Manual issued for Hague treaty child retrievals

Posted on August 13, 2013. Filed under: Hague Convention | Tags: , , |

BY MAGDALENA OSUMI– Japan Times

The Supreme Court has issued a case-by-case manual for court-appointed administrators on how to retrieve children in parental cross-border abduction cases under the Hague Convention, minimizing the use of force to avoid traumatizing the kids, the court’s spokesman said.

The manual, issued June 14, outlines measures the administrators who would be assigned the task of returning children to their place of habitual residence, even by force, should take as Japan considers joining the Hague Convention by the end of next March, the spokesman said Friday.

It says the administrators “should take utmost consideration” to protect the interests of the child.

The 1980 Hague Convention on the Civil Aspects of International Child Abduction mandates procedures for a child abducted by one parent of a failed marriage to be swiftly returned to its country of habitual residence. The convention only applies to children under the age of 16.

The nation has come under fire in recent years over cases in which Japanese parents in estranged marriages overseas have brought children to Japan in defiance of divorce court custody or visitation rights rulings abroad.

Often, the estranged Japanese spouse claims to have fled from an abusive relationship. But the removal of a child from its country of habitual residence has been deemed a violation of that nation’s law, and the abducting parent a fugitive.

Under legislation that cleared the Diet in May, a court-designated officer can forcibly retrieve a child abducted or retained by a parent residing in Japan in defiance of an overseas custody ruling and who refuses to hand over the child.

The manual calls for the officer to attempt to take custody of the child at the home of the abducting parent, in an environment where privacy is thus protected and the child feels safe. Taking a child away in a public place, such as a day care center or on a street, may lead to “unpredictable situations” and traumatize the child, it said.

If the child cries or refuses to be returned to the other parent, the officer should not use force, according to the manual.

Should an officer visit a home to retrieve a child and is told it is not present, the child’s name should be called out and a check made on the presence of the child’s belongings, the manual says.

The officer is authorized to forcibly enter and search a home if there are indications the child is inside.

In the case of an infant, the manual allows the officer, with the parent’s consent, to remove it from the crib. But the officer must not try to forcibly take custody of an infant if the parent is hugging it tightly to prevent such action.

The manual, issued by the Supreme Court’s Civil Affairs Bureau, is based on meetings involving judges and other court officials nationwide in January and February. The gatherings covered past cases of failed domestic marriages where one parent fled with a child from the country of habitual residence without the consent of the other parent.

Court-designated officers have retrieved children in those cases but have not had specific manuals or regulations to follow. The latest document urges such officers in domestic cases to follow its instructions to avoid harming the child in any way.

In past divorce custody cases in Japan, officers apparently tried to retrieve children in public places, resulting in shouting matches.

Fiscal 2010 saw 120 domestic cases processed in which a parent demanded the forcible return of an offspring. The figure was 133 in fiscal 2011 and 131 in fiscal 2012.

Japan is the only Group of Eight member yet to accede to the Hague Convention. If it becomes a signatory, the cases will be handled by a family court in Tokyo or Osaka.

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Japan’s Potential Ratification of the Hague Convention: An Update

Posted on March 21, 2013. Filed under: Hague Convention | Tags: , , , |

Friday, March 15, 2013
Jeremy D. Morley
Japan has not yet ratified the Hague Abduction Convention. The Japanese Cabinet has today reportedly approved the ratification but the necessary legislation has not yet been passed by the Japanese Diet (Parliament).

The issue of Japan’s joining the Hague Convention is still controversial in Japan. Many members of the Diet are flatly opposed to the treaty on the ground that it will lead to the imposition of “Western thinking” on family relationships in Japan, i.e. that it might lead to the intervention of the courts into the private life of families, to the issuance of judicial orders concerning family matters that can be enforced by the power of the state, and to both parents having meaningful rights to their children after a divorce or separation.

