signing the convention.
Signatory countries, particularly the United States, France and Canada, are urging Japan to join the convention against international child abductions by parents.
Some people whose former spouses don’t let them see their children in Japan argue that signing the convention doesn’t guarantee their access to children unless dual parental rights are also allowed.
This problem doesn’t only concern foreigners. Japanese parents — fathers in most cases — also can’t see their kids if their ex-spouses say no.
In Japan, those with parental rights have discretion over how often their ex-spouses can see their offspring. Shared parental rights are currently not allowed by the Civil Code because of the cultural belief that a stable environment is considered the most important factor for children.
“I guess it comes from the idea that letting a single parent have parental rights is good because it is simple,” Eda said.
Parents who were victims of abusive relationships are urging the government to keep parental rights to one person and not sign the Hague Convention because, they say, the current legal system protects them from their former spouses.
The Justice Ministry manages the Civil Code, and thus would likely be the source of any bills revising it.
Turning to other developments in the ministry, Eda said officials are studying how other countries deal with making the investigation process by police and prosecutors more transparent.
To read the whole story (some of which deals with the death penalty) please click on the link below:Read Full Post | Make a Comment ( None so far )
An online survey by the Foreign Ministry showed Wednesday that people who have directly been involved in the so-called parental ‘‘abductions’’ of children as a result of failed marriages were divided on Japan’s accession to an international treaty to deal with child custody disputes.
Of 64 respondents to the questionnaire posted on the website of the Foreign Ministry and its 121 diplomatic missions abroad between May and November last year, 22 were in favor of Japan joining the 1980 Hague Convention on the Civil Aspects of International Child Abduction, while 17 were against the idea.
The remaining 25 respondents did not make their stance clear, said Parliamentary Vice Foreign Minister Ikuo Yamahana at a press conference.
The convention provides a procedure for the prompt return of children to their habitual country of residence when they are wrongfully removed or retained in the case of an international divorce. It also protects parental access rights.
Those seeking Japan’s accession to the convention said Tokyo should no longer allow unilateral parental child abductions as the country is perceived overseas as an ‘‘abnormal’’ nation for defending such acts.
People opposed to Japan’s signing of the treaty said the convention ‘‘doesn’t fit with’’ Japanese culture, values and customs and urged the government to protect Japanese nationals fleeing from difficult circumstances such as abusive spouses and problems in foreign countries.
Some pointed to the disadvantages faced by Japanese parents seeking a local court settlement on child custody abroad, such as expensive legal fees and the language barrier.
Yamahana said the government led by the Democratic Party of Japan will further examine the possibility of joining the convention based on the results of the online survey. ‘‘We will discuss what we can do to ensure the welfare of children,’’ he said.
International pressure on Tokyo to act on the parental abduction issue has been growing, with legislative bodies in the United States and France recently adopting resolutions that call for Japan’s accession to the treaty.
At present, 84 countries and regions are parties to the Hague Convention. Of the Group of Seven major economies, only Japan has yet to ratify the pact.
Of the 64 respondents, 18 said they have abducted children and 19 said their children have been taken by their former spouses. A total of 27 said they have been slapped with restrictions on traveling with their children because Japan is not a party to the Hague Convention.
By country, 26 respondents were linked to parental abduction cases in the United States, followed by nine in Australia and seven in Canada.Read Full Post | Make a Comment ( None so far )
Assistant Secretary Campbell briefs the foreign press at the DC Foreign Press Center on U.S. Foreign Policy Goals and Objectives in Southeast Asia for 2011, at the National Press Club Building. The big question of the day happened to be the last question. Global Future asked, with all of the speculation about signing the Hague Convention, do you (Mr. Campbell) have any idea when the abducted American children will be returned from Japan? (The question was asked at the 32:01 minute mark; move the slider at the bottom of the screen to the 32:01 minute mark to hear the question and Secretary Campbell’s response) Click on the link to watch the video : Campbell videoRead Full Post | Make a Comment ( None so far )
Japan’s been under pressure for years to tackle a problem that’s a comparatively minor irritant on the annual diplomatic calendar, but which is a source of enormous emotional pain for the individuals involved.
As the number of international marriages grows, an inevitable if sad byproduct has been the rise of divorces, putting the fate of bi-racial children at the centre of sometimes bitter personal disputes. In some cases, Japanese mothers have taken their kids from foreign fathers and brought them to Japan, where they’re beyond the reach of global law, at least for now.
The issue has been forced onto the slow-moving bureaucratic agenda by the attentions of the world’s media. Last year, CNN extensively covered Christopher Savoie’s arrest and eventual release after he snatched his kids as they walked to school in Fukuoka.
