Obama to host Noda at White House on April 30

Posted on April 19, 2012. Filed under: Child Abduction, Child Custody and Visitation | Tags: , , , , |

Politics Apr. 18, 2012 – WASHINGTON —

U.S. President Barack Obama will host Japanese Prime Minister Yoshihiko Noda in Washington on April 30, for their first meeting since North Korea’s rocket launch, the White House said Tuesday.

Obama wants to address a “wide range of bilateral, regional and global issues, including the U.S.-Japan security alliance, economic and trade issues, and deepening bilateral cooperation,” White House spokesman Jay Carney said.

“The two leaders will also discuss regional and global security concerns,” Carney said in a statement—with North Korea’s rocket launch likely high on that agenda.

The April 30 meeting will be the second one-on-one talks between the two leaders, and the first at the White House. Noda took office in August 2011.

The last meeting took place in September last year on the sidelines of the U.N. General Assembly meeting in New York, in which both were taking part.

North Korea claimed its rocket launch last week was to put a satellite into orbit as part of celebrations to mark the centennial of the birth of the country’s founder Kim Il-Sung, as his young grandson Kim Jong-Un takes the reins of power.

The United States and its allies, however, said it was a disguised long-range ballistic missile test banned under UN resolutions.

The test ended in failure, with the rocket disintegrating in mid-air soon after blast-off and plunging into the sea in a major embarrassment for the reclusive state.

And the U.N. Security Council responded by tightening sanctions on Pyongyang, warning of new action if the isolated state stages a nuclear test.

The United States and Japan are both party to long-stalled six-way negotiations on ending Pyongyang’s nuclear drive, along with China, Russia, and the two Koreas.

Carney said after the launch that Washington “remains vigilant in the face of North Korean provocations, and is fully committed to the security of our allies in the region.”

The United States also confirmed it would not go forward with an already suspended deal to send food aid to North Korea.

Japan and the United States have differed on Iran, upon which Washington has imposed crippling economic sanctions over its suspect nuclear program. But last month, the Pacific allies came to a compromise.

Noda has said Tokyo would strive to reduce its oil imports from the Islamic republic, while the United States last month said it was exempting Japan and some European Union members from tough new sanctions aimed at Tehran.

The United States has also pressed Japan on child abductions, urging it to sign the 1980 Hague treaty that requires countries to return children to the countries where they usually live.

Japanese courts virtually never award custody to foreign parents, especially men, and authorities have never returned overseas a child snatched to Japan.

U.S. parents have pursued more than 120 cases to seek access to their half-Japanese children.

Under growing foreign pressure, leaders in Tokyo have voiced support for signing the Hague convention, but it would only apply to future cases.

© 2012 AFP

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Divorce and Child Custody Issues in the Japanese Legal System

Posted on February 7, 2012. Filed under: Child Abduction, Child Custody and Visitation, Divorce, Domestic Violence (DV), Hague Convention | Tags: , , , , , |

American View- US Embassy

Colin P.A. Jones
Professor, Doshisha University Law School

Introduction

Professor Colin P.A. Jones
(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.

Limited enforceability

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.

Going forward

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.

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Mother agrees to have Fox Point girl returned from Japan

Posted on November 22, 2011. Filed under: Child Abduction, Child Custody and Visitation | Tags: , , , , |

MILWAUKEE – Nine-year-old Karina Garcia is at the center of an emotional, international battle between her parents. Her Fox Point father is fighting to bring his daughter back from Japan. The girl’s mother refused to cooperate until now.Sheriff’s deputies hurried a handcuffed Emiko Inoue into a courtroom. This 43-year-old mother has been jailed in Milwaukee County for months. She faces charges for taking her daughter to Japan to keep the child from her ex-husband. The father, Dr. Moises Garcia, had lunch with his daughter at her Fox Point elementary school nearly four years ago. That was the last time he saw her in this country, even though a Wisconsin court gave him custody. “It’s been a long fight,” Garcia told reporters. “It’s been hard.” Karina is now nine years old and is said to be living with her maternal grandparents in Japan. After hours of behind the scenes negotiations Monday, Inoue agreed to have her daughter returned to the US within 30 days in exchange for getting out of jail. Inoue faced more than a decade in prison if convicted and could have missed the rest of her daughter’s childhood. “Now, we’re hopefully with a resolution that will allow the child to be with her father and spend some time with her mother,” said Bridget Boyle, the mother’s attorney. Observers from the Japanese government attended Tuesday’s court proceedings. The case also attracted two California dads who are also fighting to bring their own children back from Japan. Patrick Braden, whose daughter is in Japan, said the Japanese government does not seem willing to honor US custody rulings. Garcia is thankful for Monday’s agreement, but will worry until his daughter is back in his arms. “She played all kinds of tricks in Japan and that’s why I tell you, until she’s back on American soil, I won’t believe that this is true,” Garcia said. Details of the child’s return to Wisconsin have not yet been determined. To view more stories about Dr. Garcia and his daughter, click on the links below.

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Japanese held in U.S. over child custody

Posted on October 30, 2011. Filed under: Child Abduction, Child Custody and Visitation, Divorce, Hague Convention | Tags: , , |

 

Saturday, Oct. 29, 2011
Staff writer

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.

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U.S. says it won’t tolerate loopholes in child abduction issue with Japan

Posted on July 29, 2011. Filed under: Child Abduction, Hague Convention, United Nation Convention on the Rights of a Child | Tags: , , , , , , |

Jul. 29, 2011 – 03:20PM 

WASHINGTON —

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.

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Legislation Urging Immediate Return of U.S. Kids Abducted to Japan Clears 1st Hurdle

Posted on July 25, 2011. Filed under: Child Abduction, Child Custody and Visitation, Human Rights | Tags: , , , , , |

 

Washington, Jul 21 – The House Foreign Affairs Committee adopted an amendment by U.S. Rep. Chris Smith (NJ-04) Thursday calling for a memorandum of understanding (MOU) with Japan for the immediate return of the approximately 156 U.S. children currently being held in Japan against the wishes of their American parent, and in many cases in violation of valid U.S. court orders.“The amendment passed today makes it clear that the United States must, by way of an MOU with Japan, or any other appropriate means, seek the immediate return of U.S. children abducted to Japan,” said Smith (NJ-04), a senior member of the House Foreign Affairs Committee and chairman of its human rights subcommittee.  “Abducted children are at risk of serious emotional and psychological problems.  The U.S. government has a duty to protect these children and fight for their parents who have a right and want to meet their responsibilities of raising their own children.” Click here to view the amendment.

Smith said Japan has become known as a haven for international child abduction. “Tragically, Japan has become a black hole for children whose Japanese parent—or in some cases non-Japanese parent—decided not to abide by the laws of the United States and rather to run to a jurisdiction where they would not have to share custody, or even permit visitation of the child by the child’s other parent. Japan has historically been complicit in these abductions, offering protection without investigation.”

Smith said Japan’s recent announcement that it will finally sign the Hague Convention on the Civil Aspects of International Child Abduction is welcomed but pointed out that the Convention, by its own terms, will only apply to future cases.

