The Supreme Court has issued a case-by-case manual for court-appointed administrators on how to retrieve children in parental cross-border abduction cases under the Hague Convention, minimizing the use of force to avoid traumatizing the kids, the court’s spokesman said.
The manual, issued June 14, outlines measures the administrators who would be assigned the task of returning children to their place of habitual residence, even by force, should take as Japan considers joining the Hague Convention by the end of next March, the spokesman said Friday.
It says the administrators “should take utmost consideration” to protect the interests of the child.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction mandates procedures for a child abducted by one parent of a failed marriage to be swiftly returned to its country of habitual residence. The convention only applies to children under the age of 16.
The nation has come under fire in recent years over cases in which Japanese parents in estranged marriages overseas have brought children to Japan in defiance of divorce court custody or visitation rights rulings abroad.
Often, the estranged Japanese spouse claims to have fled from an abusive relationship. But the removal of a child from its country of habitual residence has been deemed a violation of that nation’s law, and the abducting parent a fugitive.
Under legislation that cleared the Diet in May, a court-designated officer can forcibly retrieve a child abducted or retained by a parent residing in Japan in defiance of an overseas custody ruling and who refuses to hand over the child.
The manual calls for the officer to attempt to take custody of the child at the home of the abducting parent, in an environment where privacy is thus protected and the child feels safe. Taking a child away in a public place, such as a day care center or on a street, may lead to “unpredictable situations” and traumatize the child, it said.
If the child cries or refuses to be returned to the other parent, the officer should not use force, according to the manual.
Should an officer visit a home to retrieve a child and is told it is not present, the child’s name should be called out and a check made on the presence of the child’s belongings, the manual says.
The officer is authorized to forcibly enter and search a home if there are indications the child is inside.
In the case of an infant, the manual allows the officer, with the parent’s consent, to remove it from the crib. But the officer must not try to forcibly take custody of an infant if the parent is hugging it tightly to prevent such action.
The manual, issued by the Supreme Court’s Civil Affairs Bureau, is based on meetings involving judges and other court officials nationwide in January and February. The gatherings covered past cases of failed domestic marriages where one parent fled with a child from the country of habitual residence without the consent of the other parent.
Court-designated officers have retrieved children in those cases but have not had specific manuals or regulations to follow. The latest document urges such officers in domestic cases to follow its instructions to avoid harming the child in any way.
In past divorce custody cases in Japan, officers apparently tried to retrieve children in public places, resulting in shouting matches.
Fiscal 2010 saw 120 domestic cases processed in which a parent demanded the forcible return of an offspring. The figure was 133 in fiscal 2011 and 131 in fiscal 2012.
Japan is the only Group of Eight member yet to accede to the Hague Convention. If it becomes a signatory, the cases will be handled by a family court in Tokyo or Osaka.
The issue of Japan’s joining the Hague Convention is still controversial in Japan. Many members of the Diet are flatly opposed to the treaty on the ground that it will lead to the imposition of “Western thinking” on family relationships in Japan, i.e. that it might lead to the intervention of the courts into the private life of families, to the issuance of judicial orders concerning family matters that can be enforced by the power of the state, and to both parents having meaningful rights to their children after a divorce or separation.
When most other countries have joined the Convention the United States could choose whether or not to accept the accession. If a country has not enacted satisfactory legislation designed to effectively enforce the terms of the Convention other countries need not accept the accession. Such is the case with Thailand, which acceded to the Convention in 2002 but has not yet enacted implementing legislation satisfactory to the United States or several other countries. By contrast, as an original member of the Hague Conference, Japan will not be acceding to the Convention, but will ratify it which will trigger its immediate entry into force without any place for international review.
Japan and Morocco are quite similar in some ways. Morroco took some steps recently to become a Hague signatory. It would be wise if Japan followed their lead. Of the 146,408 divorces in Japan in 2009, only 3.6% involved both parents taking part in child rearing. Japan’s system seems to favor sole-custody, but Morocco had a very similar system that valued one parent, usually the mother, under Shari’a law. Although Morocco allowed the father to make important decisions about the child, such as where the mother and child could live and whether the child could travel abroad, all decisions regarding daily functions and routine care were left to the mother, essentially creating a sole custody system, similar to that of Japan. Both systems included matrifocal tendencies. While Japan’s Civil Code typically breaks custody into shinken and kangoken, the Moroccan Code of Personal Status similarly divides custody into hadana and wilaya. Morocco successfully uprooted its custody system and allowed joint responsibility to be established among parents, as one parent was given hadana and the other wilaya. In Japan, the same ideology should be adopted. Instead of granting one parent parental rights and physical custody, efforts should be made to grant shinken to one parent and kangoken to the other to allow for increased responsibility for both parents and bring about an understanding of joint custody.
Second, Japanese courts, or the Japanese Diet, need to establish visita- tion as a fundamental right. One of the key reforms Morocco made to join the Hague Convention was to establish visitation rights. However, these rights were already inherent within the Moroccan system as such meas- ures were implied when Moroccan mothers were prohibited from moving away from the father so that the father could have access to the child. Similarly, in Japan, an understanding of the psychological benefits of visitation on the child is already taking root. Courts have even granted visitation rights in some cases, but have made the rights extremely limited. It is time for Japan to push this notion and make visitation rights funda- mental within the constitutional system.
Third, Japan needs to dissolve its current registration system, or at the very least, modify the system. Allowing a child to be taken off a father’s register when a mother changes her name after divorce, resulting in the loss of parental rights for the father, is abhorrent. The registration system should be discarded completely or altered so that the child’s name will remain under both parents’ registers, regardless of the marital status of the parents. Such changes will bring Japan one step closer psychologically to joint parental responsibility.
Fourth, in order to comply with the Hague Convention, services must be available to ensure the return of children to their habitual place of residence. Like Morocco, Japan should implement law enforcement mechanisms to find abducted children and return the children safely. Fortunately Article 226 of the Japanese Penal Code is already in effect to return abducted children. The Japanese government needs to force Japanese law enforcement officers to comply with Article 226 to ensure abducted children are returned home.
Lastly, before signing the Hague Convention, Morocco entered into specific bilateral agreements to resolve familial disputes with neighboring countries to promote collaboration and global cooperation. In an effort to ease global tension, Japan would be strongly urged to do the same with the United States, the United Kingdom, France and Canada, as these four countries have repeatedly called on Japan to increase efforts to prevent parental abduction.
To read the full article click: Hague Moracco vs. Japan
February 22, 2013
Japan PM Abe Promises Hague Accession, but Leaves Kidnapped U.S. Children Held in Japan
WASHINGTON, D.C.–Japanese Prime Minister Shinzo Abe has arrived in Washington
for a four-day summit with President Obama, bearing yet another promise that Japan will
accede to the Hague Convention on International Child Abduction. For 30 years,
Japanese officials have said they have been “studying the Hague”. While Japan
studied, one FBI agent estimated in 2009 that 20,000 American children have been
kidnapped from U.S. soil and taken to Japan. Even if Japan finally fulfills its public
promises to sign the Hague, the Treaty will only represent a prevention framework for
future cases. There has been no mention of remedy for, and the Hague will not apply
retroactively to existing cases. In spite of intensely negative press, Congressional
legislation, and several joint demarches in recent years by 10 or more countries
condemning Japan’s apparent policy of state-sanctioned kidnapping, Japan has not yet
acted to remedy any of the long record of existing criminal abductions, or prevent future
abductions of children by its nationals.
Per capita and in real numbers, Japan, a G7 nation, owns the ignominious ranking of #2
in the world in the crime of international child kidnapping, behind Mexico and ahead of
India. Unlike the developing countries of Somalia, Egypt, and Saudi Arabia, Japan has
never returned a kidnapped child to the U.S. or any other country, through direct legal
or diplomatic means. Over the same 30 years, the only American child ever returned
from an illegal kidnapping to Japan, is Wisconsin native Karina Garcia. Today, Japan’s
Ministry of Foreign Affairs continues efforts to subvert the U.S. law and jurisdiction
governing Karina’s custody. Both U.S. and Japanese courts had previously awarded full
custody to her father, Dr. Moises Garcia.
American parents of children kidnapped from the U.S. to Japan believe there is much
Japan must rectify. In U.S.-to-Japan child kidnappings, Japanese nationals intentionally
broke the law in America and directly defied, with pre-meditation and malice, U.S. court
custody and passport surrender orders, issued under proper U.S. jurisdiction. The
abductors frequently enlisted the assistance of organized crime elements in the
planning and execution of the crimes. Worse, MOFA officials in Japan’s U.S.
Consulates encourage law breaking on their own websites and assist in the crimes
through dubious and unilateral issuance of Japanese passports for U.S. citizen children,
who at the time of their kidnappings were not also citizens of Japan. Upon the
kidnappers’ arrival in Japan at the conclusion of the crimes, the Japanese government
unlawfully claims jurisdiction over the children. When American parents fight back by
seeking the help of the U.S. government, Japan’s government counters by employing
well-paid American lobbyists, lawyers, and agents to lobby Congress and work against
legislation intended to assist the kidnapped American children and U.S. law
enforcement. Routinely, and with no supporting evidence, Japanese officials or
affiliated spokespersons falsely claim that Japanese parents kidnapped the children to
flee abuse, a charge that U.S. parents find deeply offensive, libelous, and damaging to
the children. Global Future condemns all perpetrators of violence and abuse in the
home, regardless of their gender, nationality, or race.
The Japanese government’s apparent endorsement of this set of belligerent actions
reflects poorly on Japan’s image worldwide. Abe, by visiting the U.S., is now in
position to answer for it. Japan’s record of stripping defenseless American children of
their U.S. Constitutional rights raises serious questions about Japan’s true intentions
and worthiness as an ally. When one of our best allies subverts our sovereignty, aids
and abets in the criminal kidnapping and illegal retention of defenseless American
children, outrageously claims jurisdiction over the children after the unlawful acts,
causes lifelong damage to the children and then alienates them by smearing their
parents with false accusations, and employs paid agents to run interference against the
American children and their parents, how much can this supposed ally really be trusted
in any subject of mutual interest? Where is the reciprocity, shared values, and mutual
respect for the rule of law?
