http://www.scmp.com/news/asia/article/1463285/activists-say-japan-will-try-bend-rules-child-abduction-convention

Activists say Japan will try to bend rules of child abduction convention

PUBLISHED : Wednesday, 02 April, 2014, 10:53pm

UPDATED : Thursday, 03 April, 2014, 2:35am

Julian Ryall in Tokyo

Japan’s commitment to the Hague Convention on child abduction went into effect this week, but children’s rights activists warn that authorities are already looking for ways to avoid complying with the treaty.

Before Tuesday, Japan was the only G8 nation not to have ratified the Hague Convention on the Civil Aspects of International Child Abduction, which generally stipulates that a child should be returned to his or her country of habitual residence when they have been taken out of that country by a parent without the consent of the other parent.

Pressure had been growing on Tokyo to adopt the legislation as a growing number of international marriages – estimated at 40,000 a year – are also ending in separation and divorce.

Embassies in Tokyo are handling about 400 cases in which the Japanese parent has violated the terms of the convention by taking a child back to Japan, but international authorities have been powerless to act once they get there.

“We have been pressing for this for many years now and we are pleased that it has finally been ratified,” said Brian Thomas, joint founder of the Japanese arm of the US-based Children’s Rights Council.

“But we do have reservations,” he admitted, pointing to cases in Japan in which judges have invariably sided with a Japanese woman who claims she has been hit by a partner.

“The Japanese government keeps making excuses every time any Japanese national claims they have been subjected to domestic violence – and, of course, every lawyer now knows that is a legitimate defence,” said Thomas, who moved to Japan from Britain in 1988, two years after meeting his wife Mikako.

Their son, Graham Hajime, was born in January 1990, but Thomas returned from work one day to find their home locked and empty. He has not been permitted to see his son since April 1993, but carries his photo at all times.

“In this sort of situation, there is a clear need to have an outside expert assess a situation and to make a decision on what is really going on,” he said. “I’m really worried that the Japanese courts and the government here will continue to manipulate the situation in favour of their own nationals.”

Even more upsetting for Thomas is the fact that the legislation is not retroactive and cannot therefore be applied to his own situation.

“This does not help me at all,” he said. “But I will fight on for other parents who are affected by their child being taken away.”

Under the terms of the new law, a central authority has been set up within Japan’s foreign ministry to locate children who have been removed from their place of habitual residence overseas and brought to Japan.

The ministry will make efforts to encourage the parents to settle the dispute voluntarily, but if that fails, family courts in Tokyo and Osaka will institute hearings and issue rulings.

This article appeared in the South China Morning Post print edition as Tokyo adopts child abduction treaty

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Children’s Rights Council of Japan and the case of Walter Benda, co-founder of CRC of Japan, are both discussed in this Christian Science Monitor article.

http://www.csmonitor.com/World/Asia-Pacific/2013/0522/Japan-no-longer-sanctions-child-abduction-in-mixed-marriage-cases

Japan no longer sanctions child abduction in mixed-marriage cases
Tokyo lawmakers unanimously approve Hague convention to settle child custody in broken international marriages. But Japanese domestic laws and legal loopholes still need to change, say scholars.

By Justin McCurry, Correspondent / May 22, 2013

TOKYO
Walter Benda had no inkling of what was to happen after he and his Japanese wife and their two small daughters moved from Minnesota to Tokyo in 1992.

Three years later, Mr. Benda returned home from his job at a trading company one evening to find his wife and children gone. For the next three-and-a half-years he had no idea of their whereabouts. He did not know it then, but his wife had taken their daughters, then aged 6 and 4, effectively ending their 13-year-marriage and Benda’s relationship with his children.

Benda is one of hundreds of foreign spouses of Japanese citizens who — after a marriage breaks down — are denied all access to their children.

But now after years of pressure from “left-behind” parents, human rights activists, and several governments, Japan’s parliament on Wednesday unanimously approved a bill paving the way to join the 1980 Hague convention on international child abductions. That brings Japan in line with 89 other signatories. With the unanimous agreement, Japan is expected to become a signatory by the end of March 2014.

RECOMMENDED: Think you know Japan? Take our quiz to find out.

Under the treaty, children under 16 who are taken away by one parent after a failed marriage must be returned to the country in which they normally live, if action is requested by the other parent. It also protects the access rights of both parents.

“I have never had a scheduled face-to-face meeting with my daughters since they were abducted and have not been able to communicate with them by phone or online,” Benda told the Monitor. “I have mailed them hundreds of letters, cards, and gifts over the years, but have never received a personal reply.”

During his search for his family, Benda received no help from the Japanese police and authorities. He took his case all the way to the Japanese Supreme Court, without success. Unable to find a new sponsor for his visa, he was forced to return empty-handed to the US, where a federal grand jury indicted his wife, in absentia, on charges of international parental abduction.