If and when Japan ratifies the Hague, and I hope they do, such action, unfortunately will not be sufficient to address the existing abduction cases,” said Smith, who led a human rights mission to Japan this past February and met with government leaders as well as American parents blocked from seeing their children in Japan. “A Memorandum of Understanding between the United States and Japan is urgently needed to ensure that families are reunited and left behind parents are not left behind again.”

During the debate on his a amendment, Smith spoke of the current abduction cases involving Japan including the case of New Jersey resident and former Marine Sgt. Michael Elias, whose children Jade and Michael were abducted to Japan by his estranged wife in 2008.  He has not held them since or been allowed any communication with them in over a year.

Additionally, my amendment calls on the Secretary of State to take any and all other appropriate measures to enable left behind parents direct access and communications with their children wrongfully removed to or retained in Japan.  These children must be allowed to have a relationship with their American parent—the arbitrary deprivation they currently suffer is child abuse,” Smith said.

The House Foreign Affairs Committee unanimously adopted the amendment demanding an MOU as part of legislation controlling foreign aid.  The bill is expected to move to the House Floor.

In September 2010 Smith cosponsored and managed the debate in the House chamber on a similar bipartisan measure, H. Res. 1326, calling on the Government of Japan to resolve the many cases involving over American children abducted to Japan. The bill passed 416-1.

Smith also has been working to push Congress and the Administration to better address international child abductions in Japan and elsewhere. After returning from Brazil in Dec. 24, 2009 with abducted child Sean Goldman and his left behind New Jersey dad who had been deprived of his son for five years, Smith introduced “The International Child Abduction Prevention and Return Act of 2011”, H.R. 1940, and is working for passage of the bill.

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Dispel concerns before signing Hague Convention

Posted on June 16, 2011. Filed under: Child Abduction, Child Custody and Visitation, Divorce, Domestic Violence (DV), Hague Convention, Japanese Family Law | Tags: , , , , , , , |

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.

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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.

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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)

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Hague treaty seeks to balance rights of kids, parents

Posted on June 7, 2011. Filed under: Hague Convention | Tags: , , , |

Staff writer Japan Times

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 Weekly FYI appears Tuesdays. Readers are encouraged to send ideas, questions and opinions to hodobu@japantimes.co.jp
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Child abduction convention

Posted on June 6, 2011. Filed under: Child Abduction, Hague Convention | Tags: , , , , , |

Monday, June 6, 2011 Japan Times

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.

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How Did Japan Become a Haven for Child Abductions?

Posted on March 7, 2011. Filed under: Child Abduction, Domestic Violence (DV), Hague Convention, Japanese Family Law | Tags: , , , , |

By Lucy Birmingham / Tokyo Monday, Mar. 07, 2011
Click here to find out more!

Like any loving father, Christopher Savoie just wanted to do the best thing for his two kids. In August 2009, his Japanese ex-wife broke U.S. law and abducted their children from his home in Tennessee, moving them to Japan. But when Savoie went to get them weeks later, he was arrested. It didn’t matter that he had legal custody in both countries; that she had violated a U.S. court order or that there was a U.S. warrant issued for her arrest. Nor did the fact that Savoie was a naturalized Japanese citizen and fluent in Japanese make a difference. After 18 days in jail, Savoie returned to the U.S. empty handed and broken hearted. A year and half has now passed, and he is still unable to see his son and daughter, now 10 and 8.

Despite all this, Savoie’s ex-wife is beyond the reach of international law. Japan has not signed the Hague Convention on the Prevention of Child Abduction, an international accord adopted by 84 nations and aimed at returning abducted children back to the country from which they were taken. Along with an increasing number of international marriages and divorces, child abductions to Japan — the only G7 nation that has not signed the treaty — have been on the rise. In 2009, the State Department ranked Japan at the top of its list in reported abductions from the U.S. among non-signatory nations. “It is our understanding that no U.S. citizen child abducted to Japan has been returned to the United States,” says Paul Fitzgerald, a U.S. Embassy official in Tokyo. The issue could tarnish U.S.-Japan relations; as Assistant Sec. of State Kurt Campbell told reporters during a trip to Tokyo in February, “The situation has to be resolved in order to ensure that the U.S.-Japan relations continue on such a positive course.” (See pictures of Japan and the world.)

Japan’s antiquated domestic family law complicates matters. In a Japanese divorce, child custody is awarded to only one parent — typically the mother. Visitation can be negotiated but there is no legal enforcement and agreements are often broken. In Japan, it’s not unusual for the non-custodial parent to lose contact with their child, and domestic abductions, when they do occur, are often ignored by the police as a family matter. It’s a devastating scenario for a growing number of fathers residing in Japan — both Japanese and foreign — who have few legal rights to see their children. “Clearly, the best legal scenario is for the children is to be here in the U.S. where each parent would be guaranteed visitation,” writes Savoie by email.

International pressure for Japan to make a change has been mounting. Over the past year, several ambassadors from embassies in Tokyo have met with high-level government officials to urge Japan to sign the convention. A Japanese government panel was set up in January to study the pros and cons, but opposition remains firm at most levels. Japanese lawmakers are worried the Hague Convention does not properly take into account past cases of domestic abuse in demanding a child’s repatriation, or a child’s own right to choose where they live. “This is why Switzerland tried to amend the treaty, even though it is a signatory,” explains Kensuke Ohnuki, a Tokyo attorney who has represented several women who have abducted children from foreign countries to Japan. “They failed. So instead, they made their own new law which enables the Swiss court to refuse the return of a child when it’s against the child’s will.”

On Feb. 22, the Japan Bar Association issued similar Hague recommendations to the government, including a guarantee in domestic law that children not be returned to their country of residence if they had been subjected to abuse or violence. Left-behind parents, including Christopher Savoie, have said the recommendations are draconian and anti-joint custody, in part because abuse is both difficult to prove and is commonly cited as one of the main reasons for abduction.

One of Ohnuki’s clients, who uses the alias Keiko, says she left the U.S. with her child because she discovered her husband was abusing their son. “There were no obvious physical marks so it would have been impossible to prove in court,” Keiko explains tearfully. After consulting a therapist and an attorney in the U.S., she feared getting sole custody as a Japanese citizen would be nearly impossible. “When we were in Japan, my son told me he feels safe, far away from his father… I didn’t really want to leave the U.S. I had a good job and many friends. But I wanted to do what was best for my son.” Keiko is now one of about 50 members of the Safety Network for Guardians and Children, a support group for women who have abducted their children to Japan from various countries. (Comment on this story.)

Finding a internationally recognized legal resolution to cases like Keiko’s will not be easy. But in the meantime, Japanese mothers living abroad who have no intention of removing their children from their families are also beginning to be affected by the problem. Jeremy Morley, a U.S. attorney specializing in Japanese child abductions says that foreign courts are “increasingly ordering Japanese mothers living overseas not to take their children to Japan even for a family visit because of Japan’s status as a renowned haven for international child abduction.”

A winning diplomatic strategy will need teeth to make a difference for everyone involved. “The mantra now is ‘Japan sign the Hague’, but that’s not enough,” U.S. Rep. Chris Smith said during a recent trip to Tokyo. The Republican New Jersey congressman, who is also the chairman of a subcommittee overseeing human rights issues, is pushing for a bill that would establish an Office of International Child Abductions within the U.S. State Department to handle cases like these and discuss sanctions against uncooperative nations. “I don’t know what the answer is,” says Keiko. “But we need to find a solution that’s in the best interest of the child.”

