U.S. official calls for return of all kids taken to Japan after failed marriages
Feb 28, 2014
WASHINGTON – A State Department official on Thursday called for the return to American parents of all children taken to Japan without their consent by their former Japanese partners after failed international marriages.
“We will not be satisfied until all those children are home where they belong,” Susan Jacobs, special adviser for children’s issues at the department, said in a hearing of the Senate Committee on Foreign Relations.
Although Japan is set to join the Hague Convention on the Civil Aspects of International Child Abduction in April, which mandates the return in principle of children taken away from their countries of habitual residence, the pact will not be applied to cases that occurred before Japan becomes a party.
The United States and numerous other countries have repeatedly urged Japan to sign the treaty. The government plans to resubmit in mid-March a set of bills to the Diet necessary for Japan to join the international treaty on settling cross-border child custody disputes.
Jacobs thus sought further action by Tokyo so as to ensure the return of children taken away from their American parents and moved to Japan before the treaty takes effect in Japan.
During the hearing, Jacobs revealed there are 80 such children whose custody is requested by their American parents.
“We have not forgotten cases that still exist,” Jacobs said.
In a statement to the Senate committee, Jacobs said, “We look forward to continued progress with the Japanese government on resolving existing cases in the spirit of the convention.”
Address: Ministry of Foreign Affairs
2-2-1 Kasumigaseki Chiyoda-ku
Telephone: +81 3 5501 8152
Fax: +81 3 5501 8148
General website: http://www.mofa.go.jp/
Contact point: Consular Policy Division
Languages spoken by staff: Japanese (by telephone)
Japanese and English (by fax)
(The following information was provided by the relevant State authorities or was obtained from the replies to the 2003 and/or 2008 Service Convention Questionnaires)
(Art. 3(1)): the judges
Methods of service
Formal Service (Art. 5 (1)(a))
The Minister for Foreign Affairs refers the document to the competent court of justice. Service is then effected either by post (special postal service, Article 49 of the Mail Act; a report of service is drawn up by the postman) or through a marshal.
Informal delivery (Art. 5(2))
The Minister for Foreign Affairs refers the documents sent to it to the competent court clerk. The court clerk informs the addressee of the documents to be served and the addressee then either presents himself / herself to the court or requests that they be forwarded to him / her. In the latter case special postal service will be effected (Article 49 of the Mail Act; the postman will draw up a report of the delivery).When the person to be served refuses to accept the documents, or fails to appear or to apply for forwarding the documents to him / her within three weeks of the date on which he/she was informed, the documents will be returned to the applicant.
Service by a particular method (Art. 5(1)(b))
When it is so requested, a marshal will effect service by delivering the document directly to the person after ascertaining that he / she is the addressee.
Full translation is required for any document to be served under Article 5(1)(a)(b). We serve the translation to the addressee together with the original.
Japan has not concluded any agreements under Article 20(b).
Costs relating to execution of the request for service
In principle, the applicant incurs no charges because the National Treasury bears costs of service. However, in the case of service by a marshal, a fee is charged and should be reimbursed. To that end, the court which effected the service sends a bill of the costs to be reimbursed to the applicant together with the certificate referred to in Article 6.
When executed by a marshal, the amount to be paid for the performance of service is 1,800 yen (service in working hours on weekdays) or 4,200 yen (service in night times, weekends or holidays) plus the marshal’s travel expenses, which is 37 yen per kilometer from the competent district court to which he / she belongs.
Time for execution of request: About four months
Oppositions and declarations
(Art. 21(2)): Click here to read all the declarations made by Japan under the Service Convention.
Art. 8(2): No opposition
“Japan has not declared that it objects to the sending of judicial documents, by postal channels, directly to addressees in Japan. As the representative of Japan made clear at the Special Commission of April 1989 on the practical operation of the Service and Evidence Conventions, Japan does not consider that the use of postal channels for sending judicial documents to persons in Japan constitutes an infringement of its sovereign power.”
“Nevertheless, as the representative also indicated, the absence of a formal objection does not imply that the sending of judicial documents by postal channels to addressees in Japan is always considered valid service in Japan. In fact, sending documents by such a method would not be deemed valid service in Japan in circumstances where the rights of the addressee were not respected.”
(See Conclusion and Recommendation No 57 of the 2003 Special Commission.)
Art. 10(b): Opposition
Art. 10(c): Opposition
Art. 15(2): Declaration of applicability
Art. 16(3): No declaration of applicability
Derogatory channels (bilateral or multilateral agreements or internal law permitting other transmission channels)
(Arts. 11, 19, 24 and 25)
Information may not be complete or fully updated – please contact the relevant authorities to verify this information.