Time is the enemy of all of these children. Wrongfully held children in Japan just grow
older and more alienated from their American families, society, culture, and their US civil
and constitutional rights. These mixed race children represent the future of the U.S.-
Japan alliance. They represent the best bridges between our two countries, societies,
and cultures. They need to be protected, cherished, and allowed to thrive. Forcibly
separated from one half of their families, restricted from one parent’s love, care,
guidance, and protection, and brainwashed against them, these children are destined to
Recent events in the China Sea, and in North Korea call us to consider how we will fulfill
our obligations in the alliance on behalf of Japan. Should we really send our service men
and women into harm’s way to protect Japan from Chinese or North Korean threats, if
we can’t trust Japan to rectify the kidnappings of American children for which it is
Through his work on the issue of the abduction of Japanese by North Korea while a
cabinet official under then-Prime Minister Koizumi, Abe knows very well the
devastating effects of abduction. He also knows that North Korea returned surviving
abduction victims to Japan. Abe could likewise rectify the criminal and destructive
behavior of Japanese nationals by returning the kidnapped children to the U.S. and
allowing them to have both parents again, as both parents originally agreed to before
U.S. judges, in U.S. courts of law. We hope Abe will see the long-term benefit to the
alliance of returning the kidnapped children to U.S. He can make a concrete offer to
Obama now regarding open abduction cases, while staying on course to accede to the
Hague. By doing so, he will deepen the alliance, on a basis of mutual respect, trust,
shared values, and family connections.
P.O. Box 861892 Los Angeles, CA 90086 Phone: (213) 392-5872
Global Future advocates for every child’s right to two loving parents.
Contact: Patrick Braden, (213) 392-5872 Global.Future@yahoo.com
Scott Sawyer, (323) 877-9185 firstname.lastname@example.org
Published February 19, 2013
In this undated photo, U.S. army sergeant Jeffrey Chafin poses with daughter Eris. (Courtesy of Jeffrey Chafin)
An Army dad whose wife left him and took their daughter to Scotland gained new hope when the U.S. Supreme Court ruled the American courts can assert themselves in international custody battles.
In a 9-0 vote that overturned an appeals court decision denying Sgt. Jeffrey Chafin’s bid to get daughter Eris back, the high court rejected the idea that Chafin’s appeal was “moot” because the six-year-old girl had been in Scotland for more than a year. The justices sent the case back to the Florida-based 11th Circuit court, telling the judges there to rule on the merits.
“Such return does not render this case moot; there is a live dispute between the parties over where their child will be raised, and there is a possibility of effectual relief for the prevailing parent,” Chief Justice John Roberts said in the written ruling. “The courts below therefore continue to have jurisdiction to adjudicate the merits of the parties’ respective claims.”
“When you have been done wrong and you’ve been screaming and finally someone hears you. It’s a very good feeling.”
– Jeffrey Chafin
An ecstatic Chafin, who met Lynn Chafin while he was stationed in Germany, but later saw their marriage sour back in the U.S., said he is ready to resume the fight for custody of Eris.
“I’m still in the cloud,” Jeffrey Chafin told FoxNews.com. “When you have been done wrong and you’ve been screaming and finally someone hears you. It’s a very good feeling.
“Now we have a fighting chance.”
Chafin and his attorney said it was frustrating to not get the chance to make their case before the lower court.
“We didn’t have a day in court,” attorney Michael Manely said. “Now the 11th circuit will have to look at the facts of this case. I think the appeals court will look at the facts and see that something doesn’t match up here. This soldier needs the opportunity to have his case heard.”
Roberts said U.S. courts have a role to play, even if Lynn Chafin refuses to cooperate.
“Even if Scotland were to ignore a U.S. re-return order, or decline to assist in enforcing it, this case would not be moot,” he said. “The U.S. courts continue to have personal jurisdiction over Ms. Chafin, may command her to take action even outside the United States, and may back up any such command with sanctions … Enforcement of the order may be uncertain if Ms. Chafin chooses to defy it, but such uncertainty does not typically render cases moot.”
The couple married in 2006 and Eris was born a year later. They were living in Germany where Jeffrey was stationed until he was deployed to Afghanistan. Lynne and their daughter had moved to Scotland until Jeffrey was transferred to Alabama in 2009. He was joined by his family the following year, but the couple divorced in 2010 and Lynne was deported a year later.
Chafin’s case is the latest high-profile custody battle involving a U.S. father and a mother who whisked their child away overseas.
- In 2008, Iraq War veteran Michael Elias was separated from his 4-year-old daughter, Jade, and 2-year-old son, Michael, when his wife illegally took the children from their New Jersey home back to her native Japan. Elias lost all rights to see his children or have them return stateside due to Japan’s government not signing and abiding by the Hague Convention, which includes regulations on the civil aspects of international child abduction.
- In 2004, then 4-year-old Sean Goldman of New Jersey, went with his mother Bruna Bianchi back to her native Brazil for a two-week-vacation. When she did not return , a custody battle began between Bianchi and Sean’s father David Goldman. Bianchi remarried in Brazil in 2007, but died a year later while giving birth. Her new husband was granted a custody order by the Brazilian court, but Goldman won custody of the boy in December 2009.
- New York City photographer Michael McCarty has fought since 2007 for custody of his son Liam, after his ex-wife took the boy to her native Italy. Despite Liam’s mother, Manuela Antonelli, being declared unfit to care for her child and McCarty having been given full legal custody, child services officials in Italy have refused to give McCarty his son back.
I am a bit confused. Two articles came out on the same day. Three articles in the last 3 days. One says Hague on fast track, another say Japan will join the treaty, and the third says treaty is not a priority. It seems clear that politicians and bureaucrats are not on the same page and nothing is going to happen in the next diet session. Japan has been saying for over 10 years they will sign the Hague. There are still a large number of lawyers that disagree about signing the Hague. I don’t think this treaty will be signed until there is an overwhelming consensus that it is a good thing. Click on the links to read the full articles.
Hague treaty not priority, past bill needs study: Tanigaki
Japan says it will join child abduction treatyRead Full Post | Make a Comment ( 1 so far )
Child custody injustices hard to fix Joining Hague may curb parental abductions if legal mindset evolves
Friday, Jan. 4, 2013
By MASAMI ITO
On May 6, 2010, Yasuyuki Watanabe, an internal affairs ministry bureaucrat, came home to find his wife and 2-year old daughter gone, along with their clothes.
Playing catchup: Yasuyuki Watanabe, deputy mayor of Nasushiobara, Tochigi Prefecture, speaks during an interview at a Tokyo hotel on Dec. 11. SATOKO KAWASAKI
His wife had spirited away their daughter near the end of Golden Week, just days after he was enjoying the holidays taking her on hikes and to local festivals, recalled Watanabe, 40, now deputy mayor of Nasushiobara, Tochigi Prefecture. He recounted how he carried his daughter on his back and how they sang songs together until she fell asleep, snuggling against him.
His world was turned upside down that fateful day. Last month she turned 5.
“It is so important for children to feel loved by both parents, especially when they are growing up, and I think that my daughter feels abandoned by me, that I left her because I didn’t love her anymore,” Watanabe told The Japan Times during a recent interview in Tokyo. “The most painful thing about my situation is when I think about how my daughter must be feeling.”
Watanabe is one of many parents in Japan who have been torn away from their children after a falling-out with their spouse in a nation that grants only sole custody, usually to the mother, and where it is customary for parents not living with their offspring, to have little, if any, contact with them.
This has also been a widely reported harsh reality for foreign parents, including those living overseas whose children have been taken to Japan by estranged Japanese spouses.
These so-called parental child abductions are behind growing calls for Japan to join the international Hague treaty to prevent such cross-border kidnappings.
“These two problems are actually closely related because the domestic and international situation is the same — your children are abducted one day out of the blue and you are forbidden from seeing them,” Watanabe said.
For Watanabe, what followed was a long legal battle with his wife, and divorce proceedings, which continue.
Initially his wife let him see their daughter a few times, but that stopped abruptly when he was slapped with domestic violence charges — which he branded a lie.
His wife alleged he had threatened her with a large pair of scissors while she was pregnant and told her he knew yakuza who would be willing to help him out with the situation by pushing her off a station platform in front of a train. The violence charges were later dropped.
“There is nothing more terrifying than receiving an order to appear before the court over ‘DV’ allegations. I was completely distraught. The judge, however, recognized that much of her claims were questionable and warned she could be charged with false accusations, so she dropped the charges the day before the ruling was to be made,” Watanabe said.
But his wife then filed a lawsuit, demanding custody of their child and, again, adding allegations of abuse.
Last February, presiding Judge Tatsushige Wakabayashi at the Chiba Family Court granted Watanabe’s ex-wife custody of their daughter from the viewpoint of “continuity,” ruled that Watanabe had committed domestic violence and rejected his demand that his daughter be returned. The Supreme Court finalized the ruling in September.
While his legal battles dragged on, Watanabe asked lawmakers to address the issue and his case was deliberated on in the Diet.
Given his public profile, Watanabe originally wished to remain anonymous. But to garner public support for his situation, he recently came forward to tell his story to the press.
“I’ve been labeled a DV husband, and the judge completely ignored the facts and the law in my case. I had no choice but to stand up and fight,” he said.
Watanabe has solicited the help of a special group of lawmakers who are trying to get Judge Wakabayashi fired from the bench. Among the so-called left-behind parents in Japan, Wakabayashi has spurred widespread ire, especially when in 2011, he criticized then-Justice Minister Satsuki Eda for telling the Diet that priority should be placed on the welfare of the child rather than the “principle of continuity.”