Accordingly, newspaper editorials in Japan have demanded that, when Japanese wives “flee” foreign countries because of alleged domestic violence abroad, they must not be forced to return to the country where such abuse has occurred.
Such concerns have already led to inclusion of a provision in the draft legislation that is most likely to lead to an unnecessarily broad interpretation of the “grave risk” exception in Article 13(b) of the Convention.  Indeed, that is the intended result.
The result of such an exception would be to shield abductors who are able to claim domestic abuse even though:
 (a) The legal system in the (American) habitual residence would provide an abuse victim and child with very substantial protection;
(b) No change is being made in Japan to the lack of any meaningful provisions in Japanese law for the other parent to have any access to the child or any decision-making role in the life of the child, so that in reality the foreign left-behind parent would still be without any meaningful rights to the child; and
(c) There is no meaningful system within Japan to effectively determine the merits of such claims of abuse.
In addition, there is a serious concern that petitioning parents will be forced into mediation before being allowed to proceed with or complete their judicial case. There are special provisions in the draft legislation promoting mediation. If the mediation process works similarly to the current Family Court mediation process it will lead to lengthy delays and extreme unfairness to petitioning parents.
Mediation is generally an extremely unhelpful forum for foreigners in family law cases in Japan, since (i) foreign parties must appear in person regardless of their place of residency, (ii) the sessions are usually short and are repeatedly adjourned for lengthy periods of time, necessitating multiple inconvenient and expensive visits to Japan, (iii) the foreigners’ views are generally misunderstood for language and cultural reasons,  and (iv) the foreigners are pressured to accept unfair terms since there is no enforcement of court decisions in family law matters in Japan and because they are told that their refusal to accept the mediators’ recommendations will be held against them in a trial.

When most other countries have joined the Convention the United States could choose whether or not to accept the accession. If a country has not enacted satisfactory legislation designed to effectively enforce the terms of the Convention other countries need not accept the accession. Such is the case with Thailand, which acceded to the Convention in 2002 but has not yet enacted implementing legislation satisfactory to the United States or several other countries. By contrast, as an original member of the Hague Conference, Japan will not be acceding to the Convention, but will ratify it which will trigger its immediate entry into force without any place for international review.

Meanwhile, the Japanese public is being told that even if Japan signs the Convention, “The return of a child can be denied if the parent seeking it is believed to abuse the child or have difficulties raising him or her.” Daily Yomiuri, Mar. 16, 2013. If that is the gloss that Japan intends to put on the Hague Convention – even though the Convention is expressly designed to secure the expeditious return of all abducted children except in extremely unusual cases – there is little or no point in Japan’s purported ratification of the treaty.
The result of Japan’s ratification of the Convention will likely be to create the appearance of Japan’s compliance with international norms but without any of the substance.

 

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Things Japan can learn from Moracco about the Hague Convention

Posted on March 8, 2013. Filed under: Child Abduction, Child Custody and Visitation, Divorce, Hague Convention | Tags: , , , |

Japan and Morocco are quite similar in some ways. Morroco took some steps recently to become a Hague signatory. It would be wise if Japan followed their lead. Of the 146,408 divorces in Japan in 2009, only 3.6% involved both parents taking part in child rearing. Japan’s system seems to favor sole-custody, but Morocco had a very similar system that valued one parent, usually the mother, under Shari’a law. Although Morocco allowed the father to make important decisions about the child, such as where the mother and child could live and whether the child could travel abroad, all decisions regarding daily functions and routine care were left to the mother, essentially creating a sole custody system, similar to that of Japan. Both systems included matrifocal tendencies. While Japan’s Civil Code typically breaks custody into shinken and kangoken, the Moroccan Code of Personal Status similarly divides custody into hadana and wilaya. Morocco successfully uprooted its custody system and allowed joint responsibility to be established among parents, as one parent was given hadana and the other wilaya. In Japan, the same ideology should be adopted. Instead of granting one parent parental rights and physical custody, efforts should be made to grant shinken to one parent and kangoken to the other to allow for increased responsibility for both parents and bring about an understanding of joint custody.
Second, Japanese courts, or the Japanese Diet, need to establish visita- tion as a fundamental right. One of the key reforms Morocco made to join the Hague Convention was to establish visitation rights. However, these rights were already inherent within the Moroccan system as such meas- ures were implied when Moroccan mothers were prohibited from moving away from the father so that the father could have access to the child. Similarly, in Japan, an understanding of the psychological benefits of visitation on the child is already taking root. Courts have even granted visitation rights in some cases, but have made the rights extremely limited. It is time for Japan to push this notion and make visitation rights funda- mental within the constitutional system.
Third, Japan needs to dissolve its current registration system, or at the very least, modify the system. Allowing a child to be taken off a father’s register when a mother changes her name after divorce, resulting in the loss of parental rights for the father, is abhorrent. The registration system should be discarded completely or altered so that the child’s name will remain under both parents’ registers, regardless of the marital status of the parents. Such changes will bring Japan one step closer psychologically to joint parental responsibility.
Fourth, in order to comply with the Hague Convention, services must be available to ensure the return of children to their habitual place of residence. Like Morocco, Japan should implement law enforcement mechanisms to find abducted children and return the children safely. Fortunately Article 226 of the Japanese Penal Code is already in effect to return abducted children. The Japanese government needs to force Japanese law enforcement officers to comply with Article 226 to ensure abducted children are returned home.
Lastly, before signing the Hague Convention, Morocco entered into specific bilateral agreements to resolve familial disputes with neighboring countries to promote collaboration and global cooperation. In an effort to ease global tension, Japan would be strongly urged to do the same with the United States, the United Kingdom, France and Canada, as these four countries have repeatedly called on Japan to increase efforts to prevent parental abduction.