Consular Convention between Japan and the United States of America
Consular Convention between Japan and the United Kingdom of Great Britain and Northern Ireland
Agreements or arrangements concerning judicial assistance between Japan and; Swiss Confederation, Kingdom of Denmark, Republic of Italy, Democratic Socialist Republic of Sri Lanka, Federative Republic of Brazil, Kingdom of Thailand, Federal Republic of Germany, United Kingdom of Great Britain and Northern Ireland, Syrian Arab Republic, Kingdom of Norway, Australia, Islamic Republic of Iran, Republic of Austria, State of Kuwait, Republic of Iraq, State of Israel
(This page was last updated on 15 May 2009)
Japan – Competent Authority (Art. 6)
The District Court which has rendered judicial aid with respect to the service is designated as the authority competent to complete the certificate in the form of the model annexed to the Convention, pursuant to the first paragraph of Article 6.
Japan – Competent Authority (Art. 9)
Ministry of Foreign Affairs
2-2-1 Kasumigaseki Chiyoda-ku
The following has kindly been translated for Children’s Rights Council of Japan by a U.S. licensed attorney who is a native speaker of Japanese. It is a translation of the Japanese Central Authority’s Application for Visitation Procedures section and is for those parents who are residing in the United States seeking Visitation Rights for Children located in Japan.
LBPs Requesting Visitation
(With respect to the Hague Convention Central Authority)
1. Before Applying – Grounds for Dismissal
Those who request Visitation can apply for “Assistance for Visitation or Contacts with a Child in Japan” through the Central Authority. However, if any of the Grounds for Dismissals below apply (under Act for Implementation of the Convention on the Civil Aspects of International Child Abduction Article 18 (1)), your Application for Assistance will be dismissed. Therefore, Applicants must verify whether their Application fall under any of the following categories:
① The child is over 16 years old;
② It is known that the child is not present in Japan, and the country of the child’s presence is unknown;
③ It is known that the child is present in a Hague Non-Member country;
④ It is known that the child’s location and the Applicant’s (LBP’s) residence or habitual residence is within the same Hague Member country;
⑤ It is known that the Applicant’s residence or habitual residence in within Japan AND it is known that the LBP does not have a resident or a habitual resident in any other Hague Member country;
⑥ It was known that immediately prior to separation from the child, the child’s habitual residence was within a Hague Non-Member country; and
⑦ It is known that under the laws of the country, state or local area of the habitual residence of the child, immediately prior to the
separation of the child, the Applicant was prevented from visiting or meeting the child.
2. Brief Summary of Procedures
The following system is for Applicant’s whom are not able to see their children despite the fact that they have received Visitation Rights
accordingly to the laws of the original habitual residential country.
3. How to Submit an Application
As shown above, an Applicant may submit an Application to the Japanese Central Authority.
If the Applicant is submitting an application to Japanese Central requesting Support in Visitation or Other Contacts with the Child, Applicant must fill in and submit the Designated Application Form along with the Necessary Documents.
※ LBPs who are seeking Visitation Rights through Japanese Courts may also directly Petition to the Tokyo/Osaka Family Courts. For more information on how to petition, please directly contact a Japanese Attorney or the Tokyo/Osaka Family Courts (in the original document it advises the Applicant to contact any Japanese Family Court. However, under the page for “Request for Assistance in Return of a Child,” it only designates the Tokyo/Osaka Family Courts as a contact.) However, please note that the Japanese Family Courts only accept communications in Japanese.
4. Procedural Steps to be Taken by the Central Authority Upon Receipt of the Application
(1) Discovering the Child’s Whereabouts
In cases where the child’s caretaker is residing is unknown, the Central Authority, through assistance of the Japanese Administrative Agencies and/or the Local Public Agencies shall investigate the child and the caretaker’s whereabouts.
(2) Decision to Support
After reviewing the Application under the terms of the “Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (http://www.japaneselawtranslation.go.jp/law/detail_main?re=02&vm=04&id=2159), the Central Authority shall make a decision on whether or not to Assist the Applicant through either one of the following actions and notify the Applicant of the action.
(i) Decision to Assist;
(ii) Dismiss the Application; or
(iii) If the child is found to be residing in another Hague Member Country, the Central Authority shall forward the Copies of the Application along with the Accompanying Documents to that Country.
(3) Clerical Duties of the Central Authority upon Decision to Support the Application
If under the Hague Convention it is desirable to resolve the problem directly between the Taking Parent (TP), and the
Applicant, and the TP and would prefer mediation, the Central Office shall assist with Communications between the
Applicant and the person interfering the Contacts with the child, and refer the Applicant and the TP to other ADR
Agencies or Legal Professionals Referral Programs.