“There are many people in similar situations. I cannot give up for their sake. It is not just about me and my daughter. This is a battle for all children and their parents,” Watanabe said.
According to data compiled by family courts, there were 409 parents seeking the return of their offspring from an estranged spouse in 2001, whereas by 2011, there were 1,985 parents seeking to get their kids back. The numbers, however, reflect only the legal cases filed by left-behind parents that were officially accepted by the nation’s family courts. Experts speculate they constitute only the tip of the iceberg.
Masayuki Tanamura, a professor of family law at Waseda University, said various factors are behind the increase in parental child abductions, including Japan’s sole custody principle and the current legal framework that generally grants that right to mothers.
“Times have changed — fathers are more involved in child-rearing, and the legal system — including the principle of sole custody — makes battles over children more likely to happen. I think this part of Japan’s legal system is outdated,” Tanamura said.
One major difference that makes Japan’s legal system peculiar is that when an estranged spouse initially takes a child, it isn’t considered a crime. This is because it is common for an estranged parent, generally the mother, to take the children to her parents’ domicile if a divorce is being contemplated.
But if the left-behind parent then subsequently tries to retrieve the offspring spirited away from their home, the action is considered kidnapping. Tanamura claimed there are many cases in which parents who spirit offspring away are unaware such action could be construed as abduction. From their point of view, they are merely considering a divorce or fleeing an abusive environment.
“It is hard to label all parental kidnappings as illegal . . . but at the same time, there are many cases that could constitute a double standard. It’s OK for mothers to first take the children away, but when the fathers try to get them back, this is illegal,” Tanamura said. “This is based on the longtime concept that children belong with their mothers.”
To prevent children from losing access to both parents after a separation, Article 766 of the Civil Law was revised in 2011 to specify that visitation rights, child-support payments and other matters be determined during nonlitigated divorce proceedings, and that the welfare of the child be considered first.
But even this change can’t help people like Watanabe because his case was ruled on after the amendment. “The aim of the revision is to promote forming agreements (over child care) when getting a divorce. But there is nothing that guarantees compliance,” Tanamura said.
Tanamura and other experts thus agree that if and when Japan signs the 1980 Hague Convention on the Civil Aspects of International Child Abduction, it must at the same time institute fundamental changes in the legal system, and the public mindset must also be overhauled, or joining the convention will lead to naught.
John Gomez, chairman of the recently founded Kizuna Child-Parent Reunion, a group of Japanese and non-Japanese parents, friends and supporters advocating the right of children to have access to both parents, emphasized the need for left-behinds to cooperate because simply joining the Hague Convention will not solve anything in Japan if it continues to take a one-sided approach to domestic custodial rights.
“The problem of international cases and in-country cases has the same root cause — Japanese family law and the courts,” Gomez said.
“The abduction issue affects all people in Japan — mothers as well as fathers, Japanese as well as non-Japanese.”
The Hague treaty aims for the swift return of children wrongfully taken out of the country of their “habitual residence” by a parent to prevent cross-border parental kidnappings. Of the Group of Eight countries, Japan is the only nation yet to sign the convention.
Japan has been under pressure from member states, including the United States, the United Kingdom and Canada, to join the convention, but it has been reluctant, given strong domestic opposition, especially from Japanese mothers who claim they fled to Japan with their children to protect themselves from abusive ex-spouses.
Facing severe criticism from the international community, however, Japan finally reached the point of submitting a bid to sign the treaty and Hague-related legislation to the Diet during the last session presided over by Prime Minister Yoshihiko Noda’s Democratic Party of Japan. But the politicians instead spent most of their time bickering over internal power struggles related to other domestic issues, pushing the Hague Convention to the sidelines once again.
And it remains unclear whether the issue will move forward under the new government led by the Liberal Democratic Party.
Government officials have expressed confidence that once deliberations begin, the Hague bid will be approved by the Diet. But parents, including Gomez, a longtime Japan resident who himself is separated from his Japanese wife and is having difficulty seeing his daughter, say joining the Hague treaty is only a step in the right direction, not a silver bullet.
Gomez explained that on the legal front, parental kidnappings must be stopped, visitation rights made enforceable and the idea of joint custody introduced. But he added that public awareness must also be raised at the same time so the public understands the benefits of the changes to ensure the rules are followed.
“The Hague is only one tool. The ultimate goal for us is a social and legal transformation of Japan . . . a complete transformation in terms of mindset and practice,” Gomez said. “We firmly believe, Japanese and non-Japanese alike, that the social and legal transformation is for the betterment of Japanese society and children and improvement in the quality of life.”
More stories and more news programs are popping up these days. Japan is moving toward signing the Hague. Unfortunately, they have already built in loopholes so that no children will have to be returned from Japan to their habitual residence. Parents within Japan are also working hard to get legislation passed that will allow children to meet with both parents. The media has been covering more stories related to these issues. While these stories are often a bit slanted they are never the less making it into the news. More people are slowly becoming aware of the problems surrounding the family courts and their ineffectiveness to deal with custody issues. Below are 4 links, 2 focus on the Hague and the other 2 are related to kids not being able to see both parents.Read Full Post | Make a Comment ( 1 so far )
After years of international pressure, Japan is finally moving to sign the Hague Convention on child-custody disputes.
The government plans to propose new legislation to the Diet in March so that it can sign the treaty.
The United States and Europe have been particularly critical of Japan’s foot-dragging on the issue.
Still, it remains unclear whether the bill will be passed in the current Diet session due to persistent opposition within both the ruling and opposition parties. Submissions of key legislation could also take precedence.
The bill was based on proposals submitted to the justice minister by the Legislative Council, an advisory panel, on Feb. 7.
Among the Group of Eight advanced nations, only Japan has yet to sign and ratify the Hague Convention on the Civil Aspects of International Child Abduction.
The convention is designed to deal with cross-border “abductions” by parents of broken international marriages.
It requires a parent to return a child to the nation of habitual residence if the child is under 16 and taken to another country without the consent of the ex-spouse.
The convention stipulates that the parents of the child must settle the custody dispute in the country to which the child is returned.
The panel’s proposals outline procedures that allow, among other things, a family court to rule whether a child must be returned to the country of habitual residence after a request for the child’s return is made.
The court’s discussion of the case takes place behind closed doors.
But the Japanese parent can appeal the ruling to a high court and the supreme court.
If a Japanese parent does not comply with the ruling, court officials can forcibly remove a child to return him or her to the country of former residence.
The outline also spells out cases in which the Japanese parent does not need to return the child:
When a child has adjusted to a new environment after spending a year in Japan;
When the other parent calling for the child’ return did not actually take care of the child;
When the other parent gave consent to the former Japanese spouse taking the child to Japan;
When a child refuses to return to the country of former residence; and
When a child is at great risk of being tormented, both mentally and physically, as a result of abuse by the non-Japanese parent and abuse of the Japanese parent by the foreign spouse.
The latter refers to instances when the Japanese parent returned to country of former residence with the child at the request of the former spouse. It also envisages the failure of a foreign parent to look after the child due to a history of domestic violence, drug addiction or alcohol abuse.
The Foreign Ministry is pressing for passage of legislation, calling it Japan’s pledge to the international community.
In a summit with U.S. President Barack Obama in November, Prime Minister Yoshihiko Noda expressed his resolve to join the convention after submitting a bill to the Diet session that began last month.
But the ruling Democratic Party of Japan and opposition parties are divided over some clauses of the draft bill.
The government needs the cooperation of the opposition camp to win Diet passage of the bill. However, the two Diet chambers are controlled by differing blocs, and the opposition camp is stepping up its confrontational approach to the Noda administration with respect to policy issues.
The bill could take a back seat in Diet discussion because the government is now focusing on bills to raise the consumption tax rate, analysts said.
By MANABU SASAKI / Staff Writer Asahi Shimbun
A woman who has not seen her two children since March, when the Great East Japan Earthquake struck, is starting to give up hope of ever seeing her sons again.
The woman’s apartment still contains the brand-new jacket and school bag that her older son would have used if he had entered elementary school in April. The mother, a civil servant, also finds herself searching for her two sons in her apartment when she returns home from work, despite knowing deep inside that her home is empty.
But it wasn’t the quake or tsunami that separated her from the boys, aged 5 and 7.
“It is like a kidnapping,” said the woman, who lives in the Tokai region.
The boys are now in the United States with the woman’s American husband, who has refused to return to Japan, citing radiation fears. He has also filed for divorce.
There is very little she can do to win custody of the children because the Japanese government has not passed the necessary legislation to join the Hague Convention on the Civil Aspects of International Child Abduction. Under the convention, if a parent illegally flees with a child under 16 to another nation, the child has to be returned to the former nation of residence.
Tokyo signaled its intention to ratify the treaty after a number of high-profile cases involving Japanese mothers taking their children to Japan without the consent of their foreign ex-spouses or in defiance of court orders.
But since the Fukushima nuclear accident started in March, Foreign Ministry officials have received a number of inquiries from Japanese parents whose spouses have left Japan for their home nations with their children in tow, using the accident at the Fukushima No. 1 nuclear power plant as an excuse not to return.
About the only thing ministry officials can do is pass on lists of lawyers in the foreign nations where the spouse has gone to.
“We feel sorry for the parents because this is a form of negative publicity from the nuclear accident,” a ministry official said. “We hope the couples will hold calm discussions based on objective information about radiation.”
The Tokai woman’s husband in March took the boys to the United States for what was supposed to have been a one-month visit. But the Great East Japan Earthquake soon struck, and the husband refused to return to Japan, expressing concerns that the sons could be exposed to radiation from the Fukushima nuclear accident.