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171 Abducted American Children Held in Japan Smith Calls on Obama Administration to Dramatically Alter Strategy Regarding ‘Left Behind Parents’

Posted on March 2, 2011. Filed under: Child Abduction, Child Custody and Visitation, Hague Convention | Tags: , , , , , |

Congressman Smith asks Secretary Clinton a question about child abductions to Japan Related Documents

Rep Smith and Secretary Clinton

Washington, Mar 1 – A leading human rights lawmaker today said that left behind parents whose American children have been taken and retained in Japan “are at risk of being left behind again” if the Obama Administration does not dramatically change its strategy and directly work toward an agreement with Japan to resolve current cases of international abduction.

At a Capitol Hill hearing, Rep. Chris Smith (NJ-04), the chairman of the House Foreign Affairs subcommittee with immediate jurisdiction on global human rights, questioned Secretary Hillary Clinton on the Obama strategy and later said the Administration is making a strategic mistake in focusing first on pushing Japan to sign an international treaty which is not retroactive and will not itself help children who have already been abducted and remain separated from their American parent.

All of us of course want Japan to sign the Hague Convention on the Civil Aspects of International Child Abduction,” Smith said. “But, as you know, that treaty will not solve the current cases. What is the Administration’s plan to resolve the current cases?” Smith asked.Click here to watch video.

Smith, who supports the signing of the treaty, pointed out that the treaty and a separate memorandum of understanding resolving current cases must be equally supported and achieved. He argues that the U.S. government has a duty not only to future Americans who would benefit from the Hague Convention, but “we have a duty to the current American children and American parents who suffer daily, deprived of each others’ love and support,” he said.

Smith, having just returned from a human rights mission to Japan, said that country has become a destination country—a haven—for international child abduction.

There are at least 171 children who are being arbitrarily denied a relationship with their American parent and 131 brokenhearted parents worried sick about their children,” Smith said.

In response, the Secretary said she believes that if Japan signs the treaty the U.S. will have a stronger argument on the pending cases. Something she argued would “open up more possibilities.”

The Secretary’s response was disappointing and naïve,” said Smith who last year authored legislation to strengthen the U.S. response to the taking of American children. Among other provisions, Smith’s bill, which he will reintroduce, prods the State Department to be more forceful with treaty countries as well as those, like Japan, that have not yet signed on.

The U.S. must make it clear, government to government, that Japan has an obligation to work now to solve these current abduction cases, many of which occurred in direct contravention of American court orders barring the child’s removal from the U.S.,” Smith said. “These American parents and their children have suffered too long, and to leave them behind again is unacceptable.”

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U.S. Secretary of State Hilary Clinton testifies on the abduction of children to and within Japan

Posted on March 2, 2011. Filed under: Child Abduction, Hague Convention, Video | Tags: , , , , , |

Congressman Chris Smith asks questions to Secretary Clinton concerning international child abduction to Japan.  Secretary Clinton talks about the cases (denial of access with in Japan and abductions to Japan). Click on the link to watch the video.

Clinton video

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Solving parental child abduction problem no piece of cake Carving out Hague caveats could halt the return of any kids snatched to Japan

Posted on March 2, 2011. Filed under: Child Abduction, Child Custody and Visitation, Hague Convention | Tags: , , , |

 

Special to The Japan Times

The Way of Cake is mysterious and paradoxical. A master of the Way can make his neighbors feel they have filled themselves with tasty cake without ever cutting off a piece. The Way allows its disciple to step outside the boundaries of rational thought by partaking of cake while continuing to possess cake.

The Zen of having your cake and eating it too can sometimes seem to be a feature of the Japanese legal system. The rule of law applies, though it is sometimes hard to know what the law actually is. There is a Constitution that protects people from the government — except when the government finds this inconvenient — as well as a criminal justice system founded on the presumption of innocence, but which manages to find pretty much everyone guilty anyways (because prosecutors only ever prosecute people who are actually guilty, you see).

Yet it is in Japan’s most recent responses to growing pressure to join the Hague Convention on the Civil Aspects of International Child Abduction that the Way of Cake may be demonstrated in its purest form.

It has always seemed highly likely (to me, at least) that Japan will eventually submit to foreign pressure and join a treaty regime that effectively represents the international community’s consensus on how cross-border child custody disputes should be decided: in the child’s country of habitual residence. At the same time, it has also always seemed unlikely that signing the treaty will result in children who have been abducted to Japan by Japanese parents actually being returned to their foreign homes. The Japanese civil justice system lacks the tools to enforce a return and, probably more to the point, it is unlikely to ever be in the interests of any Japanese judge, cop or other bureaucrat to be responsible for a crying child being taken away from a weeping Japanese mother in any particular case. The rule of law is one thing, but Japanese officialdom is not short on cake aficionados.

So it has not been too surprising to read recent news reports that the government is considering signing the convention while at the same time amending its domestic laws to ensure that children are not returned if there are concerns about domestic violence. The Japan Federation of Bar Associations (JFBA) also recently issued a formal opinion that included similar recommendations, as well as suggesting that children should not be returned if it would result in the abducting parent being subject to prosecution in their home country (the U.S., Canada and other countries have criminal penalties for parental child abduction). This would mean that in addition to the civil trial procedures (which should include appeals, according to the JFBA) used to return children in Hague Convention cases, it might be necessary to negotiate nonprosecution agreements with home country authorities in some instances.

Whatever legislation is used to implement the Hague Convention, it is hard to imagine that it will not also include a catch-all “other” caveat that will provide additional excuses for nonreturn in just about any situation. Even without the provision, the domestic violence exception alone will probably be enough to ensure that Japan fulfills its duties under the convention in terms of appearances and process, without actually accomplishing any of the goals the treaty is supposed to achieve in terms of substance.

To be fair, domestic violence is an issue that some commentators assert is not dealt with adequately under the Hague Convention in its current form, and I am certainly not suggesting that it is not a problem in cross-border — or any — marriages. Yet as a matter of law and judicial process, exceptions drafted around claims of domestic violence are likely to suffer from the same evidentiary and other practical constraints the convention is intended to address in the case of child custody decisions. In both situations, factual determinations are usually best made by courts in places where school officials, social workers and other potential witnesses are likely to reside, and where other relevant evidence is likely to be located. This is the child’s country of habitual residence under the Hague Convention, and logic suggests that claims of domestic violence or child abuse should also be adjudicated by courts where the conduct allegedly took place. This logic is even more compelling if the claims of violence are linked to a child custody dispute, and if the conduct in question also constitutes a criminal offense, as is often the case in many countries.

Whatever exceptions are provided for in Japanese law, as an evidentiary matter it is difficult to see how Japanese courts would decide whether to apply them except based on allegations by the Japanese victims, with the foreign “aggressor” being put in the position of having to prove a negative, over linguistic and geographical barriers. Unless Japanese courts are willing to start with a presumption that parents claiming abuse are lying (a cruel result for those actually fearing for their lives or those of their children), the safest thing for judges to do in any particular case will be to simply accept the claims at face value and grant the exception.