5. Family Court Procedures Regarding Child Visitation
Applicants who are requesting Visitation with a child residing in Japan through the Central Authority may separately Petition to the Japanese Family Courts for (Domestic) Litigation or Mediation.
Procedures for Visitation through the Japanese Family Courts basically shall be based on Domestic Laws of the Japanese Family Courts under normal procedures, unless the issue is to be handled specially for Jurisdictional Issues or Access to Court Records.
For further information on Family Court Procedures see: http://www.mofa.go.jp/mofaj/fp/hr_ha/page22_000873.html
(I shall be able to translate this section soon).
6. Support for Visitation (Introducing Parents to Parenting Coordinating Visitation Agencies in Japan)
By referring the involved parties to Parenting Coordinating Visitation Agencies in Japan, the Japanese Central Authority shall assist the involved parties with the (visitation) Orders decided upon Amicable Negotiations, Settlements, Mediation and Litigation.
Learn more about this heartbreaking issue, and how to date no child has been returned to his/her country of habitual residence as a result of any action taken by the government of Japan. The Foreign Nurses Association of Japan presents the film as a public service.
Date: February 22 (Saturday)
Time: 2 PM-5 PM
Venue: Tokyo Women’s Plaza
Cost: ¥500 donation
Q&A session with director David Hearn will follow the film.
This event is open to the public–please invite friends and colleagues. For more information, please contact Ann Endo, firstname.lastname@example.org. Reservations appreciated for planning purposes, but not required.
Japan finally signs Hague convention governing international child custody disputes
January 25, 2014
THE ASAHI SHIMBUN
After years of refusing to sign, Japan on Jan. 24 officially joined the Hague convention that governs cross-border child custody disputes that result from broken marriages.
Japan came under heavy pressure from the United States and European countries to become party to The Hague Convention on the Civil Aspects of International Child Abduction. The treaty spells out the guidelines that govern cases in which children of separated or divorced couples are taken to the home country of one parent without the consent of the other.
Nearly 20,000 international marriages a year involving Japanese nationals result in divorce. In certain cases, the Japanese parent returned to Japan with their children without the consent of the other parent.
The convention goes into effect from April 1 in Japan, at which time the Japan’s Foreign Ministry will be obliged to locate children that result from such marriages if requested to do so by a parent overseas. The ministry will then be required to take steps to resolve the dispute through arbitration or other means.
According to the convention, if a marriage fails and the parents start living in separate countries, the decision on who receives parental rights to raise children under 16 falls under the jurisdiction of the country where the family resided with the child before the breakup.
If a parent who takes a child to Japan from overseas does not agree to return the child to the country of former residence, one of two family courts located in either Tokyo or Osaka will decide the matter.
The court has the authority to judge whether to return a child to another country if it believes the child might be subjected to danger or abuse, both mental and physical, if handed over.
Cases involving children taken to Japan before April 1 will be exempt from the convention. A parent overseas can still call on the Japanese government to assist in setting up a meeting with the child in such cases.
The children of Japanese couples will also be subject to the treaty if one parent flees with a child or children overseas.
The Supreme Court has already drawn up detailed guidelines on how to resolve such disputes.
The top court is now working on a manual for family court officers outlining how they should take custody of children in the event a court decides to return them overseas.
The Supreme Court estimates the cases that will go before the two courts will number in the dozens each year, with most disputes expected to be settled out of court.
A senior official with the Supreme Court said only a few of the cases are likely to require the need for officers of the court to physically separate the children from a parent living in Japan.
Judiciary officials said the first case may go before one of the courts as early as July.
The US House of Representatives voted Wednesday to punish countries that do not promptly return abducted children, upping pressure in an issue that has soured relations with Japan and other allies.
With no dissenting votes, the House voted to create an annual report to assess every country’s history of child abductions and to require President Barack Obama to take action against nations with poor records.
Potential US measures include refusing export licenses for American technology, cutting development assistance and putting off scientific or cultural exchanges. The president would have the right to waive the punishment.
Representative Chris Smith, the author of the legislation, said it would put the force of the US government behind solving the more than 1,000 cases each year in which US children are taken overseas, generally by a foreign parent after separation from an American partner.
“It is a full-court press to finally elevate this issue, where American children’s human rights are being violated with impunity,” Smith told reporters.
“Right now, it’s like other human rights abuses, maybe on page five as an asterisk” in talks between the United States and other countries, he said.
Smith, a Republican from New Jersey, previously led legislation that set up annual reports on human trafficking and religious freedom, which have often caused discomfort for countries deemed to be lagging behind.