To read the full article click: Hague Moracco vs. Japan

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Father moves heaven and earth to get his daughter back

Posted on February 21, 2013. Filed under: Child Abduction, Child Custody and Visitation | Tags: , , , , |

Dr. Garcia`s daughter was returned to him (from Japan) in December of 2011. It was a wonderful Christmas present for him. Univision just released a story about Garcia`s fight to get his daughter back. His is the only case of a child being returned (from Japan) through legal means to the country of habitual residence. Click on the link to watch the story (in Spanish).

http://univision-garcia

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Hague not a priority….Japan will sign the Hague

Posted on January 20, 2013. Filed under: Child Abduction, Hague Convention | Tags: , , , , |

I am a bit confused. Two articles came out on the same day. Three articles in the last 3 days. One says Hague on fast track, another say Japan will join the treaty, and the third says treaty is not a priority. It seems clear that politicians and bureaucrats are not on the same page and nothing is going to happen in the next diet session. Japan has been saying for over 10 years they will sign the Hague. There are still a large number of lawyers that disagree about signing the Hague. I don’t think this treaty will be signed until there is an overwhelming consensus that it is a good thing. Click on the links to read the full articles.

Hague treaty not priority, past bill needs study: Tanigaki

http:/hague not priority

Japan says it will join child abduction treaty

http://join child abduction treaty

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Four recent videos, Hague & kids can’t meet one parent

Posted on February 26, 2012. Filed under: Child Custody and Visitation, Hague Convention | Tags: , , , |

More stories and more news programs are popping up these days.  Japan is moving toward signing the Hague. Unfortunately, they have already built in loopholes so that no children will have to be returned from Japan to their habitual residence.  Parents within Japan are also working hard to get legislation passed that will allow children to meet with both parents.  The media has been covering more stories related to these issues. While these stories are often a bit slanted they are never the less making it into the news. More people are slowly becoming aware of the problems surrounding the family courts and their ineffectiveness to deal with custody issues. Below are 4 links, 2 focus on the Hague and the other 2 are related to kids not being able to see both parents.

TBSFeb/2012

hague FNN Feb/2012

kodomo ni aenai

NHK LBP Jan/2012

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Japan set to sign international child-custody law in March

Posted on February 8, 2012. Filed under: Hague Convention | Tags: , , , |

After years of international pressure, Japan is finally moving to sign the Hague Convention on child-custody disputes.

The government plans to propose new legislation to the Diet in March so that it can sign the treaty.

The United States and Europe have been particularly critical of Japan’s foot-dragging on the issue.

Still, it remains unclear whether the bill will be passed in the current Diet session due to persistent opposition within both the ruling and opposition parties. Submissions of key legislation could also take precedence.

The bill was based on proposals submitted to the justice minister by the Legislative Council, an advisory panel, on Feb. 7.

Among the Group of Eight advanced nations, only Japan has yet to sign and ratify the Hague Convention on the Civil Aspects of International Child Abduction.

The convention is designed to deal with cross-border “abductions” by parents of broken international marriages.

It requires a parent to return a child to the nation of habitual residence if the child is under 16 and taken to another country without the consent of the ex-spouse.

The convention stipulates that the parents of the child must settle the custody dispute in the country to which the child is returned.

The panel’s proposals outline procedures that allow, among other things, a family court to rule whether a child must be returned to the country of habitual residence after a request for the child’s return is made.

The court’s discussion of the case takes place behind closed doors.

But the Japanese parent can appeal the ruling to a high court and the supreme court.

If a Japanese parent does not comply with the ruling, court officials can forcibly remove a child to return him or her to the country of former residence.