Daily reports in the United States showed the damage from the quake and tsunami. Nuclear experts often appeared on TV citing the dangers of the radiation spewing from the Fukushima plant.
The woman used a TV phone over the Internet to talk with her husband and children, trying to convince them that the Tokai region was safe.
But the children, perhaps influenced by their father, also expressed concerns about the danger of waves flowing inland as well as poison in the air.
The husband initially said he would return to Japan once the situation at the nuclear plant stabilized. However, by summer, he had withdrawn about $17,000 from his wife’s bank account and had rented an apartment in the United States.
In November, he filed a lawsuit in the United States seeking a divorce. He did not abide by his initial promise even after the Japanese government declared the situation at the Fukushima plant to be under control.
The woman met her future husband in 2001, when she was studying in New York. They were married the following year.
The husband was still a student, and living in New York was not economically feasible. So the couple decided to move to Japan with the wife working to support the family.
But now, she lacks any assurance of finding a stable job in the United States. She feels the possibility is low that she would be granted custody of the children under such conditions.
She has consulted with a U.S. office handling inquiries about abducted children. If Japan had joined the Hague Convention, the United States would have been obligated to return her children to Japan as a member of the convention, the office told her.
But Japan has not yet joined, leaving her and her children uncovered for protection under the convention.
She also consulted a lawyer in the United States because she felt the only way to get her children back was through a lawsuit of her own. But she was told that U.S. courts looked at how the children were being raised over the most recent six months. That would put her at a disadvantage because she had been separated from her children since the natural disasters.
Having allowed her children to remain in the United States because of radiation fears ended up working against her.
A court case in the United States can be time-consuming and costly, and she has no guarantee of winning.
Through letters and phone calls, she repeatedly tells her two children that they mean everything to her, but she has no idea when she may see them again.
“I hope the government joins the convention as soon as possible to prevent parents from successfully fleeing with their children,” she said.
Officials said there have been cases of lawyers recommending that parents flee Japan with their children because there is a good chance they can get away with it.
“Custody battles with a foreign nation should be resolved through international rules after joining the Hague Convention,” said Mikiko Otani, a lawyer who specializes in divorces among international couples. “It is extremely difficult for an individual to find a lawyer in a foreign nation specializing in such matters and proceeding with legal action.”
She also said many parents in Japan face difficulties because there are few lawyers knowledgeable about international divorce cases.
“There are risks involved in international marriage because of differences in laws and cultures,” Otani said. “There are also major differences in thinking on divorce and custody, so there is a need to be aware of the need for a basic understanding of the related laws.”
Outline of child custody bills approved Ministry to draft new regulations that would come into force after Japan signs Hague convention
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.
Colin P.A. Jones
Professor, Doshisha University Law School
(Photo by Shinchosha)
Japan has developed a growing reputation as a haven for international parental child abduction. Major media outlets in the United States and other countries have brought attention to a number of recent cases of children being unilaterally removed by a Japanese parent from the United States before or after divorce, often in violation of American law and court orders.
Attempts to achieve the return of children taken to Japan through the Japanese legal system tend to be unsuccessful. As a result, some children who were born and raised in the United States have lost all contact with an American parent and other relatives, American friends, and the American part of their heritage as a consequence. The apparent lack of legal remedies for abduction in Japan is due to a number of factors that are discussed in more detail below.
Child abduction as more than just an “international” problem
From the outset it is important to understand that most of the factors which prevent the return of children taken from other countries also affect cases arising entirely within Japan, including some involving Americans married to Japanese nationals and living in Japan, and even the occasional case where both parents are foreign residents of Japan. In these strictly domestic cases also, marital breakdown all too often results in parents losing all contact with their children, notwithstanding the involvement of Japanese courts.
In other words, even though international cases tend to receive more publicity, they merely reflect structural issues in the Japanese legal system which have the effect of limiting the legal remedies of Japanese and non-Japanese parents alike. Thus, just as U.S. and other diplomats have sought change in the way cross-border abductions are dealt with by encouraging Japan to join the Hague Convention on the Civil Aspects of Child Abduction, a variety of Japanese parents’ rights groups have been seeking better protection of the parent-child relationship after divorce by lobbying for amendments to Japanese family law.
Despite the catastrophic earthquake and tsunami of March 11, 2011 and subsequent nuclear crisis in Fukushima, there are encouraging signs that Japan will soon move towards ratifying the Hague Convention. In May of 2011 the Diet also made encouraging amendments to its domestic laws relating to visitation after parental separation. Since these amendments have not yet taken effect (and may have a limited impact), this article will discuss both the law as it was – and had been for decades, as well as the nature of these changes.
The role of law in Japan
The Japanese legal system is based heavily on foreign models – German and French codes and institutions in many instances, but the United States as well in the case of its constitution and many areas of business law. Indeed, it is possible to describe Japanese family law and how Japanese courts resolve child custody issues in terms that make it seem quite similar to the United States or other Western countries. However, the law in Japan is much more “top down” than it is in the United States, where many important doctrines have been built through the ground up through litigation. By contrast, in Japan the law is more likely to be a medium for expressing and exercising authority, and judges (authority figures themselves) are less likely to question the exercise of that authority. The top-down character of Japanese law can be seen in statutes and procedural regimes which preserve maximum flexibility for judges and other government officials in terms of what they may do, while limiting the range of things that they must do.
Is parental child abduction a crime?
U.S. citizen parents whose children who have been abducted to Japan are likely to be told by Japanese officials that under Japanese law it is not a crime for parents to “abduct” their own children. However, there have been instances of Japanese and foreign parents being arrested, even convicted – for kidnapping their own children. Article 224 of the Japanese Penal Code describes the crime of “abduction of a minor” in very sparse terms: “[a] person who kidnaps a minor by force or enticement shall be punished by imprisonment with work for not less than 3 months but not more than 7 years.” An American lawyer reading this would probably seek more information on how the terms “kidnap,” “force,” and “enticement” are interpreted and would probably look to case law for guidance. But court precedents are not likely to be as useful for interpreting statutes such as this, at least not to the same degree as they would in the United States.
As a result, both the characterization of parental abduction as a non-crime and the arrest of some parents for criminal abduction can co-exist as “correct” interpretations of Japanese law. An abduction which disrupts public order (a father grabbing his children off the street) may be treated as a crime, while those which do not (a mother getting on a plane or a train with her children to go live with her parents, or merely refusing to return to the United States after a visit to Japan with the children) probably will not. Japanese law enforcement authorities have a basic policy of not getting involved in “civil disputes” but also wide discretion in deciding if a particular dispute is a civil one or not, meaning that the most important determination about whether a particular case of abduction is a crime or not may be made at the police station rather than the courthouse.
Custody determinations as an administrative disposition
Similarly, with respect to decisions regarding parental authority, custody, and visitation involving children in divorce, there are no statutory guidelines which a court must follow, such as the principle found in U.S. law that frequent and continuing contact between a child and his or her parents after they separate is presumed to be in a child’s best interests. Furthermore, since there is also no Japanese constitutional jurisprudence establishing a fundamental interest in having and raising children or otherwise recognizing a constitutionally-protected dimension to the parent-child relationship, decisions about children made by Japanese judges are essentially a form of administrative disposition made in the absence of law. As discussed below, many of the most important decisions a judge may make about children are likely to be rendered in the form of “decrees” following non-public, non-trial proceedings.
Japanese family court judges thus have tremendous discretion when it comes to making decisions about children and may do so by, for example, completely reversing a foreign custody, refusing to award any visitation to a non-custodial parent, awarding visitation for only a few hours once a year, or ordering the custodial parent to send a few photographs of the child every year in lieu of visitation.
Divorce and child custody as part of a consensual process
In Japan, both divorce and what happens to the children afterwards are presumed in the first instance to be determined through consensual arrangements. Japan’s Civil Code provides for divorce by agreement with judicial divorce being available only when the parties cannot agree and a limited range of grounds for divorce are applicable. Furthermore, unlike in the United States where even a consensual divorce involves court filings and possibly a judicially-approved parenting plan or separation agreement if children are involved, a Japanese cooperative divorce is accomplished by simply filing the relevant paperwork with a local government authority which will reflect the change in marital status and allocation of parental responsibility in the parties’ family registry. Since approximately 90% of divorces are accomplished through this process, courts only become involved in the small minority of cases where parties cannot agree on a cooperative divorce or where there is a dispute over children or other matters arise after divorce, including situations where one parent abducts the child or refuses to allow visitation after divorce.
Under Japanese law, parties seeking a judicial divorce or other judicial relief relating to child custody must first attend family-court sponsored mediation. Mediation sessions take place in a family court mediation room in front of a mediation panel composed of a judge, two mediators chosen by the court, and court personnel. Mediation continues at a pace of about one session a month until the parties agree on a result or the judge decides that further sessions are pointless. Although the court takes the lead in administering the mediation, its primary purpose at this stage is to encourage the parties to agree on a result.
Approximately 8% of Japanese divorces – most of those which are brought into court – are achieved through the mediation process. The remaining 2% are either judicial divorces resulting from litigation commenced after mediation has failed, or divorces by settlement after such litigation has commenced but before a divorce judgment. Therefore, one aspect of divorce proceedings that may be confusing is that there are a variety of procedures which vary depending upon the scope of the court’s involvement and responsibility. There are cooperative divorces which involve no court action whatsoever, mediated divorces and divorces by settlement where the court is involved but not responsible for the result, and judicial divorces where the court is involved and responsible for the final result (technically there are two additional types of divorce which are rare and not discussed in this article). Judicial divorces account for only about 1% of all divorces. These differing procedural regimes are also relevant to child custody proceedings.