The child abduction legislation still needs approval in the Democratic-led Senate, but Smith voiced confidence at passage as the bill has been revised over several years to ensure support of both parties. The State Department had initially voiced concern at proposals to impose outright economic sanctions over child abductions.
By far, the greatest number of abduction cases takes place in Japan, the only major industrialized nation that has not ratified the 1980 Hague convention that requires countries to send abducted children back to the countries where they usually live.
Japanese courts virtually never grant custody to foreign parents or fathers.
Paul Toland, who served in the US Navy in Japan, said that his daughter Erika was put in the care of her maternal grandmother and that he has no visitation rights after the girl’s mother committed suicide.
“For me, this will be my 11th consecutive Christmas without my daughter,” he told reporters.
In the wake of persistent US and European criticism, Japan’s parliament took key steps this year to join the Hague treaty. But critics say that the decision will not address past cases.
The House legislation calls on the United States to seek legal agreements with all nations not party to the Hague convention to lay out ways to return children within six weeks after abduction cases are reported to authorities.
Smith named the bill after David Goldman, who succeeded in bringing his son Sean back to the United States after a five-year fight with Brazilian courts.
“We won’t stop until we get the children home, one by one, child by child,” Goldman said.
Parents of children in countries including Brazil and Argentina said that they often had no recourse, even if individual officials in foreign countries are sympathetic to their cases.
Arvind Chawdra, whose two children were abducted to India, said he had no other option but to take out a newspaper advertisement because he does not know where they are.
State Department figures show 7,000 American children were taken by a parent to a foreign country to stay between 2008 and 2012, leaving behind the other parent to fight for custody or visitation rights in places where United States court orders mean nothing.
The result is often heartbreak, as most children never return. Adding to it is the frustration from dealing with both the foreign government and the U.S. State Department, which parents and some in Congress say does not put enough emphasis on getting children back.
“Does the word parental in front of kidnapping make it less of a crime?” Michael Elias of Rutherford asked at a House hearing in May, the second time he’s told his story before Congress in the past three years.
A Marine veteran and Bergen County sheriff’s officer whose wife used illegally issued passports to take their son and daughter to Japan seven years ago, Elias has become one of the public faces for a group that calls itself “left-behind parents.”
His willingness to go public with his personal struggles could pay a small dividend today as the House is expected to give strong bipartisan support to a bill sponsored by Rep. Chris Smith that pushes the State Department to use more powerful diplomatic tools.
Unfortunately for Elias and those like him, the department is not very interested in the new powers.
In June, Japan took a step forward when it signed the Hague Convention on the Civil Aspects of International Child Abduction, an agreement that lays out a framework for custody disputes. But Japan’s action will affect only future cases, and existing disputes will be in a legal limbo.
“All the left-behind parents like Michael Elias will be shut out,” said Smith, a Republican from Robbinsville who is a subcommittee chairman of the House Foreign Affairs Committee. Smith has been urging presidents and ambassadors in President Obama’s administration and President George W. Bush’s before him to raise the issue of child abductions at high-level discussions with foreign leaders.
Smith’s bill would require the president to take specific actions — ranging from private requests all the way to economic sanctions — if abduction cases are not resolved or if countries show a pattern of non-cooperation. The State Department would have to provide Congress with statistics that Smith says are incomplete now, and pursue separate agreements known as memoranda of understanding with countries that are not likely to sign or abide by the Hague convention.
“The Pollyanna-ish, naive view that the administration keeps spouting is that Japan signing the Hague Convention might create a climate [for solving earlier cases],” Smith said. “There needs to be a memorandum of understanding or a sidebar agreement to say all of the existing cases will be solved civilly and with an eye towards justice.”
A State Department spokes¬man, when asked about Smith’s bill, recommended checking a federal website that the agency has created that spells out how different countries deal with abduction cases.
At the May hearing, the department’s special adviser for children’s issues, Susan Jacobs, disagreed with Smith that a separate agreement with Japan would make any difference.
“We have three memoranda of understanding with Egypt, Jordan and Lebanon, and there’s been no enforcement mechanism and no [child] returns,” Jacobs said. “We believe the Hague Convention provides the best opportunity for resolving these cases. One of the problems with Japan is their belief about custody, that one parent is supposed to drop out of the child’s life when there is a divorce.”
She said once the convention takes effect in Japan, she hoped to be able to work on better compliance, and at least provide for some visitation for parents.
Smith’s bill is named after Sean and David Goldman, the Tinton Falls son and father whose case caught national attention after Sean Goldman’s mother took him to Brazil in 2004 and his grandparents sought custody after she died in 2008.
