Archive for July 14th, 2011

EDITORIAL: Japan needs effective system for Hague child-custody treaty

Posted on July 14, 2011. Filed under: Hague Convention, Japanese Family Law | Tags: , , , , |

In line with Japan’s decision to join the Hague Convention on child custody, work to create necessary domestic legislation is about to start at government organs like the Legislative Council of the Justice Ministry.

The international agreement is designed to deal mainly with cross-border “abductions” by parents related to broken international marriages. If an international marriage collapses and one of the parents leaves the country with their child without consent from the other one, the treaty requires the return of the child to the country and the determination of the issue of custody according to the country’s legal procedures.

In a May Cabinet meeting, the government formally decided to sign the 1980 Hague Convention on the Civil Aspects of International Child Abduction. One key question is how to deal with cases in which the return of the child to the country of his or her habitual residence could undermine the welfare of the child.

If, for instance, a Japanese wife returns to Japan with her child to escape from her foreign husband’s violence or persecution, should the child still be returned to the country?

At the time of the Cabinet approval of Japan’s participation in the pact, the government specified several conditions that will allow it to refuse the return of the child under the law. They include: The child has suffered from the father’s violence; the husband has exercised violence against the wife in a way that has seriously traumatized the child; the wife cannot go with the child due to financial and other reasons and there is no appropriate person in the country who can take care of the child.

Some critics say these exceptional clauses would strip the teeth from the treaty. But these provisos are based on relevant court decisions made in countries that are parties to the treaty.

The government needs to explain the intentions of these clauses carefully to prevent misunderstandings that could undermine international confidence in Japan.

Whether specific cases meet any of the conditions that enable the government to refuse the return of the child will be determined by family courts in Japan, according to the government’s plan.

There are some important questions that need to be answered through in-depth discussions on actual cases. What kind of evidence is needed to prove the exercise of violence in a foreign country, for instance? What does the phrase “seriously traumatized” exactly mean?

An accumulation of precedents would foster stability in court decisions on such cases and promote public understanding of the issue.

Debate is also needed on the duties of the “Central Authority,” which is supposed to play the central role in the proceedings for the return of the child.

Under the treaty, the Central Authority is obliged to perform such functions as locating and protecting the child, providing information and advice to the parties concerned for the settlement of the dispute and securing the safe return of the child to the other country.

None of these is an easy task. Some of the contracting countries post photos of children on the Internet to find them. But that wouldn’t be acceptable in Japan.

What kind of powers and information in the possession of public institutions should be used for carrying out these tasks? Should police also become involved?

The Foreign Ministry, which will be designated as Japan’s Central Authority for dealing with cases according to the treaty, needs to define its roles and responsibilities carefully by learning from the experiences of experts handling various cases of family disputes and listening to the views of the public.

Japan will have to fulfill the obligations of a signatory country. But smooth enforcement of the law will be impossible unless there are clear ideas about actual implementation that are shared by all of society and enjoy broad public support.

There will also be cases in which Japan demands the return of a child who has been taken to another country.

There are no significant differences in parental love for children between fathers and mothers.

Japan needs to establish a system that can deal effectively with cases under the Hague Convention. The system should not favor specific positions or viewpoints and should put the priority on the child’s happiness.

–The Asahi Shimbun, July 12

Read Full Post | Make a Comment ( None so far )

Asia-Pacific Human Rights Information Center (HURIGHTS OSAKA)

Posted on July 14, 2011. Filed under: Human Rights | Tags: , , , , , |

Japan

Overview

Jinken, the Japanese word for human rights, appeared in the late 19th century. Yukichi Fukuzawa, a famous Japanese intellectual, coined the term at a time when Japan was opening up to European and American ideas and technology. Despite a late 19th century law that banned discrimination against a group of Japanese called Burakumin, the discrimination continued. This led to the formation of a levelers movement, called the National Levelers’ Association (Zenkoku Suiheisha), in the 1920s. The movement adopted the so-called Suiheisha Sengen (Suiheisha Declaration) in 1922, which the movement presently regards as an early Japanese human rights declaration. (See the Human Rights Declarations section in this website for the text of this document). It was the 1946 Constitution of Japan (Nihon Koku Kenpo) that formally adopted human rights, with a provision on “fundamental human rights” in Article 11. The 1946 Constitution also provides for women suffrage and the separation of state powers as a principle of democratic Japanese government.
Continue reading …

Topics under Japan

Read Full Post | Make a Comment ( None so far )

Liked it here?
Why not try sites on the blogroll...