Because Japanese law provides for court proceedings which in many cases lead to a result for which the court is not responsible, there may be a significant gap between what U.S. citizen parents expect from family courts and what family courts consider their role to be. A party seeking the return of or at least visitation with a child usually wants the court to “do something” as soon as possible. Since most cases are going to start with mediation, however, the family court may view its role primarily as one of encouraging the parties to agree upon a mediated result. Furthermore, since at the mediation stage the court is supposed to be playing only a supporting role, it may be reluctant to provide interim remedies (including ordering the handover of the child) unless they are clearly in the best interests of the child.
Other aspects of Japanese family law may also come into play at the mediation stage. Although divorce is exceptionally easy in Japan so long as both parties agree to it, obtaining a litigated divorce unilaterally over the objections of one party is exceptionally difficult and time consuming. In addition, just as there is little formal law specifying what should happen to children after their parents separate, Japan’s Civil Code is similarly sparse when it comes to providing for property distribution, alimony, and child support. Accordingly, courts have developed a variety of doctrines to protect the financially weaker party from being divorced on unfavorable terms.
A number of amendments to the Civil Code were made in May 2011, though it is unclear what effect they will have on current family court practice. First, the amendments make it easier for public authorities to temporarily suspend parental authority in cases of child abuse and neglect. Under prior law the only remedy was permanent termination of parental authority. Second, under the amended law, parents seeking a cooperative divorce will be required to provide for visitation arrangements and other forms of contact as well as allocate child-rearing expenses, in each case giving priority to the welfare of their children. If they are unable to do so then a family court may make the determinations in their place. While it may seem a minor change, the fact that visitation is now even mentioned in the Civil Code could be said to represent significant progress, since before this amendment it was nothing more than a judicially-created disposition.
However, it is not clear that courts (as opposed to parents) are required by the new law to make decisions in the best interests of children, or that visitation is presumed to be good for children. Combined with the addition to another part of the Civil Code which imposes upon all parents a statutory duty to act in the best interests of their own children, it is not clear whether family courts will regard the new amendments as being anything other than a codification of their existing practice.
Parental authority and custody
Although determinations relating to children are generally made in the context of divorce proceedings, an important procedural difference emerges if mediation fails. To understand this, however, it is necessary to briefly review the concepts of parental authority and custody. Under Japan’s Civil Code, married parents jointly exercise parental authority over minor children. Parental authority includes both the rights and duties of the parent relating to the care and upbringing of their children, but also the management of the children’s property and the taking of legal actions (such as applying for a passport) on their behalf, or even consenting to the child’s adoption. Because parental authority can be relevant to commercial transactions and dealings with government agencies, it can be confirmed through the family registry system. An extract from a child’s family registry may be required for passport applications or other dealings where proof of the parent-child relationship and the parental authority of the person making the application are required.
Under the cooperative divorce regime, parents simply make a notation on the divorce form as to which parent will retain parental authority over which children after divorce. One significant limitation, however, is that Japanese law does not allow for the formal continuation of joint parental authority after divorce even if both parents agree to it.
Procedurally, court involvement makes custody and parental authority more complicated. This is because it is possible for courts to separate the “care and custody” element of parental authority from the property management/legal representative aspect and award them to different people. Thus, a mother could be awarded custody over the child, who she would live with and raise, while the father would be awarded parental authority (minus the custodial element), which though being reflected in his family registry, would be limited to only the authority to manage the child’s property and engage in legal acts in the child’s name. In reality, this type of split custody is rare. The true significance of a court’s ability to deal with these two elements of parental authority separately is more important for procedural purposes rather than the end result.
Judicial determinations of parental authority are generally only made (or changed) by courts at the time of a judicial divorce following a trial. If divorce mediation fails, the onus is on one of the parties to proceed with divorce litigation. If neither does so the parties will simply remain married under the law but live apart. Parental authority will nominally remain with both parents.
However, with respect to matters relating to the custody portion of parental authority ( i.e., who will live with and raise the child, visitation, child support payments, and whether a taken child should be returned), if mediation fails the court will automatically proceed with making a determination, even if neither party proceeds with divorce litigation. These determinations may also be made (or changed) by courts after divorce, in the case of disputes over visitation after a cooperative divorce, or when a child is abducted to Japan after a divorce has taken place in the United States or elsewhere.
Procedurally this is significant because to the extent they are decided by a judge at all they are likely to be decided through the issuance of a judicial decree after mediation fails. Decrees are issued through “non-trial” proceedings, with very loose procedural and evidentiary requirements. Accordingly, what for most parents is the most important part of the proceedings – the part in which the fate of their children is decided – involves a process which seems like a trial (since there is judicial involvement) yet lacks many of the procedural or evidentiary protections that the average person is likely to expect from a trial.
Decrees can be appealed, and if the case advances to divorce litigation, a judge granting a judicial divorce can also make decisions relating to children ancillary to the divorce. In reality, however, it is probably unlikely that judges will second guess a prior decree on custody issues absent blatant mistakes or a change in circumstances.
In cases involving child abduction or interference with visitation, even a complete “win” in court may prove meaningless. Japanese civil law struggles with the enforcement of judgments in many contexts, but it is a problem that is particularly evident in disputes over children. Japanese courts lack marshals with police-like powers that can facilitate enforcing civil judgments. Similarly, Japanese judges do not have broad powers to sanction or imprison recalcitrant parties for contempt of court. Nor is there a mechanism for courts to require the police to become involved in such cases.
The first step in enforcement of a family court decree may be for a family court to issue a “compliance recommendation.” This may involve further inquiries by a family court investigator to confirm the circumstances behind the refusal of the parent having custody to cooperate with visitation. Even if a compliance recommendation is issued, however, there are no sanctions for non-compliance. In fact, compliance recommendations are considered to be a form of casework that is an extension of the courts’ role as a social welfare institution rather than a judicial one. As such, they have no legal force whatsoever.
In terms of actual legal remedies for enforcement, Japanese civil law does not contain any provisions which deal specifically with enforcing orders relating to the compulsory transfer of a child from one parent to another. One remedy is for the court to impose a non-penal monetary fine on a party who refuses to comply with a court order to return an abducted child or cooperate with visitation. However, this type of “indirect enforcement” may be of limited efficacy against parties who do not have a regular income or identifiable assets subject to forfeiture.
In the case of a court order for the return of a child who is young enough that they can be deemed not to have the capacity to form their own intent, it is also possible to seek “direct enforcement” of the order. This involves a district court bailiff attempting to physically accomplish the return of the child. Although the bailiff may request police accompaniment if there is a fear that the abducting parent may become violent, the police will not get involved if there is no crime. The bailiff himself does not have the power to arrest a non-cooperating parent. Thus, although direct enforcement is sometimes successful, it can also sometimes be frustrated by a taking parent through the simple expedient of stubbornly refusing to let go of the child or even just hiding.
Failing any of these remedies, the final arrow in the judicial quiver is habeas corpus. Based on the ancient common law remedy for unlawful detention by government officials, habeas corpus in Japan is used to order an abducting parent to bring the child to court for an inquiry into why they have been “detained.” A parent who refuses to follow a habeas corpus summons and bring an abducted child to court may be subject to imprisonment and/or penal fines. It is thus the only remedy for abduction available to the judiciary where there is the possibility of criminal sanctions for non-compliance.
While it is not uncommon for left-behind parents to immediately file for habeas corpus for children who have been taken to Japan, there do not appear to be any cases where a Japanese court has found the detention of a child to be “significantly unlawful,” even if it involves the violation of a foreign court order or has resulted in criminal proceedings in that country. There have been a number of cases where Japanese courts have both recognized the validity of a foreign court order awarding custody to the foreign parent while refusing to grant habeas corpus relief.
Domestic violence, legislative amendments, and the Hague Convention
The Japanese government is often criticized for appearing to drag its feet on adopting the Hague Convention. As the above discussion shows, however, meaningful implementation of the convention would involve significant amendments to Japanese domestic law. That this process may require a wide-ranging debate is understandable in a democratic society such as Japan.
In the course of the debate over the Hague Convention, one concern that has been expressed repeatedly is how to deal with situations where a Japanese mother residing abroad unilaterally returns to Japan with her children out of fear of domestic violence in the United States or other countries. While domestic violence is a legitimate policy concern, it is also an issue that can be assumed dealt with adequately through the legal system of the United States or other Hague Convention signatories. While it would be easy to view the concerns about domestic violence as primarily reflecting a lack of faith in the judicial systems of potential treaty partners, domestic violence is also controversial in strictly domestic custody cases. Japanese law defines “domestic violence” in exceptionally broad terms and it is often interpreted even more broadly so that not only physical violence, but verbal abuse, psychological “violence,” and even “economic violence” is sometimes included.
It has been suggested by some in Japan that the Hague Convention be signed, but with implementing legislation providing for exceptions that would prevent the return of children in cases involving domestic violence or abuse. The Japan Federation of Bar Associations has gone further in proposing that any legislation implementing the Hague Convention, if adopted, not only prevent return in such cases, but also if the taking parent would be subject to criminal prosecution if they returned with the child. Given the expansive definition accorded to domestic violence and abuse, it seems possible that virtually any instance of a child being taken to Japan could be characterized so as to fall into this exception. But this involves speculating on legislation that does not yet exist.
As noted in the introduction to this article, recent events in Northeastern Japan will have dramatically shifted the focus of policymakers in Japan. What can be expected in the immediate future in terms of the Hague Convention and further changes to Japanese family law remains to be seen. But natural disasters notwithstanding, Japanese people will continue to get married, have children and, in some cases, get divorced. So long as no changes are made, Japan will also continue to be regarded as a haven for abduction. This would be a sad thing since it is ultimately children – the ultimate resource in Japan, the United States, and everywhere else – who will continue to suffer.