Smith had been pressuring the State Department to act and made two trips with David Goldman to Brazil, which had signed the Hague convention. The boy was finally returned in 2009 after Sen. Frank Lautenberg said he would block action on a trade bill Brazil wanted.
Goldman has called the forces that aligned to help his family a “perfect storm,” but said most families in the same situation struggle with little hope.
For Elias, the only developments in recent years have been negative. He was deployed to Iraq when his wife began an affair with a Japanese man. She told Elias she wanted a divorce when he returned from the war.
A Bergen County judge awarded joint custody and ordered that the children’s passports be surrendered. But his wife, who had worked in the Japanese consulate in New York, was able to get new passports issued by the Chicago consulate as she and her companion fled with the children.
Smith traveled with Elias’ parents to Japan in 2011, and at the time they were told by authorities that a criminal investigation was under way into the passport issuance.
In February, Elias received a letter notifying that the Japanese prosecutor in the region had concluded no charges would be filed. The letter was dated October 2010, or three months before Smith and Elias’ parents had been in Japan.
“It was a slap in the face,” Elias said. “People tell me I should just pick up the pieces and move on. But two of my pieces are in Japan.”
Divorced parents take to streets in fight for right to see children
November 24, 2013
By SATOMI SUGIHARA/ Staff Writer
Japanese parents fighting for the right to see their children after divorce are taking to the streets to highlight their plight.
In a recent campaign drive, groups of the parents have gathered in front of station terminals and plazas in 16 cities across Japan, including Tokyo and Nagoya.
Wearing yellow-green T-shirts and ribbons with the words “Stop child abduction,” they hand out balloons and leaflets to passers-by to raise awareness for their call that all parents have the right to see their children.
One of the members is a male company employee in his 40s. The man said it has been two years since he last met his children, now both elementary school pupils.
“Four fathers that I know killed themselves while agonizing about the fact they could not meet their children,” he said.
Since his divorce, he said he has been allowed to meet his children only several times, each time with his ex-wife’s lawyer present. In initial meetings, his children were their usually bubbly selves, but their relationship became gradually awkward and distant since they could meet only on rare occasions.
“I want people to realize that forced separation from children produces tragic consequences,” the man said.
The campaign was organized by the “Oyakonet” Parents And Children’s Network and other mutual assistance and awareness groups of divorced parents who are denied opportunities to see their children.
In June 2012, the groups formed a campaign network “Kimidori (yellow-green) Ribbon Project,” adopting yellow-green as their symbolic colors. They are seeking legislation to give divorced parents joint custody over children and ensure the rights of both parents to see their offspring after divorce.
The Civil Code awards custody over children to only one parent, invariably to the mother, after divorce. This often means parents who do not win custody can no longer see their children when custodial partners refuse.
In fiscal 2012, divorced parents sought judicial arbitration and judgment in 11,459 cases for the right to meet their children. The figure was a three-fold increase over 10 years ago.
A survey by the welfare ministry that covered about 1,300 divorced mothers in fiscal 2011 found that in 51 percent of cases children had not seen their fathers regularly.
Joint custody is recognized in the United States, France and many other countries in the belief that continued exchanges with both parents is essential to healthy growth.
In 2012, the revised Civil Code took effect. It requires parents to decide visits to their children at the time of divorce. But it does not outline how this should be done.
The government aims to accede to the 1980 Hague Convention on the Civil Aspects of International Child Abduction on April 1.
Japan had been accused by the United States and European countries of being a “safe haven” for international child abductions.
The treaty, which currently has 89 signatories, sets out rules and procedures for the prompt return to the country of habitual residence of children under 16 taken to another country, if requested by the other parent.
The convention will enter into force in a state acceding to it on the first day of the third calendar month after the instrument of accession is deposited with the Dutch Foreign Ministry.
The Diet approved the country’s accession to the treaty in May and enacted a law in June stipulating domestic implementation procedures for the Hague treaty.
Under the legislation, a central authority will be set up in the Foreign Ministry to locate children who have been taken away and encourage the people involved to settle the dispute through consultations.
If the consultations fail, family courts in Tokyo and Osaka will decide on the child’s treatment. The legislation also allows a parent to refuse to return a child if abuse or domestic violence is feared.
The central authority will be staffed with lawyers, experts on domestic violence and child psychology counselors.
At the family courts in Tokyo and Osaka, judges have been trained on the Hague convention. The Foreign Ministry and the family courts plan to open a website to explain about the procedures to settle disputes under the pact.
The government plans to join the international treaty for settling cross-border child custody disputes in April after submitting necessary documents in January to the Dutch Foreign Ministry, which handles matters on the pact, a government source said Tuesday.