“Even though US law enforcement authorities have sought the return of my ex-wife to face the international parental kidnapping charge in the US, the Japanese police authorities refuse to cooperate because Japan does not consider parental kidnapping a crime covered under the extradition treaty it has with the US,” he said.

But it may soon.

Good news, but loopholes remain
Legal experts welcomed Wednesday’s decision, but said the treaty would have little effect unless it is accompanied by changes in Japan’s domestic law. Courts in Japan routinely favor the Japanese parent – usually the mother – in custody cases involving international marriages.

“I am concerned that Japan won’t implement the convention at face value,” says Takao Tanase, a law professor at Chuo University in Tokyo. Mr. Tanase points to numerous loopholes in Japanese family law that could be cited to prevent the return of children to their original country of residence, including the suspicion – without any burden of proof – that the child could be exposed to harm or that the mother’s welfare could be affected.

“Japanese law and the convention contradict each other, and this can be used as an excuse not to return the child,” he said. “The tradition of awarding sole custody was introduced 60 years ago, but Japanese society has changed dramatically since then.”

Yuichi Mayama, an upper house politician who has pushed for the legal change, was more optimistic. “This is a meaningful development,” he said. “I’m delighted that Japan is finally catching up with the rest of the world.”

But he added: “The tradition in Japan is to award sole custody, and that’s supported by the law. Unless we change that we won’t be able to use the convention properly. We take a very traditional view of the family in Japan, and changing that is going to take time.”

Japan’s about-turn
The number of foreign parents who are denied access to their children in Japan has increased along with a rise in the number of international marriages to around 40,000, according to Mr. Mayama. Inevitably, the trend has resulted in more divorces: Almost 18,000 Japanese and international couples divorced in 2011, according to government statistics.

The US, which is pursuing at least 100 recognized abduction cases involving its nationals, has worked alongside Canada and the UK in pressuring Japan, the only nonsignatory among the G8 nations, to fall into line. In February prime minister Shinzo Abe told President Obama that Japan was moving toward ratification during their summit in Washington.

Tokyo previously refused to sign the treaty, citing the need to protect Japanese mothers from abusive foreign husbands. Japan’s resistance earned it a reputation as a haven for child abductors, and in 2010 prompted the US House of Representatives to pass a nonbinding resolution condemning the retention of children in Japan “in violation of their human rights and United States and international law.”

The momentum for change grew in 2009 when Christopher Savoie, a US citizen, was arrested in Japan after trying to take back his children as they walked to school. Although Mr. Savoie had been granted full custody by a US court, his ex-wife took their children from their home in Tennessee back to her native Japan.

Savoie’s case and others have been taken up by the Children’s Rights Council Japan [www.crcjapan.com], a nonprofit organization launched in 1996 to offer support and resources to affected parents. The council has submitted a proposal to the Japan’s justice ministry and the US State Department calling for a humanitarian access program that would grant left-behind parents regular and meaningful contact with their children.

In 1998, a private investigator located Benda’s daughters, who are now in their 20s. He has seen them only twice since they were taken and for only brief periods on the street. “But they have always resisted my efforts to communicate and I have been unable to speak with them,” he said.

He agrees with skeptics that Japan’s belated about-turn will do little to help him and countless other foreign parents. “While it does reflect the fact that the Japanese government is finally recognizing that there is a problem, I am doubtful it will have any immediate, noticeable effect on cases such as mine,” he said.

“International pressure must continue until all loving parents who are separated from their children in Japan are able to have direct and meaningful access to them.”

http://www.dw.de/dads-doubt-tokyos-commitment-to-abduction-treaty/a-16647298

Society

Dads doubt Tokyo’s commitment to abduction treaty

Tokyo is inching closer to signing the Hague Convention on the Civil Aspects of International Child Abduction, but foreign parents who have not seen their children for years have little faith the treaty will help them.

In the last 18 years, Walter Benda has only managed to see his two daughters once. That was for a few moments on a street in a Japanese town in 1998 after a private investigator managed to track down the girls and their mother.

His Japanese wife disappeared from their home in Chiba Prefecture, just outside Tokyo, after seeing him off to work one morning and rebuffed all his efforts to make contact with them. And as soon as he did find them again, they vanished once more.

Benda’s case is far from unusual. Critics of the Japanese judicial system accuse it of abetting Japanese nationals who want to leave their foreign spouse abroad and prevent them from staying in touch as the children grow up. And as Japan is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, Japanese courts set the rules on access.

The situation is largely about foreigners living abroad with their Japanese partners who return to Japan, but the issue also affects foreign nationals who marry Japanese and opt to live in Japan. Unsurprisingly, foreign parents have been given short shrift in legal efforts to see their children in Japan. An estimated 20,000 children are born to mixed-nationality couples here every year.