Japanese judges will be aided in this task by Japanese law, which defines spousal violence as including not just “bodily harm” but “words and deeds of one spouse that cause equivalent psychological or physical harm to the other” (this is from the Japanese government’s translation of Article 1 of the Act on the Prevention of Spousal Violence and the Protection of Victims). This already broad definition is further expanded by government publications that go so far as to include “yelling” and “ignoring” as types of domestic violence. Child abuse also is defined as including “words or conduct which cause a child significant psychological harm” (my translation of the relevant portion of Article 2 of the Child Abuse Prevention Act, for which a government translation is not yet available), though even this expansive definition is apparently not broad enough to cover abduction from abroad or the parental alienation that often follows.

To the extent that marital breakup is pretty much always emotionally traumatic for everyone directly involved, the unsubstantiated Japanese media trope about all cases of child abduction to Japan involving Japanese women fleeing from violence or abuse abroad can be said to be true: It will always be possible to find some sort of “psychological harm” that can be attributed to broadly defined violence or abuse if necessary.

However the law is written, it will likely serve as a message to Japanese living abroad that so long as they have the right story when they get off the plane with the children, they do not have to worry about a Hague Convention return order. Whether their story is legitimate or not (and I am certainly not suggesting that all claims of violence are or will be fabricated) will be beside the point — lawyers and well-intentioned bureaucrats will provide advice as to how stories should be scripted to ensure that an exception applies.

What will be interesting to see is how the law and Japanese judges deal with the situation where child custody issues and allegations of domestic violence have already been dealt with in a foreign court. If the law includes provisions calling on Japanese courts to give weight to foreign proceedings (as one hopes it would), it could have the effect of actually encouraging abduction before a foreign court has a chance to deal with any of the issues. Forum-shopping (trying to have your case resolved in the most advantageous court possible) through pre-emptive abductions is of course already a common problem in international abductions, but it is one of the things that joining the Hague Convention is supposed to discourage and remedy rather than induce.

Putting all this aside, an obvious response to concerns over domestic violence and the Hague Convention is that the treaty has been around for three decades and has been signed by dozens of countries despite domestic violence being a universal problem. There is, simply put, no “uniquely Japanese” set of issues here that involves prolonged navel-gazing over issues that are incomprehensible to foreigners.

Yet another point of rebuttal is this: If fleeing to Japan is going to be allowed if it is to escape domestic violence, then it should be OK to escape from Japan with your children for the same reason. But this type of mundane logical consistency is probably incompatible with the subtle rhetorical aesthetics of the Way of Cake.

While the Hague Convention garners most of the attention in the foreign press, there are signs that Japan could be taking steps to amend its creaky family laws to provide for joint custody and postseparation parent-child contact, neither of which are provided for under current law (preservation of access rights across borders is another goal of the Hague Convention, though the same is true of the Convention on the Rights of the Child, which Japan has signed but essentially ignores in this respect). The last draft of one version of proposed legislation I have seen includes a prohibition on the unilateral removal of a child from their home; if this provision survives the legislative process, it might be hard to square with a law that could offer a blanket invitation to Japanese mothers to bring their children home from abroad.

Yet how domestic law change fits with the Hague Convention may not be a problem, since nothing may actually happen in the case of the former. In a recent interview (Japan Times, Feb. 3), Justice Minister Satsuki Eda questioned the need to package the adoption of a joint custody regime with signing the Hague Convention, though in the same article it was also reported that “he thinks married couples should be allowed to have separate surnames, but changing the law now would be difficult.” That certain sectors of the Japanese polity are still grappling with the staggering complexities of women keeping their maiden names after marriage (and not even touching the seemingly unconstitutional prohibition on remarriage within six months of divorce that only applies to women) might be a good benchmark for how low expectations should be set regarding changes in domestic family law.

Then again, what a particular minister of justice says about anything may not be an indicator of very much in the first place. Since January 2001, 13 different people have filled the position, a one-year term ending in August or September being the most common pattern of tenure. Past ministers — past prime ministers, even — have voiced views on the Hague Convention and other aspects of family law, yet nothing much seems to happen. In 2010, then Prime Minister Yukio Hatoyama expressed a willingness to sign the Hague Convention early in 2010, and during her term at the top of the Justice Ministry pyramid, Keiko Chiba’s accomplishment was supposedly to have been resolving the marital name issue, yet the status quo continues on both fronts.

Democracy is a slow business, full of messy compromise, of course, yet when it comes to issues that matter to families and children, one is often left wondering who — if anyone — is actually in charge. Cake, anyone?

Colin P. A. Jones is a professor at Doshisha University Law School. Send comments and story ideas to community@japantimes.co.jp
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Lawmaker: DOD must do more to inform troops about child abduction issue

Posted on February 27, 2011. Filed under: Child Abduction, Child Custody and Visitation, Hague Convention | Tags: , , , , , , , , , , |

TOKYO — Resolving parental child abduction cases in Japan not only requires more attention from Japan and the U.S., but also is an issue the Pentagon must address.

Rep. Chris Smith, in Tokyo this week to lobby support for a treaty to end parental abductions, called for the U.S. military to step up efforts to help troops, since current and former service members often face impossible challenges in trying to get access to their children in Japan.

From 2007 to 2009, the number of troops who sought help from the U.S. State Department to get visitation rights with their half-American children outside the U.S. rose from eight to 34 in 14 countries, according to a 2010 DOD report on international child abduction.

Many cases go unreported because left-behind parents often realize early on that there is little that can be done to help them, said attorney Patricia Apy, who traveled to Tokyo with Smith to raise awareness about Japanese abduction cases.

In 2010, Smith passed legislation that created a partnership between the Pentagon and State Department to help better inform servicemembers on child abduction issues.

The diplomatic-military effort is still in its early stages and so far has only included training for military staff judge advocates, Pentagon spokeswoman Maj. Monica Matoush said in an e-mail Thursday to Stars and Stripes.

But active-duty and former service members whose children have been abducted to Japan contend the military could quickly and cheaply begin addressing the problem.

“With all the briefings you get in the military, they could include some information about the abduction problems,” said Michael Elias, who served in the Marine Corps and claims his estranged Japanese wife abducted his two young children to Japan from New Jersey in 2008.

“You go overseas they give you information about everything, even how not to catch an STD overseas,” he said. “But this topic goes unmentioned?”

Still, it was Marine Commandant Gen. James Conway who provided the first ray of hope for Elias in 2009.

“I wrote like 200 letters to (Secretary of State) Hillary Clinton and had called everyone from the (local) police to the FBI,” said Elias, who then e-mailed Conway.

Conway, who has since retired, quickly responded and hooked Elias up with Apy, his current attorney, who has worked as a legal adviser to the Pentagon and the Clinton administration.

“That was the best thing that could have happened,” said Elias. “I’ll never forget what he (Conway) wrote: ‘Never let it be said that Marines don’t help Marines out.’”

Like many young service members who fall in love and marry while stationed overseas, Elias never thought of the consequences associated with international marriage.

But that’s all the more reason the military should at least brief troops about the risks, he said.

“I never imagined (my wife) could or would do this,” said the 26-year-old sheriff’s deputy from his Rutherford, N.J., home this week. His parents Nancy and Miguel Elias accompanied Smith to Japan, a trip Michael Elias said he skipped for fear of being served with a Japanese court order.