The outline also spells out cases in which the Japanese parent does not need to return the child:

When a child has adjusted to a new environment after spending a year in Japan;

When the other parent calling for the child’ return did not actually take care of the child;

When the other parent gave consent to the former Japanese spouse taking the child to Japan;

When a child refuses to return to the country of former residence; and

When a child is at great risk of being tormented, both mentally and physically, as a result of abuse by the non-Japanese parent and abuse of the Japanese parent by the foreign spouse.

The latter refers to instances when the Japanese parent returned to country of former residence with the child at the request of the former spouse. It also envisages the failure of a foreign parent to look after the child due to a history of domestic violence, drug addiction or alcohol abuse.

The Foreign Ministry is pressing for passage of legislation, calling it Japan’s pledge to the international community.

In a summit with U.S. President Barack Obama in November, Prime Minister Yoshihiko Noda expressed his resolve to join the convention after submitting a bill to the Diet session that began last month.

But the ruling Democratic Party of Japan and opposition parties are divided over some clauses of the draft bill.

The government needs the cooperation of the opposition camp to win Diet passage of the bill. However, the two Diet chambers are controlled by differing blocs, and the opposition camp is stepping up its confrontational approach to the Noda administration with respect to policy issues.

The bill could take a back seat in Diet discussion because the government is now focusing on bills to raise the consumption tax rate, analysts said.

Asahi Shimbun

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Japanese parents unarmed in battle for kids taken abroad amid radiation fears

Posted on February 8, 2012. Filed under: Child Abduction, Child Custody and Visitation, Hague Convention | Tags: , , , , |

 

By MANABU SASAKI / Staff Writer Asahi Shimbun

A woman who has not seen her two children since March, when the Great East Japan Earthquake struck, is starting to give up hope of ever seeing her sons again.

The woman’s apartment still contains the brand-new jacket and school bag that her older son would have used if he had entered elementary school in April. The mother, a civil servant, also finds herself searching for her two sons in her apartment when she returns home from work, despite knowing deep inside that her home is empty.

But it wasn’t the quake or tsunami that separated her from the boys, aged 5 and 7.

“It is like a kidnapping,” said the woman, who lives in the Tokai region.

The boys are now in the United States with the woman’s American husband, who has refused to return to Japan, citing radiation fears. He has also filed for divorce.

There is very little she can do to win custody of the children because the Japanese government has not passed the necessary legislation to join the Hague Convention on the Civil Aspects of International Child Abduction. Under the convention, if a parent illegally flees with a child under 16 to another nation, the child has to be returned to the former nation of residence.

Tokyo signaled its intention to ratify the treaty after a number of high-profile cases involving Japanese mothers taking their children to Japan without the consent of their foreign ex-spouses or in defiance of court orders.

But since the Fukushima nuclear accident started in March, Foreign Ministry officials have received a number of inquiries from Japanese parents whose spouses have left Japan for their home nations with their children in tow, using the accident at the Fukushima No. 1 nuclear power plant as an excuse not to return.

About the only thing ministry officials can do is pass on lists of lawyers in the foreign nations where the spouse has gone to.

“We feel sorry for the parents because this is a form of negative publicity from the nuclear accident,” a ministry official said. “We hope the couples will hold calm discussions based on objective information about radiation.”

The Tokai woman’s husband in March took the boys to the United States for what was supposed to have been a one-month visit. But the Great East Japan Earthquake soon struck, and the husband refused to return to Japan, expressing concerns that the sons could be exposed to radiation from the Fukushima nuclear accident.

Daily reports in the United States showed the damage from the quake and tsunami. Nuclear experts often appeared on TV citing the dangers of the radiation spewing from the Fukushima plant.

The woman used a TV phone over the Internet to talk with her husband and children, trying to convince them that the Tokai region was safe.

But the children, perhaps influenced by their father, also expressed concerns about the danger of waves flowing inland as well as poison in the air.

The husband initially said he would return to Japan once the situation at the nuclear plant stabilized. However, by summer, he had withdrawn about $17,000 from his wife’s bank account and had rented an apartment in the United States.

In November, he filed a lawsuit in the United States seeking a divorce. He did not abide by his initial promise even after the Japanese government declared the situation at the Fukushima plant to be under control.

The woman met her future husband in 2001, when she was studying in New York. They were married the following year.

The husband was still a student, and living in New York was not economically feasible. So the couple decided to move to Japan with the wife working to support the family.

But now, she lacks any assurance of finding a stable job in the United States. She feels the possibility is low that she would be granted custody of the children under such conditions.