The website of Japan’s Foreign Correspondent’s Club features a harrowing tale of Frenchman Arnaud Simon, who killed himself last November, apparently in frustration at being blocked from joint custody of his half-Japanese son. According to journalist Regis Arnaud, another French man in the same predicament, Christophe Guillermin, took his own life last June. Those tragedies prompted French lawmakers recently to adopt a resolution calling on Japan to join over 80 other signatories to the Hague Convention on Child Abduction.
Prime Minister Naoto Kan is under pressure to sign-up during his next trip to the United States, scheduled for June. NHK reports that the Japanese government is ‘facing difficulties’ on deciding its position because it remains concerned about Japanese women who return with their children to ‘escape abusive foreign partners.’
What some reports neglect to mention is that Japanese fathers, in overwhelming numbers (CNN cites a figure of 100 cases of children abducted by non-custodial Japanese parents) struggle with the same problem. If Japanese experts are to be believed, most fathers are happy to accept sole custody by the mother—but not all. And, as an article in yesterday’s Sankei newspaper suggests, fathers too can withhold custody, with unusual results:
The article says that amid a divorce dispute, a father has refused to allow the mother access to their four-year-old daughter even though they are still legally married. The mother, Terumi Aoyagi (36) is still married to her husband, but he filed a complaint with the police after she, along with her mother (the child’s grandmother, 63), tried to ‘get access to’ (read snatch) the daughter in the car park of the girl’s pre-school. Their attempt failed after a teacher stopped them.
According to the article, both mother and grandmother were arrested for ‘kidnapping of a minor’ on January 27 and are still in jail.
The fact that the alleged kidnapping also happened in Fukuoka will prompt some to ask the obvious questions. If it’s OK for a mother to take her children from the United States to Japan, why isn’t it acceptable for a father to come and take them back? If it’s wrong for a father to snatch his children on the way home from school, why is it acceptable for another father to deny access to his daughter, then have her mother arrested when she tries to get it?
Whatever your answers to those questions are, it seems clear that when the police can arrest and detain a mother for the crime of trying to see her child, there’s something badly amiss with the custody system.
The Diplomat (Feb. 1st, 2011)
The Yomiuri Shimbun
International marriages are on the rise, and subsequently so are cases in which former spouses engage in international custody battles over their children.
To help address this situation, the government set up a senior vice-ministerial council involving related ministries and tasked with discussing the possibility of Japan joining an international convention. The discussions necessary for Japan to join the convention should be expedited.
The Hague Convention on the Civil Aspects of International Child Abduction contains the principle that children from an international marriage who are removed from their country of residence by one of their divorced parents, without the other parent’s consent, must be returned to the country of residence.
Signatory nations are obligated to provide administrative cooperation in such efforts as discovering the whereabouts of such children and restoring them to their country of habitual residence.
Eighty-two countries, mostly in the West and Latin America, have signed the convention, while Japan has not.
Friction over Japan’s status
This has led to trouble between Japan and signatory nations, with Japanese women returning to this country with their children and being sued over parental rights by their former husbands in their original country of residence. There are said to be nearly 100 such cases involving Japanese and U.S. parents.
Earlier this year, U.S. Secretary of State Hillary Clinton asked Foreign Minister Seiji Maehara for Japan to join the convention soon. The French Senate adopted a resolution along the same lines earlier this week.
There is a strong view within the government that Japan should not deepen the diplomatic friction over the issue.
The convention itself is based on the idea that disputes related to parental rights should be resolved in accordance with the law of the original state of residence.
Therefore, the convention is not a framework under which only Japan suffers a disadvantage. By becoming a signatory, the government of this country can seek the return to Japan of children wrongfully removed to, or held in, another signatory nation.
The number of Japanese who marry foreigners has recently averaged around 40,000 a year, about quadrupled from 1983, when the Hague convention came into force. As if in line with the increase, the number of couples who eventually divorce and battle over parental rights also is rising.
The times require Japan to join the Hague convention, which has become established as the international standard.
Govt has work to do
For Japan to join the convention, the government has to choose a supervisory ministry and prepare relevant domestic laws. It also has to take measures to inform international couples of the contents of the Hague convention.
Domestic violence by former husbands is often cited as a reason why Japanese women take their children from their country of habitual residence to Japan. More than a few people are wary of Japan’s signing the convention, saying it will harm the interests of Japanese citizens if such mothers are obliged to return their children.
The convention stipulates that if there is a high possibility that return would expose a child to danger, the relevant authority of the state receiving the request is not obliged to order the return of the child.
We hope the government will do its utmost to dispel lingering apprehension by examining actual cases in which parents refuse to return children and look into what sort of measures other countries are taking with regard to domestic violence.
(From The Yomiuri Shimbun, Jan. 28, 2011)Read Full Post | Make a Comment ( None so far )
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