Nancy and Miguel Elias said a U.S. Embassy official in Tokyo made contact with  their daughter-in-law while they were in Japan, but that she refused to allow them to visit their grandchildren.

Stars and Stripes was unsuccessful in contacting Elias’ ex-wife.

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Congressman continues to push Japan to sign child abduction treaty

Posted on February 27, 2011. Filed under: Child Abduction, Child Custody and Visitation, Divorce, Hague Convention | Tags: , , , , , , , |

YOKOTA AIR BASE, Japan — A U.S. congressman left Tokyo on Wednesday after a whirlwind trip aimed at rallying Japanese support for an international child abduction treaty, an issue that has sparked a growing debate in Japan and abroad.

While lobbying members of the Diet and other government officials this week to ratify the 1981 Hague Convention on the Civil Aspects of International Child Abduction, Rep. Chris Smith said Tokyo and Washington must resolve the current cases of parental kidnapping in Japan involving U.S. citizens.

The treaty would essentially stop Japanese law from shielding people who have taken their children to Japan in violation of jurisdictional authority in another country. The 1981 treaty was written without retroactive authority and can only be applied when both countries — where the custody dispute arises — are signatories.

The New Jersey Republican said it would be a “gross miscarriage of justice” if the American parents of 103 U.S.-Japanese children who have been taken to Japan go without help should Japan sign the treaty — a decision the government ponders as the issue gains domestic and international media attention.

Smith said establishing government-to-government protocols for the U.S. and Japan to resolve current cases would help lay the foundation within Japan’s domestic legal framework to ease ratification of the treaty.

Recent moves by Japan — such as establishing working groups within the government and legislature to study whether Japan should accede to the treaty — indicate the country is seriously considering the matter for the first time.

Smith’s efforts come as diplomatic pressure from the international community on the matter has increased in the past two years.

“This problem isn’t going away,” said Smith, who is working closely with Americans whose children have been abducted to Japan and with attorney Patricia Apy, a New Jersey international family law attorney.

Apy, who traveled to Japan with Smith, said she has unsuccessfully pleaded with the government of Japan at least eight times to assist in the extradition of Japanese citizens who have fled to the country in violation of U.S. custody orders. She said those failures highlight the impunity with which parental child abductors facilitate their crimes in Japan.

Japan’s new consideration of the abduction issue should be viewed with “cautious optimism,” said Apy, who has worked as a legal consultant for the Defense Department and the Clinton administration.

It’s too early to tell whether Japan is fully on board with the concept, she said.

With Japan’s custom of sole-custody divorces that typically cut off all contact between children and their non-custodial parents, even the fundamental idea behind the 1981 Hague treaty — that both parents deserve access to their children after divorce — clashes with conventional wisdom in Japan, Japanese officials say.

Masae Ido, a Diet member affiliated with Japan’s ruling party, said her biggest concern with the Hague is the disadvantage it could impose on Japanese women who flee with their children to Japan to escape domestic abuse.

“In a litigious society like the United States, Japanese women often end up fighting a lone battle (in American courts) without getting any support,” Ido said, adding that the language barrier and a lack of financial means “contribute to their decision to leave the country without due process.”

While emphasizing the polite and productive nature of his meeting with Ido and other Japanese officials, Smith said Japan no longer can condone the clear cases of parental kidnapping within its borders.

Smith said his trip is tied to legislation he plans to introduce in the House in the coming weeks that would impose economic sanctions against Japan and other countries that fail to return kidnapped children. Smith tried to pass similar legislation in 2010 but it died in the House, and it’s unclear whether the bill has any new support this year.

“These current cases must be resolved. These parents can’t be left behind again,” Smith said.

reedc@pstripes.osd.mil

sumidac@pstripes.osd.mil

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March hearings with experts, bar group to mull Hague treaty

Posted on February 27, 2011. Filed under: Child Abduction, Child Custody and Visitation, Hague Convention | Tags: , , , |

Kyodo News

The government said Friday it will conduct hearings in March with experts regarding whether Japan should join an international treaty that deals with cross-border child-custody disputes.

“Given that there are people who are for or against the signing of the Hague treaty, it is important for us to listen sincerely to the opinions from both camps,” Deputy Chief Cabinet Secretary Tetsuro Fukuyama told reporters.

The Japan Federation of Bar Associations will be among those attending the hearings, Fukuyama said after the latest meeting of a government task force studying the matter.

Japan has been under international pressure to join the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which is designed to help resolve cases in which foreign parents are prevented from seeing their children in Japan after their marriages with Japanese nationals fail.

In many cases, the estranged Japanese parent spirits children out of their nations of domicile, even in defiance of overseas court custody rulings.

Critics in Japan have raised concerns over joining the pact, saying it could endanger Japanese parents and their children who, they claim, have fled from abuse by non-Japanese spouses.

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Lawyers press for child’s best interest under int’l custody pact

Posted on February 25, 2011. Filed under: Child Abduction, Child Custody and Visitation, Divorce, Domestic Violence (DV), Hague Convention | Tags: , , , , |

Wednesday 23rd February, 2011 Japan Today

Japanese lawyers said Tuesday they have urged the government to try to secure children’s best interests if it decides to sign an international convention designed to help resolve cases in which foreign parents are prevented from seeing children ‘‘abducted’’ to Japan after their marriages with Japanese nationals fail.

The Japan Federation of Bar Associations said in a paper submitted to the foreign and justice ministries and the Cabinet Secretariat that Tokyo should guarantee in its domestic law that children should not be returned to their habitual country of residence if they are found to have been abused or subject to violence.

Satoshi Mukai, a JFBA vice president, told a press conference that even though member lawyers are divided over whether Japan should join the 1980 Hague Convention on the Civil Aspects of International Child Abduction, they compiled the paper to influence ongoing discussions at the government task force on the convention.

The treaty, which currently has 84 parties, stipulates rules and procedures for the prompt return of children to their habitual country of residence when wrongfully removed or retained in the case of an international divorce.

The government launched the task force comprising senior vice ministers in January to examine whether Tokyo should accede to the treaty. Japan is the only country among the Group of Seven major economies that has not signed the pact and it has been under international pressure to join the treaty.

The report said Japan should stipulate in domestic laws guaranteeing the implementation of the Hague Convention that children’s opinions will be appropriately heard and respected when authorities make a judgment on their return to their habitual country of residence.

The lawyers also said the legislation should make it clear that the Hague Convention is not retroactive, or only applies to wrongful child removals or retentions that occur after its entry into force in Japan and that it exempts parental child abduction cases that occur domestically.

They called on the government to raise public awareness of the Hague Convention and set a three-year preparation period before the treaty takes effect in Japan.

Whether to join The Hague Convention has triggered a heated debate in Japan, where it is customary for mothers to take sole care of children after divorces. It is not unusual for children to stop seeing their fathers after their parents break up.

Some critics in Japan argue that even though the pact says children will not be returned to their habitual country of residence if there is ‘‘a grave risk of physical or psychological harm,’’ past judgments have been made based on ‘‘limited interpretations’’ of the clause.