Colin P.A. Jones is a Professor at Doshisha University Law School, a Life Member of Clare Hall, University of Cambridge, and has been admitted to the bar in New York, Guam and the Republic of Palau. He received his A.B. from the University of California at Berkeley, an LL.M. from Tohoku University, as well as a J.D. and LL.M. from Duke University School of Law.Read Full Post | Make a Comment ( None so far )
The U.S., Canada and four other countries have jointly urged Japan to take legal steps to ensure that parents who have removed their children after the failure of international marriages will not be preferentially treated contrary to an international treaty on cross-border child custody disputes, government officials said Tuesday.
The six countries — including Britain, France, Australia and New Zealand — submitted the joint statement in writing, the officials said. It was part of the Justice and Foreign ministries’ one-month public consultation from the end of September on interim proposals for domestic legislation prior to Japan’s accession to the treaty.
The rare move reflects the countries’ strong interest in Japan’s accession to the Hague Convention on the Civil Aspects of International Child Abduction. The treaty is designed to ensure the prompt return of children who have been abducted from their country of habitual residence.
The envisioned domestic legislation would indicate that children will not have to be returned when the parent has fled an abusive spouse or could face criminal prosecution, presumably in connection with the abduction of offspring, in his or her country of habitual residence.
The joint opinion, submitted by the Canadian Embassy in Tokyo on behalf of the six governments, states that the interim proposals deviate from the convention, which allows the return of children to be rejected only when they could face a “grave risk” if returned, making spousal violence and other reasons inapplicable, the officials said.
On October 16th, 2011 there was a demo in Tokyo for joint custody and the Hague. Kevin Brown, the co-founder of Children First (www.childrenfirst.jp), cycled from Kumamoto to Tokyo to raise awareness about child rights. It took him 31 days to reach Tokyo. Along the way he recieved help from other left behind parents. He stayed one to three days with fellow left behind parents in Fukuoka, Yamaguchi, Hiroshima, Kobe, Osaka, Kyoto, Okazaki, Hamamatsu, and Tokyo. Kevin, like most left behind parents has little access to his child. Like all left behind parents, he wants to see his child more than once a month for 4 hours, the average time awarded by Japanese Family Court Judges. Kevin would like to see Japan adopt a joint custody system similar to that in most western countries. Japan is the only G-7 country without joint custody. And Japan is the only G-8 country not to sign the Hague. Kevin stopped at 15 prefectural offices during his cycling tour. He spoke about joint custody and other issues affecting the well being of children. You can see about 1 minute of the demo if you click on the link: October 16th demo in Shibuya
The Japan Times published Kevin’s story: Dad seeks visitation reform
as did the Asahi Shimbu (nihongo): asahi shimbunRead Full Post | Make a Comment ( None so far )
A Japanese woman was arrested in the United States earlier this year for allegedly violating parental custody laws and is currently undergoing judicial proceedings, the government said Friday.
In an unusual case highlighting the complications in parental rights laws in international marriages, Japanese media reported that the 43-year-old woman had been wanted after taking her 9-year-old daughter to Japan without prior consent from her ex-husband, a Nicaraguan residing in the U.S.
An official at the Foreign Ministry’s Japanese Nationals Overseas Safety Division said the woman was arrested April 7 in Honolulu — apparently while on a visit to renew her green card — and was transferred to Wisconsin on April 30, where she is currently being held.
The official declined to reveal further information, saying the woman’s family asked that her private information not be disclosed.
Citing the woman’s lawyer, media reports said the woman’s 39-year-old husband filed for divorce in Wisconsin in 2008 and won sole custody of the child in 2009, the same year the divorce became final.
However, the woman brought the girl to Japan amid the divorce proceedings in 2008 and has been wanted in the U.S. for contempt of court and violation of parental custody laws.
After returning to Japan, she filed for custody of the child at the Kobe District Court and was granted custody this March. The court also allowed the child’s father the right to see his daughter in the U.S. However, both parties immediately appealed the ruling and the case is before the Osaka High Court, according to reports.
Japan has been under pressure from other countries to join the 1980 Hague Convention on the Civil Aspects of International Child Abduction, a treaty that sets procedures for settling cross-border child custody disputes as a result of failed international marriages.
The government decided in May to sign the treaty but has yet to officially endorse the international pact which so far has been joined by 86 nations.
An official at the Foreign Ministry’s Humanitarian Affairs Division said the woman’s arrest may have been prevented if Japan had already ratified the Hague treaty.
U.S. authorities would probably have advised the man against reporting the woman to the police — a move that could hurt his chances of retrieving his child — and ask him to proceed with the case based on the provisions of the treaty.
TOKYO, Oct. 15 — (Kyodo) _ (EDS: ONE PHOTO AVAILABLE)
An American who has been separated from his 6-year-old son due to his divorce from his Japanese wife completed a month-long 1,500-kilometer bike ride from Kyushu to Tokyo this week to raise awareness on the issue of child custody. Along the way, he stopped at local government offices to lobby for children’s rights to have access to both parents.
Kevin Brown, a 45-year-old English teacher and the founding director of civic group “Children First” in central Japan’s Aichi Prefecture, said that during his visits to more than 10 prefectural and municipal government offices he explained that children’s steady access to both parents should be guaranteed in line with the U.N. Convention on the Rights of the Child.
Brown, a native of Illinois, was parted from his son four years ago when his wife moved from Nagoya to southwestern Japan’s Kumamoto Prefecture. Every six weeks he travels by overnight bus to the prefecture in the Kyushu region to see the boy for five hours — the maximum amount of time agreed upon during the divorce settlement.
“When I started research, I was really disappointed in what I found — the sole custody system. Usually, the winner is the person who abducts the kids first,” Brown said in an interview with Kyodo News. “I want a kind of unlimited access to my son. Once every six weeks is not enough.”
The father said he learned of the Japanese child-custody system in the middle of the divorce proceedings, which were finalized in September. “I would like the kind of American system where, you know, every other weekend, overnight visits, birthdays, holidays you get to see the kids,” he said.
The English teacher said that since his son was only 2 when they were parted, the boy only speaks Japanese and has difficulty communicating with his father, who does not speak much Japanese.
Family courts in Japan tend to give mothers sole custody after divorce and it is not unusual for children to stop seeing their fathers after their parents break up. Brown pointed out that the average visitation awarded by the courts to parents without custody is four hours a month.
Brown said he underlined during his meetings with local government officials that Japan, which ratified the U.N. convention in 1994, has not implemented policies to secure children’s access to both parents and that the country is the only Group of Seven member to adopt the sole custody system upon divorce.
Article 9 of the U.N. pact says state parties “shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.”
The other G-7 countries are Britain, Canada, France, Germany, Italy and the United States.
The campaigner said some local government officials in charge of child welfare were not well aware of the issue related to visitations as they focused on protecting children from abuse and were “not too familiar with good parents not being able to see their kids.”
Although some workers told Brown that what local governments can do is limited as the matter should be handled by the central government, he said the awareness-raising tour was meaningful as “the first step in making change.”
Japan recently launched preparations for joining the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which establishes procedures for settling international child custody disputes.
However, Brown’s case will not be covered by the pact because it is not retroactive, only applying to cases that occur after its entry into force in Japan, and also because it deals with cross-border parental child abductions.
In late September, U.S. President Barack Obama welcomed Tokyo’s decision to enter into the Hague Convention but asked Japanese Prime Minister Yoshihiko Noda during their summit talks in New York that the Japanese government also “focus on the preexisting cases,” according to the U.S. State Department.
Noda said he was aware of the 123 active cases involving children who have been abducted from the United States to Japan, and vowed to “take special care to focus on these particular issues,” the state department said.
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TOKYO (Kyodo) — The Justice Ministry proposed Friday that children’s opinions be reflected when settling cross-border child custody disputes.
The idea was contained in the ministry’s draft interim proposals for domestic legislation that it is preparing for submission to a regular Diet session next year, before Japan joins an international pact related to the matter known as the Hague Convention.
Under the ministry’s draft legislation, the handing over of children to a spouse could be refused if there is a possibility that they could be subjected to violence.
If a year has passed since children were taken away and they have already adapted to their new environment or if children refuse, their hand over to a spouse could be rejected.
The cases would be examined by family courts behind-closed-doors. Under the proposal, court decisions could be appealed twice in the same way most civil cases are handled.
The ministry will solicit public comments on the interim draft via the Internet until Oct. 31.
Opinions are also being solicited regarding the Foreign Ministry’s proposal to set up a government organization to search for children in Japan entangled in cross-border custody disputes.
Japan decided in May to sign the 1980 Hague Convention on the Civil Aspects of International Child Abduction. It is the only one of the Group of Eight advanced countries yet to join the convention after Russia acceded to it in July.
(Mainichi Japan) October 1, 2011
The Yomiuri Shimbun
The government has decided to join the Hague Convention on the protection of children who are taken or kept in a certain country by one parent without the other’s consent when international marriages break down. The government is now studying the establishment of the necessary legal framework. However, some people have expressed caution about signing the treaty, raising such questions as how to deal with parents and children who come to Japan to escape domestic violence.
In May, the Cabinet decided Japan should participate in the Hague Convention, and this decision was conveyed by Prime Minister Naoto Kan to a summit meeting of the Group of Eight countries in Deauville, France, later that month.
The formal name of the treaty is the Hague Convention on the Civil Aspects of International Child Abduction.
The multinational treaty is designed to provide an expeditious method to return children abducted from one participating nation to another. It is also designed to prevent one parent from removing children from the country where they habitually reside without the consent of the other parent after the marriage collapses.
The convention was adopted at the Hague Conference on Private International Law in 1980 and enforced in 1983. As of July, 85 states are parties to the convention, but few Asian countries have joined.
Under the convention, a child under 16 years old should be returned to its place of habitual residence if one of its parents takes the child out of that country without the consent of the other parent after their marriage collapses. If the parent who remained in the nation of habitual residence demands the return of the child, that child should, in principle, be returned.
The convention is based on the idea that it would serve the best interests of the children if they remained in the nation of habitual residence and courts in that nation decide how the children should be raised.
