Outline of child custody bills approved Ministry to draft new regulations that would come into force after Japan signs Hague convention

Posted on February 7, 2012. Filed under: Hague Convention | Tags: , |


Staff writer Japan Times

A Justice Ministry panel on Tuesday gave the green light for the ministry to write bills for new domestic laws in preparation for signing the Hague Convention on the Civil Aspect of International Child Abduction, which theoretically promises other countries that Japan will try its utmost to return abducted children.

Critics, however, are not too optimistic because whether children will be returned to their original countries will depend largely on how Japan’s family court judges interpret any new laws.

The United States and countries in Europe have urged Japan to sign the convention, and have criticized Tokyo for letting a Japanese parent get away with abducting his or her children from a spouse in failed international marriages.

Japan, on the other hand, has argued it must protect Japanese parents if they are victims of domestic violence.

The ministry’s Legal Council on Tuesday approved an outline of the bills submitted Jan. 23 by a subcommittee of the council.

The ministry hopes to submit the bills to the Diet by the end of March, said Osamu Kaneko of the Justice Ministry’s Civil Affairs Bureau. Whether and when the bills will be enacted will be up to the Diet.

According to the outline, if a Japanese parent takes children from his or her partner in another country that has signed the Hague treaty and the partner files a lawsuit with a Japanese family court, the court must basically order the return of the children.

However, it also stipulates the court must not order the return of children if one of six criteria are met.

The criteria are that the request for the return is filed more than a year after the abduction and the children are used to the current living environment; the plaintiff did not hold custody of the children at the time of the abduction; the plaintiff approved of the “abduction” before or after it happened; the return damages the children mentally or physically; the children are old enough for reasonable thinking and refuse to be returned; and the return goes against a person’s basic human rights.

The proposed legislation would give court officers a great deal of leeway in returning children following a court ruling.

For example, if a Japanese parent refuses to accept the return order and keeps the child or children at his or her home, the officers can “do what is necessary to open the door,” implying that the officers can break down the door if necessary.

The return of children, however, would not necessarily mean a victory for non-Japanese parents. It would only mean family courts in the countries where the child or children were abducted will have rights to determine custody and other details of their legal status.

Many countries allow dual custody and thus divorced couples would typically settle with arrangements such as that children stay with a Japanese parent during the school year and a non-Japanese parent during vacations.

On the other hand, Japan allows only one of the divorced parents total custody and it is difficult for a non-Japanese divorced parent to win custody, or parental rights as it is known in Japanese legal terms. Those without parental rights hardly ever get satisfactory visitation rights.

After Japan said in May that it would sign the convention, the Justice Ministry and the Foreign Ministry have worked on changes to domestic laws. The Justice Ministry will compile the two ministries’ drafts before it submits the bills to the Diet.

There are 87 consignee countries to the Hague convention, including the U.S., Canada, most European nations and Australia.

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