The JFBA urged the nation’s diplomatic missions abroad to provide necessary assistance to Japanese nationals who are involved in child custody disputes.

Naoki Idei, a member of the JFBA’s working group on The Hague Convention, said many member lawyers are concerned the treaty could endanger Japanese parents and their children who have fled abusive relationships.

As a legal remedy, the lawyers’ group called on the Japanese government to ratify optional protocols of international human rights treaties that enable individuals to file complaints for violations of their rights.

Idei said such a mechanism would help redress the situation of parents and children when a return to a child’s habitual country of residence is ordered under The Hague Convention despite claims of abuse.

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Justice for Smuggled Turtles, But Not For Children Kidnapped from the United States (via Rocjapan Blog)

Posted on February 21, 2011. Filed under: Child Abduction | Tags: , , , |

Good story. It really shows that turtles are more important than children. It seems federal authorities have their priorities out of whack.

LOS ANGELES — While the alphabet soup of U.S. federal authorities—DHS, TSA, FBI CBP and DSS, among others, has collectively been impotent and absent in preventing and rectifying the kidnapping of American citizen children from the United States to Japan, it has been Johnny-on-the-Spot in nabbing three particularly vile miscreants—for smuggling more than 50 live turtles and tortoises into the United States. On January 7, 2011, agents with the U.S. … Read More

via Rocjapan Blog

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日本女性は「誘拐犯」 米大手TVが“反日キャンペーン”

Posted on February 18, 2011. Filed under: Child Abduction, Child Custody and Visitation, Divorce, Hague Convention | Tags: , , , , |

2011.2.17 19:04

【ワシントン=佐々木類】米大手テレビ「ABCニュース」が16日、米国人男性と日本人女性による国際結婚の破綻に伴う子供の親権問題を特集し、日本政府関係者に波紋を広げている。

民事上の問題にも関わらず子供を日本に連れ帰った日本人女性を「誘拐犯」呼ばわりし、犯罪者に仕立て上げる演出だった。1月の日米外相会談でも取り上げられるなど、今後、日米間の外交問題に発展しそうな雲行きだ。

番組は15日の午後6時半に放映を開始。16日も複数回にわたって数種類の映像を流し、1回最大約8分間放映された。

スタジオに米国人男性15人が登場し、女性司会者の質問に「海外派兵されて帰宅したら妻とともに子供がいなくなっていた」と訴え、涙ながらに子供との面会を訴える参加者もいた。

番組は、米国人男性から提供を受けた子供の写真を手がかりに日本で取材した様子も放映した。

ある日本人女性が子供を自転車の荷台に乗せて移動するのを車で尾行。ABCの女性記者が、「自分を誘拐犯だと思わないか」と英語で詰問、この日本人女性がたどたどしい英語で「米国では生活できないので、子供を誘拐するか自殺するしかなかった」と答えさせている。

今年1月、ワシントンで行われた日米外相会談では、クリントン国務長官が前原誠司外相に、子供の連れ去りに関するハーグ条約の早期締結を要請。前原氏は、「真剣に検討を進めている」と応じている。日本人女性が子供を連れ帰るのは、米国人男性の家庭内暴力(DV)から逃れるケースもあるとされるが、実態は不明だ。

問題の背景には、子供もの親権に関する日米両国の国内法の違いがある。

離婚した場合、米国の州法では、合意があれば双方に親権が認められるケースが多いとされる一方、日本では、民法の規定で離婚後は片方の親にのみ親権が与えられる。

ABCニュースは、米連邦捜査局(FBI)が誘拐事件として関心を持っていることにも言及。全米規模のキャンペーンは、リコール問題で集中砲火を浴びたト ヨタ自動車に続き、新たな“日本バッシング”の火種となりかねない。在米日本政府関係者は「対日感情の悪化は避けられない」と気をもんでいる。

■ハーグ条約 オランダのハーグで締結された国際条約の総称。国家間の不法な子供の連れ去りを防止することを目的に1983年に発効した。親権を持つ親か ら子供を誘拐した場合、その子供がいた場所へ帰らせることを加盟国に義務付けさせる。日本は親権に関する民法との整合性から未加盟だが、2009年、外務 省内に「子の親権問題担当室」を設置し、加盟の可否を検討中。

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「国際結婚」ハーグ条約問題 日本人女性による子供誘拐事件追う (ABC story in Japanese)

Posted on February 18, 2011. Filed under: Child Abduction, Child Custody and Visitation, Hague Convention, Video | Tags: , , |

日本人女性が誘拐するケースが多いのか被害者は白人男性ばかりな件。

ABC story in Japanese on NHK

NHK video

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ABC World News Tonight – Japanese Mothers Reveal Why They Fled With Their Children

Posted on February 17, 2011. Filed under: Child Abduction, Video | Tags: , , , , |

More video from ABC on child abduction to Japan.

ABC video

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Americans Taken to Japan

Posted on February 16, 2011. Filed under: Child Abduction, Video | Tags: , , , |

ABC Nightline special about American children abducted to Japan.

ABC Nightline video

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Abducted in Japan: One Father’s Story

Posted on February 16, 2011. Filed under: Child Abduction, Video | Tags: |

Navy Cdr. Paul Toland first spotted his future wife at a running club while he was stationed in Japan. Too shy to talk to her at first, he said he eventually worked up enough nerve to ask her out using a Japanese-English translator.

It was a gesture, he says, that would lead to years of happy marriage and the birth of their daughter, Erika.

By the time Erika was born in 2002, Toland and his wife Etsuko had been married for seven years. She became a U.S. citizen shortly after in preparation for the family’s eventual move back to the United States.

But when Erika was less than a year old, Etsuko, who Toland said had became increasingly unhappy, took Erika from their Navy housing and cut off all contact.

“I was at work one day and I got a phone call from my neighbors saying ‘Are you moving back to the States? … And I said what are you talking about,’” Toland said. “And they said ‘Well, there’s a moving van outside your house.’ When I got home my wife and my daughter and all our stuff was gone.”

Etsuko committed suicide four years later and her mother, Akiko Futagi immediately took guardianship of Erika. Toland, Erika’s sole surviving parent, has never been allowed to spend time with his daughter.

ABC News found Futagi and Erika in northern Tokyo. Futagi accused Toland of being a dead-beat feather who has never paid her for raising his daughter.

“He doesn’t pay anything to bring her up,” Futagi said. When asked if she would let Toland see Erika, her response was quick. “No,” she said.

Toland said he has tried to put money into a bank account for his daughter, but Futagi rejected his lawyer’s offer.

“The State Department has tried to visit with my daughter a number of times and have been rejected,” Toland said. “They even asked the Japanese Ministry of Foreign Affairs to try to visit with my daughter and they were rejected. And once again they came back and said, ‘Sorry, we tried there’s nothing we can do.’”

Paul Toland video

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A Father’s Plea: Desperate Effort to Return American Children Abducted to Japan

Posted on February 16, 2011. Filed under: Child Abduction, Child Custody and Visitation, Divorce, Video | Tags: , , , , |

Thousands of miles away, hundreds of American children are being kept in Japan, victims of parental abduction, out of reach of their other parent and out of reach of the U.S. government.