Currently, Washington is dealing with 100 cases of US children being abducted to Japan, 30 cases involve Canadian citizens and British officials admit to dealing with around 10 cases.

Promises from Tokyo

The US is investigating nearly 50 cases of abductions to Japan

When Prime Minister Shinzo Abe met with US President Barack Obama during his recent trip to Washington, the issue came up. The Japanese leader promised that politicians in Tokyo would soon sign the Hague Convention into law, bringing the country into line with 89 other signatory states.

Of the Group of Eight nations, Japan is the only one not to have signed the agreement. But even if Tokyo does sign the pact, foreign parents do not believe that Japanese courts will be even-handed.

“I believe it is quite possible Japan will sign it this year, but I feel it will just be window dressing, as is the case with the United Nations Convention on the Rights of the Child that Japan ratified in its entirety in 1994,” said Benda, the joint founder of the Japan chapter of the US-based Children’s Rights Council (CRC). “That agreement provides for regular, direct contact between children and both parents, but Japan does not honor it.

“I’m not very optimistic. I believe Japan is doing this more for symbolic reasons to satisfy its foreign allies rather than out of sincere concern about children’s rights.”

Benda’s experience with Japan’s appalling track record on child abduction dates back to July 21, 1995.

A normal farewell

“I had no clue that this was going to happen,” he explained. “It was the first day of school vacation, so the children were still at home when I left for work in the morning.

“I remember hugging both my daughters at the front door of our house before I left. When I returned home that evening, I immediately sensed something was wrong when I noticed that the children’s bicycles, which were normally parked in front of the house, were gone, and their shoes, and their mother’s shoes, were all gone.

“As I walked into the house I noticed a lot of the furniture, paintings and appliances were gone as well,” he said. “There was a note from my wife, along with a business card for an attorney, on the dining room table. In the note, my wife asked me to forgive her for leaving me.”

Talking to Japanese friends, however, he felt confident that he would be seeing his children soon and that the system would handle the situation in a similar way as is done in the US.

He was quickly to come face-to-face with the rules of parental abduction in Japan. Even though he remained legally married and shared equal custody of the children, it took Benda three-and-a-half years to even find out where they were living as none of the Japanese authorities would help locate them or provide information about their health or school situations.

He approached the local police, the Tokyo Metropolitan Police, the local city office, the health and welfare ministry, schools and education officials, the US Embassy, INTERPOL and various other organizations set up to assist foreigners in Japan. None were willing or able to help and he was forced to approach authorities in the US to have his children registered as missing and have an international arrest warrant issued against his wife for kidnapping.

No visits with daughters

“I have pursued custody and visitation rights through the Japanese courts twice now, each time appealing my case all the way to the Japanese Supreme Court,” said Benda. “I have never been granted a single scheduled visit with my daughters.”

Foreign fathers are often powerless in finding their children

In the US, the Justice Department has indicted his former wife under the International Parental Kidnapping Act as the girls are US citizens being retained overseas. The Japanese government, however, refuses to recognize the charge and will not take any action on the extradition request.

“I feel very angry and misled by the Japanese legal system,” he explained. “The Japanese Constitution guarantees the husband and wife equal rights in family matters and the Japanese have signed international treaties which guarantee children regular direct access with both parents.

“The reality is, the Japanese courts thumb their noses at these legal obligations.”

At the root of the problem, CRC of Japan believes, is that Japanese judges do not have very strong enforcement authority in family law cases. That means that even if the abducting parent is ordered by the court to ensure the other biological parent has access to the child, the court is essentially powerless if that arrangement is not adhered to. In other jurisdictions, if a parent is ordered to allow visitation and refuses to do so, that person can be charged with contempt of court and be imprisoned.

Pressure on Japan

CRC believes it is only the cumulative effect of international publicity and increased public awareness that have led the US and other foreign governments to put pressure on Japan.

In many ways, CRC Japan co-founder Brian Thomas admits, he and Benda are relatively lucky as they have at least sufficient financial resources to contest the legal cases through the courts and devote time to supporting other parents in similar situations. The majority of international marriages in Japan are between Japanese men and foreign women from other Asian nations. When those relationships hit the rocks, the women have fewer resources to fight for their right to see their children.

Parental abduction not only affects international marriages. Because there is no equivalent organization to fight for the rights of parents, CRC of Japan has several cases on its books of Japanese couples seeking access to their children as well.

Thomas moved to Japan from South Wales in 1988, two years after meeting his wife Mikako. Their son, Graham Hajime, was born in January 1990, but Thomas has not been permitted to see him since April 1993. He carries his son’s photo with him at all times.

And he is not optimistic that Japan signing the agreement will bring about meaningful change for him or other parents in his predicament.

“I hope that Japan can change for the better, for the sake of its own people, and I would like to be optimistic,” he said. “But history does not lend itself to optimism when dealing with Japanese matters of this nature.”

DW.DE