On the other hand, the number of divorces among international couples has also increased, reaching about 20,000 in 2009.
In recent years, there have been many cases of Japanese women who married and began living in other countries, such as the United States, Canada and France, who returned to Japan with their children and refused to let their children have any contact with their fathers. This has become a major issue in North America and Europe.
As of May, there were 100 cases in which children had been removed from the United States, followed by 39 in Britain, 38 in Canada and 32 in France, according to reports received by the Foreign Ministry from other countries.
Under the Japanese “sole parental authority” system, only one parent has parental rights after a married couple has divorced. It is not unusual, therefore, for a parent without parental rights to be refused any contact with his or her children.
In the United States and Europe, joint parental authority or joint custody is common practice. Under this system, parents and their children who live separately after divorcing frequently meet and interact with their offspring.
Because of cultural and institutional differences in parent-child relations, other countries regard Japan as a nation that refuses to allow divorced parents to meet their children.
Last September, the U.S. House of Representatives adopted a resolution asking Japan to sign the convention. The French Senate adopted a similar resolution in January this year.
With Japan coming under increasing pressure, the government started preparations for joining the convention by studying the necessary legal arrangements and deciding to designate the Foreign Ministry as the “central authority,” stipulated in the convention, to discharge duties imposed by the convention on such authorities.
I have made some modifications to my cycling trip. I have decided to start in Kumamoto on the 13th of September. I picked this day because the judge will rule on my case on the 13th. I was expecting the ruling much earlier. As a result I thought it would be best to delay my start. It seems kind of symbolic to start in Kumamoto. I have a had to make numerous trips to Kumamoto for court. I can pick up my ruling on the 13th and then start cycling. It would be nice if I could get press or left behind parents to see me off on the 13th. If you don’t have plans feel free to meet me at the Kumamoto Family Court on the 13th of September.
I am still planning to handout flyers along the way. I am still planning on stopping at governors offices, court houses, and international schools. Due to my late start I may not have time to cycle all the way to Hokkaido. I will play it by ear. There are numerous left behind parents who can support me from Kumamoto to Tokyo but much less support exists between Tokyo and Hokkaido. I am working with other left behind parents now to pin down the exact days I will be in Saga, Fukuoka, Yamaguchi, Hiroshima, Okayama, Kobe, Osaka, Kyoto, Otsu, Gifu, Nagoya, Shizuoka, Yokohama, and Tokyo. I will be making updates on the Joint Custody in Japan Facebook page and the Children First Facebook page as well as my Facebook page. Please check one of these places every week or so.Read Full Post | Make a Comment ( 3 so far )
State Dept. Testifies at Child Abduction HearingSmith: Negotiate MOU with Japan Concurently with the Hague Convention…
“It is on behalf of left behind parents –in recognition of the extreme pain they suffer as victims of international child abduction, and in recognition of our own duty as the U.S. government to help bring their children home—that we hold this hearing today,” Smith said. “I believe child abduction is a global human rights abuse—a form of child abuse—that seriously harms children while inflicting excruciating emotional pain and suffering on left-behind parents and families.” Click here to read Chairman Smith’s opening remarks.
Smith, who chairs subcommittee on human rights of the Foreign Affairs Committee, said international child abduction occurs when one parent unlawfully moves a child from his or her country of residence, often for the purpose of denying the other parent rightful access to the child. “Left behind” parents from across the country, including David Goldman of Monmouth County, N.J., who Smith helped win a five-year battle to bring his son home from Brazil in December 2009, Chris Savoie, who was arrested by Japanese law enforcement when he attempted to recover his own children in 2009, and other desperate parents.
Japan is the only G-7 nation to not sign the treaty. Congress is not aware of any case where a Japanese court has issued and enforced an order to return an abducted child to the U.S. In fact, Australia, Belgium, Canada, Colombia, Germany, Italy, New Zealand, the European Union, Spain, U.K. & France have all pressed Japan to both sign the treaty and act to allow visitation, communication and a framework, or memorandum of understanding (MOU), to resolve current cases.
“I and many others urge the Obama Administration to negotiate a memorandum of understanding with the Japanese to ensure that the 123 left behind parents are not left behind a second time—this time by treaty promises that won’t apply to them,” said Smith, who traveled to Japan in February with the family of Rutherford, N.J. resident and Iraqi war veteran Michael Elias to meet with U.S. and Japanese officials. Elias’s two children were abducted with the help of the Japanese Consulate in contravention of U.S. court orders in 2008.
Kurt Campbell, Assistant Secretary of State at the Bureau of East Asian and Pacific Affairs in the State Department, testified that the unaddressed issue of international child abduction to Japan remains a serious concern for the Department of State and the United States Government.
“While the Convention will only apply to cases that arise after ratification, we continue at all levels to encourage the Government of Japan to implement measures that would resolve existing child-abduction cases and allow parents currently separated from their children to reestablish contact with them and ensure visitation rights,” Campbell said.
“We are prepared to use all necessary political and legal means necessary to facilitate contact and access for parents and abducted children,” Campbell said. “Currently the left-behind parents of children abducted to or from Japan have little hope of having their children returned and encounter great difficulties in obtaining access to their children and exercising their parental rights and responsibilities.” Click here to read Campbell’s testimony.
Susan Jacobs, Special Advisor for Children’s Issues in the Bureau of Consular Affairs at the State Department, told Smith and the human rights panel that the State Department welcomed Congressional support as it urges countries such as Korea, India and Japan to join the Hague Convention.
“The prevention and prompt resolution of abduction cases are of paramount importance to the United States,” Jacobs said. Click here to read Jacob’s testimony.
Thursday’s hearing follows the direct, emotional testimony at a May hearing of left-behind parents, who in most cases have never seen their children again after the abduction.
After returning from Brazil with abducted child Sean Goldman and his left behind New Jersey dad, Smith introduced “The International Child Abduction Prevention and Return Act of 2011”. The bill, H.R. 1940, would establish an Ambassador-at-Large dedicated to international child abduction, and office within the State Department to aggressively work to resolve abduction cases. The legislation would also prescribe a series of increasingly punitive actions and sanctions the president and State Department may impose on a nation that demonstrates a “pattern of non-cooperation” in resolving child abduction cases. In September 2010 Smith cosponsored and managed the debate in the House chamber on a similar bipartisan measure, H. Res. 1326, calling on the Government of Japan to resolve the many cases involving American children abducted to Japan. The bill passed 416-1.
Jul. 29, 2011 – 03:20PM
The United States pressed Japan Thursday to let parents see children snatched by estranged partners, saying it would not tolerate loopholes as Tokyo moves to resolve the longtime source of tension.
Western nations have voiced concern for years over citizens’ struggles to see their half-Japanese children. When international marriages break up, Japanese courts virtually never grant custody to foreign parents, especially men.
Hoping to ease a rift with allies, Prime Minister Naoto Kan has voiced support for ratifying the 1980 Hague treaty that requires countries to return wrongfully held children to their countries of usual residence. Japan would be the last member of the Group of Seven industrial powers to sign it.
Testifying before a congressional committee, senior U.S. official Kurt Campbell said that the United States was “quietly” speaking to Japan about the domestic laws that will accompany the Hague treaty.
“We will not rest until we see the kinds of changes that are necessary and we will certainly not abide by loopholes or other steps that will, frankly, somehow negate or water down” the agreement, said Kurt Campbell, the assistant secretary of state for East Asia.
Japanese critics of The Hague treaty often charge that women and children need protection from abusive foreign men. Japanese lawmakers are considering making exceptions to the return of children if there are fears of abuse.
Campbell voiced confidence that The Hague treaty already included safeguards.
He also urged Japan to give parents greater access outside of the treaty. If Tokyo ratifies the convention, it would only apply in the future and not to the 123 ongoing cases in which U.S. parents are seeking children in Japan.
“We are prepared to use all necessary political and legal means necessary to facilitate contact and access for parents and abducted children,” Campbell said.
But under questioning from lawmakers, Campbell indicated that the United States was not pushing for a separate agreement on existing abduction cases, saying that for Japan “it’s a complete non-starter.”
Representative Chris Smith, who has championed the abduction issue, pressed for an agreement on current cases. He feared that Japan’s entry into The Hague Convention would “result in lost momentum” as no children would immediately return.
“Delay is denial, and it does exacerbate the abuse of a child and the agony of the left-behind parents,” said Smith, a Republican from New Jersey.
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
Modern Tokyo Times (Part 1)
Child abductions unfortunately occur all over the world. And while some of the cases are solved, a majority of the cases are not, even when the parent knows who the abductor is – the other parent. A discouraging phenomenon in Australia has been parents, mainly Japanese, abducting the child or children back to Japan. The Australian Embassy located in Japan said in 2010, there were 13 abductions to date.
Despite Japan and Australia having close diplomatic and economic relations, getting these children back is no easy task. What is most unfortunate is the fact that the Australian government has been extremely unhelpful to these left-behind parents. Numerous Australian left-behind parents have not only been left-behind from their children, but believe their government has left them behind as well.
Matt Wyman, an Australian national, whose Japanese wife abducted their two sons to Japan in 2008, said that the Australian government has provided no assistance to date. Furthermore, the judges on a number of these left-behind parent cases were ineffectual and caused the parent to lose all contact with their abducted children. Parents like Matt Wyman have spent thousands of dollars on necessary legal fees only to see no progress. To make matters worse, his Japanese wife is now demanding child support while residing in Japan in which the Australian government simply enforces, although Matt Wyman’s children have been abducted.
Even though the Japanese government signed the United Nations Convention on the Rights of the Child in March 1994, which provides both parents access to their children, current Japanese laws only allow the Japanese parent to make the final decision regarding if the left-behind parent will receive visitation rights. Currently, Japan does not provide reciprocation to Australian court orders.