Among the circles of left-behind parents in the U.S., many of them fathers, Japan is known as a safe haven for parental abductions. Once overseas, the parent who abducted the child is protected by the Japanese government’s unwillingness to sign the Hague Convention, a treaty that provides for the return of abducted children to their home country.

The U.S. Department of State has tried for years to negotiate Japan’s signature on the Hague Convention and to try and resolve some of the 321 cases that have been filed with the department during the last 17 years. But not one child has ever been returned to the U.S. from Japan through diplomatic measures, according to the State Department.

Below are the stories of three American fathers who are desperately seeking contact with their children.

Having a family wasn’t something Michael Elias planned on as a young Marine stationed in Okinawa, Japan. But after his Japanese girlfriend Mayumi called him with the news she was pregnant with their daughter, Elias said he eagerly made the transition into husband and father.

He brought Mayumi to the United States and married her. Their daughter, Jade, was born months later.

Just before Elias deployed to Iraq in 2007, they found out Mayumi was pregnant again. Their son Michael was born while he was overseas.

With his young family waiting for him at home, Elias counted the days until he returned to the United States. But his Humvee was hit by an IED and Elias, blown back into the cabin, suffered a traumatic brain injury.

When he returned home, he said, things had changed.

“It wasn’t the same as when I had left,” he said.

Mayumi soon began dating another Japanese national – a travel agent. Elias got a girlfriend.

But when the two went to court to begin deciding custody for Jade and baby Michael, a judge ordered neither party to leave New Jersey with the children – and demanded Mayumi turn over the children’s American and Japanese passports, which she did.

Months later, in December 2008, Mayumi disappeared with the children, taking them to Japan.

Elias, who later learned through flight records that his children had been given duplicate passports at a Japanese consulate, was devastated.

He has since been cut off from all contact with his children. He last saw an image of Jade, now 5, in a Skype conversation more than a year ago. He fears his son Michael, now 3 1/2, will no longer remember him.

ABC News was unable to locate Mayumi for comment.

Elias is hoping the U.S. Department of State will someday be able to bring his children back home.

“When I was asked to serve in a war I did it without question,” Elias said. “And now all I ask is for something [that] belongs to not only me, this country.”

Navy Cdr. Paul Toland first spotted his future wife at a running club while he was stationed in Japan. Too shy to talk to her at first, he said he eventually worked up enough nerve to ask her out using a Japanese-English translator.

It was a gesture, he says, that would lead to years of happy marriage and the birth of their daughter, Erika.

By the time Erika was born in 2002, Toland and his wife Etsuko had been married for seven years. She became a U.S. citizen shortly after in preparation for the family’s eventual move back to the United States.

But when Erika was less than a year old, Etsuko, who Toland said had became increasingly unhappy, took Erika from their Navy housing and cut off all contact.

“I was at work one day and I got a phone call from my neighbors saying ‘Are you moving back to the States? … And I said what are you talking about,'” Toland said. “And they said ‘Well, there’s a moving van outside your house.’ When I got home my wife and my daughter and all our stuff was gone.”

Etsuko committed suicide four years later and her mother, Akiko Futagi immediately took guardianship of Erika. Toland, Erika’s sole surviving parent, has never been allowed to spend time with his daughter.

ABC News found Futagi and Erika in northern Tokyo. Futagi accused Toland of being a dead-beat feather who has never paid her for raising his daughter.

“He doesn’t pay anything to bring her up,” Futagi said. When asked if she would let Toland see Erika, her response was quick. “No,” she said.

Toland said he has tried to put money into a bank account for his daughter, but Futagi rejected his lawyer’s offer.

“The State Department has tried to visit with my daughter a number of times and have been rejected,” Toland said. “They even asked the Japanese Ministry of Foreign Affairs to try to visit with my daughter and they were rejected. And once again they came back and said, ‘Sorry, we tried there’s nothing we can do.'”

Scott Sawyer never dreamed his once happy family would be destroyed, and that his only child would be thousands of miles out of reach.

But after he filed for divorce from his ex-wife in 2008, she took off for her native Japan, brining their then-2-year-old son, Wayne, with her. He hasn’t seen his son since.

“My concern is for my son,” Sawyer said. “What kind of life is he having in Japan right now? What has he been told about why he can’t see his father?”

It was something he feared would happen. Before his wife left California with their son, he tried to convince a judge she was a flight risk. Court documents show his ex was ordered to turn over her passport.

“She had said repeatedly, ‘I want to go to Japan. I want to take the baby to Japan,'” he said. “I knew if that happened they wouldn’t come back.”

Sawyer’s ex, who spoke to ABC News under the condition that we not use her name or show her face, said she knows she is considered a kidnapper. It was something, she said, she felt she had to do. She did not think she could survive on her own in the United States.

“At the time, my choices was just two – kidnapper or die,” she said. “I can’t live in Los Angeles.”

She told ABC News she fears Sawyer will kidnap their son and bring him back to the United States.

“If he promise me that he doesn’t, he will not kidnap my son from Japan, he can see my son any time,” she said. “I would really, no problem. I will support my ex in Japan.”

abduction video

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ABC World News Tonight American Children Kidnapped

Posted on February 15, 2011. Filed under: Child Abduction, Video | Tags: , , |

ABC World News Tonight w/Diane Sawyer will be airing a 2 part segment about illegally abducted children by Japanese nationals tomorrow night Feb. 15th & Wednesday Feb 16th at 6:30 PM local time. It will also be featured on Nightline Wednesday evening at 11:30. Check your local listings to confirm the time in your area. Between 10 and 20 left behind parents will be featured. Please spread the word. Click on the link to watch the teaser.

ABC World News

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Japan still split on treaty over child custody

Posted on February 12, 2011. Filed under: Child Abduction, Child Custody and Visitation, Divorce, Domestic Violence (DV), Hague Convention | Tags: , , , , |

BY MASAHIRO TSURUOKA STAFF WRITER Asahi Shimbun 2011/02/11

Even as Japan faces rising international pressure to ratify a treaty to resolve child custody battles between Japanese and foreign ex-spouses, public opinion in this country remains sharply divided over the issue.

The Hague Convention on the Civil Aspects of International Child Abduction stipulates that if one parent takes the couple’s offspring to his or her home country without the consent of the spouse, the child or children must be returned to the country of previous residence.

The convention applies to children aged 15 or younger.

Japan and Russia are the only nations among the world’s eight major economies that have not ratified the 1980 Hague Convention.

A typical case under the Hague Convention is that of a Japanese woman who returns to Japan with her child after her marriage fails.

Japan has chosen not to ratify the treaty in part to protect returning Japanese women who say they are fleeing domestic violence or other serious troubles.

But abroad, their actions are often seen as bordering on criminal behavior. In some countries, the women are accused by their ex-husbands of kidnapping or abducting their own children.

The U.S. Federal Bureau of Investigation and other law enforcement authorities are looking into several such abduction cases.

In Japan, opinions are split on the issue.

A Foreign Ministry survey of Japanese involved in such cases drew 22 responses in favor of ratification of the treaty and 17 against. The survey was released Feb. 2.

The ministry had received 64 responses as of November to its questionnaire posted on its website and other venues.

In support of ratification is the view that concluding the treaty, which serves as the international rule to settle cross-border child custody disputes, is necessary given the rising number of interracial marriages and divorces.