She has consulted with a U.S. office handling inquiries about abducted children. If Japan had joined the Hague Convention, the United States would have been obligated to return her children to Japan as a member of the convention, the office told her.

But Japan has not yet joined, leaving her and her children uncovered for protection under the convention.

She also consulted a lawyer in the United States because she felt the only way to get her children back was through a lawsuit of her own. But she was told that U.S. courts looked at how the children were being raised over the most recent six months. That would put her at a disadvantage because she had been separated from her children since the natural disasters.

Having allowed her children to remain in the United States because of radiation fears ended up working against her.

A court case in the United States can be time-consuming and costly, and she has no guarantee of winning.

Through letters and phone calls, she repeatedly tells her two children that they mean everything to her, but she has no idea when she may see them again.

“I hope the government joins the convention as soon as possible to prevent parents from successfully fleeing with their children,” she said.

Officials said there have been cases of lawyers recommending that parents flee Japan with their children because there is a good chance they can get away with it.

“Custody battles with a foreign nation should be resolved through international rules after joining the Hague Convention,” said Mikiko Otani, a lawyer who specializes in divorces among international couples. “It is extremely difficult for an individual to find a lawyer in a foreign nation specializing in such matters and proceeding with legal action.”

She also said many parents in Japan face difficulties because there are few lawyers knowledgeable about international divorce cases.

“There are risks involved in international marriage because of differences in laws and cultures,” Otani said. “There are also major differences in thinking on divorce and custody, so there is a need to be aware of the need for a basic understanding of the related laws.”

By MANABU SASAKI / Staff Writer
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Outline of child custody bills approved Ministry to draft new regulations that would come into force after Japan signs Hague convention

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

 

Staff writer Japan Times

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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Six nations press on Hague treaty

Posted on November 13, 2011. Filed under: Child Abduction, Hague Convention | Tags: , , , , , , , |

Kyodo

The U.S., Canada and four other countries have jointly urged Japan to take legal steps to ensure that parents who have removed their children after the failure of international marriages will not be preferentially treated contrary to an international treaty on cross-border child custody disputes, government officials said Tuesday.

The six countries — including Britain, France, Australia and New Zealand — submitted the joint statement in writing, the officials said. It was part of the Justice and Foreign ministries’ one-month public consultation from the end of September on interim proposals for domestic legislation prior to Japan’s accession to the treaty.

The rare move reflects the countries’ strong interest in Japan’s accession to the Hague Convention on the Civil Aspects of International Child Abduction. The treaty is designed to ensure the prompt return of children who have been abducted from their country of habitual residence.

The envisioned domestic legislation would indicate that children will not have to be returned when the parent has fled an abusive spouse or could face criminal prosecution, presumably in connection with the abduction of offspring, in his or her country of habitual residence.

The joint opinion, submitted by the Canadian Embassy in Tokyo on behalf of the six governments, states that the interim proposals deviate from the convention, which allows the return of children to be rejected only when they could face a “grave risk” if returned, making spousal violence and other reasons inapplicable, the officials said.

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October 16th, 2011 Demo for Joint Custody in Tokyo

Posted on November 7, 2011. Filed under: Child Custody and Visitation, Divorce, Hague Convention, Video | Tags: , , , , , , , , , |

On October 16th, 2011 there was a demo in Tokyo for joint custody and the Hague. Kevin Brown, the co-founder of Children First (www.childrenfirst.jp), cycled from Kumamoto to Tokyo to raise awareness about child rights. It took him 31 days to reach Tokyo. Along the way he recieved help from other left behind parents. He stayed one to three days with fellow left behind parents in Fukuoka, Yamaguchi, Hiroshima, Kobe, Osaka, Kyoto, Okazaki, Hamamatsu, and Tokyo. Kevin, like most left behind parents has little access to his child. Like all left behind parents, he wants to see his child more than once a month for 4 hours, the average time awarded by Japanese Family Court Judges. Kevin would like to see Japan adopt a joint custody system similar to that in most western countries. Japan is the only G-7 country without joint custody. And Japan is the only G-8 country not to sign the Hague. Kevin stopped at 15 prefectural offices during his cycling tour. He spoke about joint custody and other issues affecting the well being of children.  You can see about 1 minute of the demo if you click on the link: October 16th demo in Shibuya

The Japan Times published Kevin’s story: Dad seeks visitation reform

as did the Asahi Shimbu (nihongo): asahi shimbun

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FROM SQUARE ONE / Protecting kids when intl marriages break down

Posted on August 28, 2011. Filed under: Child Custody and Visitation, Divorce, Hague Convention, Japanese Family Law | Tags: , , , , |

The Yomiuri Shimbun

The government has decided to join the Hague Convention on the protection of children who are taken or kept in a certain country by one parent without the other’s consent when international marriages break down. The government is now studying the establishment of the necessary legal framework. However, some people have expressed caution about signing the treaty, raising such questions as how to deal with parents and children who come to Japan to escape domestic violence.

