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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Bullying-related complaints, child abuse cases hit record highs in 2010

Posted on March 11, 2011. Filed under: Abuse Neglect Death, Bullying | Tags: , , , , |

TOKYO —

Complaints over school authorities’ inappropriate responses to bullying and cases of child abuse addressed under a Justice Ministry program to remedy human rights violations both reached record highs in 2010, the ministry said Friday.

The number of bullying-related complaints jumped 51.9 percent from the previous year to 2,714 and abuse cases grew 6.3 percent to 771, it said.

‘‘The number of cases directly reported by affected children grew. It is possible that they brought to light underlying cases,’’ said an official of the ministry’s Human Rights Bureau.

The total number of human rights violations has remained at the 20,000 level since 2004. In 2010, the total came to 21,696, up 2.3 percent from the previous year.

Cases of violence and abuse accounted for the largest number of the total human rights violations at 4,788, down 6.1 percent from 2009.

Cases of privacy violation remained almost unchanged at 1,752, with online harassment accounting for 40 percent of the total.

Meanwhile, a case of sexual abuse of a girl by her own father surfaced in one of the ‘‘children’s human rights SOS’’ letters that the ministry’s legal affairs bureaus have distributed to elementary and junior high schools across Japan since 2007. The child was promptly taken into protective custody, the ministry said.

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French father commits suicide because he can’t see his child

Posted on February 1, 2011. Filed under: Child Custody and Visitation, Divorce, France, Hague Convention, Suicide | Tags: , , , , , , , , , , , |

The life and career of Arnaud Simon once could have exemplified the excellent relationship between Japan and France. A young French historian teaching in Tokyo, Simon was preparing a thesis on the history of thought during the Edo Period. He was married to a Japanese woman. They had one son.

But on Nov. 20, Arnaud Simon took his own life. He hanged himself. He did not need to leave an explanatory note; his closest friends knew he had lost the appetite for living because his wife would not allow Simon to see his son after their marriage broke up. Simon apparently tried on multiple occasions to take his boy home from school, but the police blocked the young father each time.

“The lawyers he met were trying to appease him, not help him,” one of his former colleagues remembers.

Another Frenchman in the same situation, Christophe Guillermin, committed suicide in June. These two deaths are terrible reminders of the hell some foreign parents inhabit in Japan – and because of Japan. When a couple separates here, custody of any children is traditionally awarded to the mother. After that, the children rarely have contact with the “other side”; they are supposed to delete the losing parent from their lives.

There is no tradition of visitation rights in Japan, and even when those rights are granted, the victory generally comes at the end of a long and costly judicial battle fought in Japanese courts. The visitation rights given are also typically very limited – sometimes just a couple of hours per month. Worse yet, the mother ultimately decides whether she wants to abide by the agreement. The police will not intervene if she refuses, on the grounds that this is a private matter. While there are exceptions, Japanese fathers seem to have basically accepted this practice. For foreign fathers, it is almost universally impossible and unbearable.

France is particularly touched by these tragedies. There have been many unions between Japanese women and French men, and many breakups. Simon’s death was shocking enough to the French community for the French ambassador to issue a stern and in many ways personal press release afterward: “Mr. Simon recently told the Consulate of the hardships he endured to meet his son, and it is most probable that to be cut off from his son was one of the main reasons (for his suicide). This reminds us, if necessary, of the pain of the 32 French fathers and of the 200 other (foreign cases involving) fathers known to foreign consulates as deprived of their parental rights.”
A Killing Separation

During a recent trip related to this subject in Japan, French judge and legal expert Mahrez Abassi said: “Japan has not ratified the Hague Convention on civil aspects of international children’s abductions. There is no bilateral convention on this topic, and our judicial decisions are not recognized in Japan.” Tokyo is in a precarious position on this issue, since one of the main topics of Japan’s diplomacy is the case of Japanese nationals abducted by North Korea, for which Japan requires international solidarity.

Japan’s Ministry of Foreign Affairs seems preoccupied by the problem, which only promises to grow because of the constant rise of international divorces in Japan – now at 6 percent – and of Japanese-foreign births (20,000). Various diplomatic delegations have visited Japan to discuss the issue. France and Japan set up a “consulting committee on the child at the center of a parental conflict” in December 2009. But the National Police Agency, the Justice Ministry, and Japanese civil society in general care little about the issue.

“There is no system better than another for the child after a breakup,” says a foreign psychiatrist who has followed cases of foreign fathers that have lost access to their children in Japan. “The French and American systems have deep flaws as well. But it is simply unbearable for a French father, for example, to be unable to meet his child.”

A French lawyer based in Tokyo, adds: “The principle of joint custody as it is known in France does not exist in Japan. To implement such a principle here, we would have to amend the Civil Code, which is very hard for family law matters in this country. If this change is enacted, the police should then compel Japanese families to hand over the ‘disputed’ child to the foreign father. This seems pretty hard to achieve.” ❶

Regis Arnaud is the Japan correspondent of leading French daily Le Figaro and has been covering Japan since 1995. He is also a movie producer. His next project, called CUT, laments the decline of the Japanese movie industry.

A killing separation By: Regis Arnaud

Number 1 Shimbun, December 16, 2010

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