Others support ratification because Japan is being painted overseas as a country that defends the abduction of children.

In the other camp, dissenters say that Japan should not conclude the treaty because taking children away from a violent foreign spouse is a “last resort” for troubled Japanese women.

Moreover, fighting a custody battle in court in the child’s country of previous residence would burden the Japanese spouse with exorbitant legal fees or language barriers.

Often, such court rulings would not be in the Japanese parent’s favor, dissenters say.

Foreign Ministry statistics as of January on cases in which Japanese had brought their children back to Japan against the will of a divorced partner found 100 in the United States, 38 in Britain, 37 in Canada and 30 in France.

The tally is based on the number of cases for which foreign governments had contacted the Japanese government.

If Japan signs the Hague Convention, the government would be obliged to fulfill its legal responsibility by complying with requests made by foreign parents.

The government would be required to locate the “abducted” children and return them to their previous country of residence.

So far 84 countries have signed the Hague Convention.

International pressure on Japan to conclude the treaty is mounting.

France last month passed a resolution in the Senate to demand Japan’s prompt ratification of the Convention.

The U.S. House of Representatives took similar action in September.

U.S. Secretary of State Hillary Clinton stepped up pressure on Japan over the issue in December and again in January, when she met Foreign Minister Seiji Maehara.

Maehara reportedly told her in the January meeting, “Japan will seriously consider the matter.”

The government appears to be moving toward concluding the treaty.

At the instruction of Prime Minister Naoto Kan, the government formed a task force comprising senior vice ministers of relevant ministries last month to weigh the issue.

Kan will likely promise to ratify the treaty when he visits Washington in May or later.

The Kan administration hopes to pass the related legislation at the same time it seeks Diet approval for the ratification.

The government plans to incorporate a clause in proposed bills that would allow parents to refuse to return their children in cases involving domestic violence.

But it is still hard to say if things will turn out the way the Kan administration wants.

Many DPJ members and Justice Ministry officials have expressed strong reservations about the speed at which the government is moving to ratify the treaty.

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Joining Hague in children’s best interest, U.S. adviser says

Posted on February 9, 2011. Filed under: Child Abduction, Child Custody and Visitation, Domestic Violence (DV), Hague Convention | Tags: , , , , , |

Staff writer for the Japan Times

If Japan wants to promote the best interests of children, it should sign the Hague Convention, the special adviser to the U.S. State Department on issues pertaining to international parental child abductions urged Tuesday.

Susan Jacobs, in Tokyo on a four-day visit during which she met with officials at the Foreign and Justice ministries, said the 1980 Hague Convention on the Civil Aspects of International Child Abduction acts as a deterrent to parental child abductions.

Members of the Hague Convention “are very interested in having Japan join this convention because the convention sets out a legal framework for the return of children who have been abducted from one country to another country,” Jacobs said. “And I think that we have found that when this convention is in place, it lowers the number of abductions and encourages parents to reach custody agreements with each other in the best interests of the child.”

Japan has been under international pressure to sign the treaty, but there is strong domestic opposition, especially among mothers who took their kids to Japan, claiming they were fleeing domestic violence.

Jacobs pointed out that while the Hague treaty is not about domestic violence, women in many member states have resources to turn to, including the police, social services and shelters to seek protection from abuse.

“There is no need for anyone to continue to be subjected to domestic violence,” Jacobs said. “It is wrong, however, for someone who may or may not have been the victim of domestic violence to abduct their children from one country and take them to another when there is recourse in the country in which they were living.”

The government launched a study panel last month to discuss whether Japan should sign the Hague Convention. Jacobs expressed optimism with the recent progress made, including interest by the Japanese media and the public.

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Japan custody heartache for foreign fathers

Posted on February 7, 2011. Filed under: Child Abduction, Child Custody and Visitation, Divorce, Domestic Violence (DV), Hague Convention | Tags: , , , , , |

By Roland Buerk BBC News, Tokyo

Thousands of Japanese people marry foreigners every year. Many are happy – but if the marriage breaks down the foreign spouse may end up cut out of the children’s lives.

Alex Kahney
Alex Kahney often visits the places he used to take his children

Alex Kahney, who works for a medical publisher, still lives in what was once the family home, now nearly bare of furniture but full of memories.

There are photographs of his daughters on the walls of the small four-storey town house in one of the nicer Tokyo neighbourhoods.

Their favourite stuffed toys, a dog and a mouse, are on the back of the sofa – reminders of the little girls, aged nine and seven, who he has not seen for months.

His Japanese wife took them with her, along with much of the contents of the house, when their marriage broke down, and is refusing to let him see them.

Mr Kahney first tried the police.

But when he told them that his wife had abducted their children, they laughed at him.

What makes it more painful is that their new home is just down the road.

Japanese marrying a foreigner 1970-2005
  • The number of Japanese men marrying foreign women is higher than the number of Japanese women marrying foreign men. It is rare for a Japanese man to marry a Western woman, but Japanese women frequently marry Western men.
  • A Japanese man marrying a foreigner is most likely to marry a woman from China, the Philippines or Korea, in that order. A Japanese women marrying a foreigner is most likely to marry a man from Korea, the US or China.

For the whole story please click on the link below:

custody heartache

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“Close Up Gendai” international divorce trouble rapidly growing (video)

Posted on February 3, 2011. Filed under: Child Abduction, Hague Convention, Video | Tags: , , , , |

If you understand Japanese please watch the 25 minute video about international child abduction and signing the Hague

Japanese video

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MOJ Eda talks about signing the Hague

Posted on February 3, 2011. Filed under: Child Abduction, Divorce, Hague Convention, Japanese Family Law | Tags: , , , , , , , , |

Japan is looking at signing the Hague Convention on the Civil Aspects of International Child Abduction, which is aimed at promptly returning children illegally taken by a parent out of the country of their habitual residence.

The question has arisen over whether the Civil Code should also be changed to allow dual parental rights after divorce. Eda said the Justice Ministry “is now discussing the matter, but I personally feel that allowing dual parental rights doesn’t necessarily have to” be packaged with signing the convention.

Signatory countries, particularly the United States, France and Canada, are urging Japan to join the convention against international child abductions by parents.

Some people whose former spouses don’t let them see their children in Japan argue that signing the convention doesn’t guarantee their access to children unless dual parental rights are also allowed.

This problem doesn’t only concern foreigners. Japanese parents — fathers in most cases — also can’t see their kids if their ex-spouses say no.

In Japan, those with parental rights have discretion over how often their ex-spouses can see their offspring. Shared parental rights are currently not allowed by the Civil Code because of the cultural belief that a stable environment is considered the most important factor for children.

“I guess it comes from the idea that letting a single parent have parental rights is good because it is simple,” Eda said.

Parents who were victims of abusive relationships are urging the government to keep parental rights to one person and not sign the Hague Convention because, they say, the current legal system protects them from their former spouses.

The Justice Ministry manages the Civil Code, and thus would likely be the source of any bills revising it.

Turning to other developments in the ministry, Eda said officials are studying how other countries deal with making the investigation process by police and prosecutors more transparent.

To read the whole story (some of which deals with the death penalty) please click on the link below:

MOJ Eda sign Hague

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