In May, the Cabinet decided Japan should participate in the Hague Convention, and this decision was conveyed by Prime Minister Naoto Kan to a summit meeting of the Group of Eight countries in Deauville, France, later that month.

The formal name of the treaty is the Hague Convention on the Civil Aspects of International Child Abduction.

The multinational treaty is designed to provide an expeditious method to return children abducted from one participating nation to another. It is also designed to prevent one parent from removing children from the country where they habitually reside without the consent of the other parent after the marriage collapses.

The convention was adopted at the Hague Conference on Private International Law in 1980 and enforced in 1983. As of July, 85 states are parties to the convention, but few Asian countries have joined.

Under the convention, a child under 16 years old should be returned to its place of habitual residence if one of its parents takes the child out of that country without the consent of the other parent after their marriage collapses. If the parent who remained in the nation of habitual residence demands the return of the child, that child should, in principle, be returned.

The convention is based on the idea that it would serve the best interests of the children if they remained in the nation of habitual residence and courts in that nation decide how the children should be raised.

International marriages involving Japanese nationals increased sharply in the 1980s and ’90s. The annual number of international marriages has hovered around 30,000-40,000 since 2000.

On the other hand, the number of divorces among international couples has also increased, reaching about 20,000 in 2009.

In recent years, there have been many cases of Japanese women who married and began living in other countries, such as the United States, Canada and France, who returned to Japan with their children and refused to let their children have any contact with their fathers. This has become a major issue in North America and Europe.

As of May, there were 100 cases in which children had been removed from the United States, followed by 39 in Britain, 38 in Canada and 32 in France, according to reports received by the Foreign Ministry from other countries.

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External pressure

Under the Japanese “sole parental authority” system, only one parent has parental rights after a married couple has divorced. It is not unusual, therefore, for a parent without parental rights to be refused any contact with his or her children.

In the United States and Europe, joint parental authority or joint custody is common practice. Under this system, parents and their children who live separately after divorcing frequently meet and interact with their offspring.

Because of cultural and institutional differences in parent-child relations, other countries regard Japan as a nation that refuses to allow divorced parents to meet their children.

Last September, the U.S. House of Representatives adopted a resolution asking Japan to sign the convention. The French Senate adopted a similar resolution in January this year.

With Japan coming under increasing pressure, the government started preparations for joining the convention by studying the necessary legal arrangements and deciding to designate the Foreign Ministry as the “central authority,” stipulated in the convention, to discharge duties imposed by the convention on such authorities.

(Aug. 25, 2011)
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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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EDITORIAL: Japan needs effective system for Hague child-custody treaty

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

–The Asahi Shimbun, July 12

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Mexican man convicted of abducting daughter from separated wife in Niigata

Posted on July 6, 2011. Filed under: Child Custody and Visitation, Divorce, Japanese Family Law | Tags: , , , , , , |

Jul. 06, 2011 – NIIGATA —

A Mexican man was found guilty and given a suspended jail term Tuesday for forcibly taking his daughter from his separated Japanese wife last November by breaking into her home in Niigata on the Sea of Japan and injuring her mother who tried to prevent him.

The Niigata District Court sentenced Nathanael Teutle Retamoza, 33, to two years in prison, suspended for four years, for his behavior aimed at taking the 1-year-old girl to the United States, at a time when the Japanese government is preparing for legislation to help settle international child custody disputes.

The ruling said it was ‘‘selfish’’ for Retamoza to act on his urge to see his daughter, from whom he had been separated for two months, without heeding the sentiment of his former wife and her relatives.

It also noted that he prepared for the abduction well in advance as he booked U.S.-bound air tickets for himself and his daughter beforehand.

However, the court said the prison sentence is suspended as the man regretted inflicting on his former mother-in-law injuries that required two weeks of treatment and received punishments in the forms of nearly eight months of detention and abandonment of his daughter’s custody.