In Japan, the idea of “shared custody” is a foreign concept and after a divorce, custody is granted to one parent only. This includes children illegally abducted from the national home of origin. Furthermore, Japanese law clearly states that if the Japanese parent that abducted the child/children dies, the illegally abducted child/children do not go to the parent left behind or another foreign relative. Instead, they are given to the Japanese grandparents.
In the last 55-plus years, there has yet to be a case where a child has been returned to the parent after being abducted to Japan. Therefore, Japan is seen as a safe haven for the abduction of children. In fact, even non-Japanese parents flee with abducted children to Japan and exploit the system there for their own benefit.
Australia is one of the most beautiful locations in the world. There is so much to see and do that it is never a dull moment. However, the beauty of the country is marred by this current situation. Presently, like the Federal Bureau of Investigation (FBI), the Australian Federal Police have been unable or unwilling to extradite parents from Japan who abducted children. Australia needs to do much more to protect all left-behind parents and inhibit further parental abductions to Japan and determine a concrete method to get children back to their left-behind parents.Read Full Post | Make a Comment ( None so far )
The Hague Convention on the Civil Aspects of International Child Abduction Does:
* Determine Jurisdiction for Determination of Custody Based on Habitual Residence of the Child.
* Include Safeguards to Ensure the Child’s Physical and Emotional Welfare.
* Guarantee the Child Access to Both Parents throughout All Proceedings.
* Protect All Children Regardlesss of Nationality
* Require the Return of a Child to a Potentially Dangerous Environment.
* Automatically Grant Custody to Non-Abducting Parent.
* Instigate Criminal Charges Against the Abducting Parent.
* Discriminate on the Basis of Nationality or Gender.Read Full Post | Make a Comment ( None so far )
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 )
Prime Minister Naoto Kan’s administration said in May it would establish legislation as part of preparations for Japan joining an international convention to prevent cross-border abductions of children by their parents.
Despite international pressure to sign the 1980 Hague Convention on the Civil Aspects of International Child Abduction, Japan had been reluctant amid strong opposition from politicians in the ruling and opposition parties, experts and Japanese mothers who took their children to Japan after failed international marriages.
Japan’s decision was welcomed by the international community, but it is still unclear whether the country will actually be able to sign the treaty anytime soon.
What does the treaty entail?
The Hague treaty aims “to secure the prompt return of children wrongfully removed to or retained in” a member state. The treaty covers children up to age 15.
A typical example of what the treaty tries to address would be a case in which an international marriage has failed and one of the spouses takes offspring out of the country where the child has been living without the consent of the other parent. Such a physical removal may also be in defiance of a court custody decision, such as in cases of divorce when both estranged spouses have certain custody and visitation rights.
If offspring are spirited away from a country, the parent who thus lost custody would file an abduction complaint with the government, or “central authority” that handles such matters.
If both the nation that the offspring are removed from and the one they are taken to are Hague signatories, the designated central authorities of the two nations would seek to ensure the safe return of the child to its “habitual residence.”
But if the nation where offspring are taken to is not a member of the treaty, such as Japan, it is not obliged to hand over the offspring. This can cause bilateral friction on a political level, and also lead to charges of felony abduction being leveled at the parent who took the child or children away.
As of April, the treaty had 85 signatories, including Australia, Brazil, New Zealand, South Africa and Spain. Of the Group of Eight countries, only Japan and Russia have refused to join.
What prompted Japan to move toward joining the Hague treaty?
Although not the first child abduction case involving a Japanese parent, an incident in September 2009 brought Japan’s stance on the issue into the international spotlight.
Christopher Savoie of Tennessee came to Japan to reclaim his children from his Japanese ex-wife, who had brought them to the country without permission.
Savoie was arrested by Japanese police for allegedly attempting to “kidnap” minors, but prosecutors didn’t file criminal charges against him. The case was widely reported by both the foreign and Japanese media and became a bilateral diplomatic headache.
International pressure to sign the Hague treaty has increased since then.
According to the Foreign Ministry, there are 100 cases involving Japanese spouses who took their children to Japan from the U.S., 38 who brought offspring here from the U.K., 37 from Canada and 30 from France. But these are just the numbers reported to the ministry. The actual number is believed to be higher and to stretch back many years.
Why has Japan been reluctant to sign the treaty?
The government feared that Japanese mothers who claimed to have been victims of domestic violence would be forced to return their children to the abusive environments they fled from.
“If Japan were to sign the Hague Convention, (my child would) be forced to live with an abusive father and be exposed to violence again,” said a women who attended a government panel discussion on the Hague treaty in March. “And I will become a (declared) criminal.”
The Hague treaty in principle is geared toward returning offspring to their country of habitual residence.
Cultural and legal differences have also been noted, as many Western countries have a joint-custody system. Japan uses a system that grants sole custody, usually to the mother.
Are there circumstances under which a child is not returned to the country of residence?
-Article 13 also says a state is not obligated to return a child if “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.”
But experts have pointed out that the clause is vague and opponents argue that it does not include abuse against mothers.
According to the data collected by the Hague Conference on Private International Law released in 2008, only 20 percent of all global return applications were either rejected or judicially refused.
How will Japan address the strong concern about cases of domestic violence?
The outline of a draft bill approved by the Cabinet stipulates that the return of the child will be denied if the child has experienced physical or verbal abuse “and is in danger of being subjected to further abuse if returned to its habitual residence.”
In addition, the child will not be returned if the spouse has been the victim of “violence that caused the child to suffer from psychological trauma” and that the parent was in danger of further abuse if he or she returns with the child back to the country the offspring was taken from.
Experts, however, noted that the conditions for rejecting the return are extremely strict.
“The draft lists various conditions, not making it easy for the spouse to claim domestic violence to make sure that the child would not be returned,” attorney Mikiko Otani said. “And the parent would also need to prove that there was domestic violence.”
What are the positive aspects of Japan joining the treaty?
There are Japanese parents whose children have been taken away to another country by their ex-spouses. Japan, not being party to the treaty, has been powerless to rectify these situations.
Otani, an expert on family law, pointed out that there are many cases in which the ex-spouse is from a member country of the convention and that government has the responsibility to deal with these international parental kidnapping cases.
In Japan, the responsibility falls on the individual because Tokyo has not signed the treaty.
Otani also expressed concern that if Japan continues to delay joining the treaty, other member states will take harsher measures.
In the U.S., for example, several Japanese mothers are on the FBI website, wanted for “parental kidnapping.”
“I think it comes down to the fact that the Hague treaty is the active international rule,” Otani said. “If Japan refuses to join the convention, all the (member states) can do is make sure that the children cannot be taken out of their countries. They already have a tendency to do so, but I think they will make it even harder for the children to leave.”
In many cases, court orders are issued ordering the child not to leave the country.
Does this mean that Japan will immediately conclude the convention?
No. Even if the Japan signs the treaty, it needs Diet ratification. Related bills must also be drafted and passed.
According to the draft legislation, the “central authority” will be the Foreign Ministry, which will be in charge of overseeing cases related to the Hague treaty, including locating abducted children, taking measures to prevent child abuse and advising parents on the voluntary return of children.
But there is still strong domestic opposition among the public, as well as in both the ruling and opposition camps, and it is unclear how soon Japan will be able to conclude the treaty and enact related domestic laws.
If Japan joins the treaty, would it apply to current cases?
No. The treaty will only apply to cases that are brought against Japan after it signs the Hague Convention. Experts say it will be up to the government to decide how to handle the cases that occurred before Japan signs the treaty.
Otani pointed out that there were cases in which the mothers eventually want their children to make the most of their dual nationality, such as visiting the country they were taken away from, but can’t for various reasons, including the mother’s fear of being arrested if she were to accompany the offspring to a nation where she is listed as a fugitive.
“It may be impossible to resolve all cases or return the children, but there may be some fathers who would just be happy to be able to have access to their children,” Otani said. “The benefits of these children are being robbed . . . and I think that it is necessary to establish a (bilateral) scheme for those who want to resolve their case so that the children” can visit both countries freely.
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.
A draft law on joining the Hague Convention on the Civil Aspects of International Child Abduction has been submitted to the Lower House of the Russian Parliament. The convention paves the way for protecting Russian children from abduction and bringing those who violate the convention to justice.
The convention was concluded in The Hague in October 1980. At present, 82 countries, including the majority of the CIS member countries and the Baltic States are party to the convention. The convention ensures prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state that has joined it. It also helps to honour the rights of guardianship over children and provides access to divorced parents to communicate with them.
Lately, noisy scandals linked to children of mixed families of Russians and foreigners have cropped up one after another. Russia has no bilateral agreements on mutual judicial assistance on civil affairs with the majority of states, which detain children born to such families.
When Russia joins the convention, it will get an opportunity to defend children born to parents of mixed marriages, Russians married to foreigners, says a member of the Lower House committee handling the issues of family, women and children, Nina Ostanina. The deputy emphasizes that this concerns problematic situations like that of the actress Natalya Zakharova who has been denied access to her daughter Masha living in France for several years.
“There are precedents with a positive outcome. For one, a Belarus sick girl, who underwent medical treatments in Italy, was detained by an Italian family because they liked her. However, the child was returned to Belarus following a verdict by a court in Genoa in line with the convention. In fact, Belarus is a participant of the convention,” Nina Ostanina said.
At present, none of the verdicts issued by foreign courts concerning Russian children can be used in Russia. However, when Russia joins the convention it will get an opportunity to use them. It has been proved that it’s no easy task to implement the convention. The key task before Russia is to set up a central body to implement the convention in the country. It is entitled to assist in searching for children who have been abducted by parents and in the implementation of the decisions by foreign courts. It’s unclear which ministry will undertake these functions, Education, Justice or some other ministry. The final step will be educating Russian judges, who will be specialized in examining such cases, by experts in international law.Read Full Post | Make a Comment ( 5 so far )
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