According to Retamoza’s lawyer, the couple divorced after the incident and the mother was awarded sole custody of the daughter. Also after the incident, the court served a restraining order on him following the wife’s claim of abuse.

In a similar case, an American man was arrested in September 2009 in Fukuoka Prefecture on suspicion of abducting his son and daughter in a bid to reclaim them, as his ex-wife had taken them from the United States to Japan.

But prosecutors did not file criminal charges against Christopher Savoie.

To deal with cross-border parental abduction cases, Japan decided in May to join the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which sets procedures for settling international child custody disputes.

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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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Tokyo Left Behind Parents Demo on Jan. 16th

Posted on January 22, 2011. Filed under: Child Abduction, Child Custody and Visitation, Hague Convention, Japanese Family Law, Video | Tags: , , , , , , , |

A group of left behind parents met in Tokyo on a cold winter day to protest and speak about child abduction and the need for Japan to change it’s outdated Family Law. Parents want more access to their children. Parents want joint custody like all of the other G-7 countries have. Children have the right to see and love both parents. Under Japanese law only one parent has custody after divorce and the other parent often loses custody and contact with the child. Left Behind Parents gave speeches and marched down the street in Shibuya. This was an excellent turnout for such a cold day. About 80 parents and concerned citizens showed up to raise awareness about child abduction. The children are the foundation of the future. Click on the link to view a 3 minute video of the demo.

Tokyo Left Behind Parents Demo

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When Families Break-up

Posted on January 20, 2011. Filed under: Child Abduction, Child Custody and Visitation, Japanese Family Law | Tags: , , , , , , , , |

WHEN FAMILIES BREAK UP / Divorced parents fighting for right to see own children

The Yomiuri Shimbun

We live in a time when divorce has become commonplace. In Japan, a couple gets divorced every two minutes. Consequently, the number of divorced parents filing requests with the courts for visitation rights is increasing.

There is also a growing number of conflicts resulting from breakups of couples from different countries. Due to differences in interpretation regarding child custody, parents have been accused of abducting their own children and taking them to another country.

As families and people’s values diversify, certain problems have become difficult to resolve under the existing system.

Starting today, we will look at some of the problems divorced parents face as they struggle to win the right to see their children.

After separating from her husband five years ago, a 51-year-old woman in Tokyo began a long struggle to see her 15-year-old son.

The woman, a temporary worker, has only been able to see her son twice in the five years that have passed. The meetings, held in a court and in the presence of a court personnel, totaled just 95 minutes.

On both occasions when the woman saw her son, she was unable to stop tears welling up.

“My son, who is taking piano lessons, put his hand on mine to compare the size,” she said. “As I saw him staring at me while talking, I felt we were deeply bound inside.”

Desperately wishing to see her son more often, in July 2007 she applied to the family court for mediation on the issue of visitation rights.

However, the woman’s former husband initially resisted all requests to allow her to visit her son, citing the boy’s need to focus on his schooling, including preparing to move up to the next grade.

As part of the mediation process, in which a voluntary settlement is sought with the help of commissioners, the court initially set up two short meetings between the woman and her son as a way of determining the format future meetings should take.

The two met for 50 minutes in March 2008 and 45 minutes in April 2009.

“My son remembered the meeting we had a year earlier,” the woman said.

While the court advised that the woman be allowed to visit her son every two months, the couple failed to reach an agreement. As a result, the mediation process moved to the next stage, which will see a final decision issued by a judge.

“I’m so worried that I might never be allowed to see my son again,” she said.

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Children caught up in disputes

The number of divorces nationwide reached 250,000 in 2008, according to a Health, Labor and Welfare Ministry survey. Of those divorced couples, 140,000 had children aged under 20, which numbered more than 240,000.

The rising number of divorced couples is accompanied by an increasing number of conflicts involving children.

According to an annual survey compiled by the Supreme Court, family courts across the country mediated in 6,261 cases concerning disputes over meetings between divorced parents and their children and judges were forced to deliver a final decision in 1,020 of those cases. Both figures were triple the numbers a decade ago.

Even through such court-mediated procedures, only half of the parents involved in the cases won permission to see their children.

In addition, regardless of an agreement or court order reached on visitation, if the parent who lives with the child strongly resists allowing meetings, it remains difficult for the other parent to see the child.

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Maintaining contact important

Several years ago, a 40-year-old man from Kanagawa Prefecture seeking the right to see his then 1-year-old son applied for court mediation.

He had helped his wife take care of the baby, feeding him milk and changing his diapers at night. On his days off, he took the boy to a park to play. “I had no inkling I’d be prevented from meeting my son after the divorce,” he said. “But I was completely wrong.”

He said that even after the official mediation procedure started, his former wife maintained she would never allow him to see their son. She even pushed back the scheduled date for the mediation. Time passed and no decisions were made.

Desperate to see his son, the man even visited the neighborhood where the boy lived with his mother.

The former couple failed to reach a compromise through the court-led mediation process and began proceedings that would lead to a decision by a judge. Two years later, the court concluded that the man should be allowed to see his son once a month, for half a day. Nevertheless, the former wife broke the appointment set for the first meeting, leaving the man unable to see the boy.

After repeated negotiations with the woman through lawyers, he finally managed to ensure he could regularly see his son. “I believe it’s important for children’s growth to maintain a relationship with both parents,” the father said. “I think adults shouldn’t deprive their children of this right due to selfishness.”

Waseda University Prof. Masayuki Tanamura argues the existing system no longer meets society’s changing needs. “It was previously believed that divorced parents had to accept they couldn’t see children they’d been separated from,” Tanamura said. “In recent years, however, men have become more involved in child rearing and the number of children born to couples has declined. Because of this, many divorced parents have an increased desire to maintain their relationship with their children even after a divorce.”

What needs to be done to ensure that parents can see their children after a divorce? There is a growing need for this nation to find an answer to this question.

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Sole custody causing headaches

A key factor behind disputes involving divorced couples over their children’s custody is a Civil Code stipulation that parental prerogatives are granted to either the mother or father–not both.

The parent who obtains custody assumes rights and duties for his or her child, such as the duty to educate the child and the right to control any assets they might have. However, the parent without parental authority can claim almost no rights concerning their children.

In fact, mothers win in 90 percent of court decisions concerning the custody of a child–known as mediation and determination proceedings.

There is no provision in the Civil Code referring to the visitation rights of a parent living separately from his or her child, so whether the absent parent can meet the child depends on the wishes of the former partner who has been granted custody.

If the parent who has custody refuses to let his or her child meet with the former spouse in a court mediation, it is difficult to arrange visits.

Even if the parent living separately from his or her child or children is allowed to visit, the chances are limited–for example, to once a month. Moreover, if the parents who have custody ignore the court’s decision to grant their spouses visiting rights, there is almost no legal recourse to implement such visits.

Waseda University Prof. Masayuki Tanamura said: “The current system strongly reflects the Japanese family system established in the Meiji era [1868-1912]. Since that time, parental authority has been regarded as the right of the parents to control their children, so couples fight over it.”

Meanwhile, as the number of divorces increased from the 1970s to the ’90s in Europe and the United States, such countries began allowing joint custody, in which former couples cooperate in bringing up their children even after breaking up.

Lawyer Takao Tanase, who also serves as a professor at Chuo University, said: “[In such countries,] the rights of parents who live separately from their children after divorce to visit and communicate with their children are recognized, and such visits occur regularly. For example, there are cases in which such parents meet with their children once a fortnight and spend the weekend together.”

The number of international marriages is increasing yearly–reaching a record high of 18,774 cases in 2008–and the difference in the custody system between Japan and foreign countries causes serious problems when a Japanese splits from his or her foreign spouse.

Cases in which Japanese living in foreign countries take their children back to Japan after divorcing a foreign spouse have become an international problem. The Foreign Ministry confirmed 73 such incidents in the United States, 36 in Canada, 35 in France and 33 in Britain.

There is an international law to deal with such disputes. The Hague Convention on the Civil Aspects of International Child Abduction stipulates that if a former husband or wife takes his or her child or children to another country without the consent of the former spouse, the spouse can apply to bring the child back to the country where they were living. Member countries assume an obligation to cooperate in bringing the child back to the home country.

Many European countries and the United States have joined the convention, but Japan has yet to ratify it. International pressure on Japan to adopt the convention is growing.

“We need to separate the problems of parent-child relationships from the problems between couples. We need to establish laws enabling children to meet with the parent who is living separately after divorce, with the exception of cases in which the child is exposed to potential physical danger by meeting the parent,” Tanase said.

“In Japan, divorce is becoming increasingly common, and it’s important to accept the idea that divorced couples will share child-rearing duties even after divorce,” he added.

(Feb. 3, 2010)

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