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

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

CRC of Japan co-founders featured in Deutsche Welle article

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

Earlier article about Japanese child abduction problem

This article was published a few years ago and mentions the cases of two board members of Children’s Rights Council of Japan, David Brian Thomas (who is also co-founder of CRC of Japan) and Michael Gulbraa.

http://www.davidappleyard.com/japan/jp21.htm

Foreigners find divorce means sayonara to kids
— Their Japanese spouses split and courts laugh in their face

By DOUG STRUCK and SACHIKO SAKAMAKI

(This article was first published in the Washington Post, and later in the Japan Times)

It was quiet in the house when Sean Reedy got home after giving exams all day at the university. Too quiet. No cry of “Poppy!” from little Louie, 8, followed by the usual demands of Bunta, 6, and Yuzo, 5, to kick the soccer ball around before dinner.

And too neat, he recalled. The house on that Saturday 18 months ago was immaculate. As though it had been straightened in a final, departing gesture.

He looked quickly in closets. Clothes were gone. Louie’s school backpack — gone. Passports — gone, too.

His Japanese wife took his sons into hiding that day, preempting custody of the boys by simple possession. She could do so confident that the customs and laws of Japan would help her keep the children from their father.

It stunned Reedy, 44, a linguistics professor who had been in Japan for 16 years. Foreign spouses here frequently lose their children when their marriages collapse. There is no shared custody in Japanese divorces, and visitation rights are minimal and unenforceable. The wife gets the children in an estimated 80 percent to 90 percent of the cases, according to divorce lawyers, and fathers are expected to drop out of sight.

Although his marriage was not going well, Reedy said, he had no inkling that his children might be taken from him. The school system refused to tell him where they had been transferred, although there was no allegation of abuse. Through her attorney, his wife has let him see his sons three times in 18 months, but he still does not know where they live and cannot contact them. She sued for divorce, and he demanded frequent visitation rights.

“In court, when I said I wanted to see my kids every weekend, they laughed at me,” Reedy said.

Family experts say divorce carries a stigma, so  former spouses avoid seeing each other. The workaholic hallmark of post-war Japan resulted in a clear division of responsibility, they say, in which husbands belong to their job and children belong to their mothers. Mothers take total responsibility for the children — they’re blamed, for instance, if their children get bad marks in school — and are expected to retain that role after divorce.

In addition, some experts argue, children’s loyalties are less divided if the father is not around.

It is rare for Japanese fathers, or mothers,  to fight that tradition. When one parent in a failed marriage is a Westerner who wants continued contact with the children, however, there is little legal help. If a Japanese parent whisks the kids away, as Reedy’s wife did, there is no legal remedy. It is not treated as a crime.

Even if children are taken away from a parent abroad who has legal custody and are brought here, Japan is a haven from international law.

Japan is one of the few developed countries that has refused to sign the 1980 Hague Convention promising to return abducted children to the rightful custody of an overseas parent. So a Japanese parent is not prosecuted for bringing children into the country in violation of a foreign court’s custody order. Japan ranks second, behind Mexico, in the frequency of parental abduction cases handled by the U.S. State Department, a spokeswoman said.

Even as a tenured professor and taxpayer, Reedy found he could get no assistance from the Japanese courts in getting his children back — or even seeing them regularly.

“It’s a big problem, especially for foreign men,” said Kensuke Onuki, a lawyer here who handles international divorces. “The situation is totally different from the United States. There are hardly any cases where my clients are able to see their children.”

And it is a growing problem, as international marriages increase in Japan and the stigma of divorce declines. In 2001, the Health Ministry recorded nearly 40,000 marriages between a Japanese and a foreigner, more than triple the number in 1980. It also counted more than 13,000 divorces of mixed-nationality couples, nearly double that of a decade ago.

Das Pradip gets to meet with his children once a month, for 30 minutes, at a Roy Rogers restaurant
— when his ex-wife bothers to bring them.

She left her husband three years ago with the children, then 5 and 8, for a Japanese man. Pradip refuses to go home to India because he knows he would lose all contact with his children. Instead, he toils at a Tokyo short-order grill, flipping hamburgers and serving french fries.

“As long as I am alive, I will not give up my children,” he said. “I went outside their school and stood outside just to see them walking with their friends. I can’t even say hello to them. It’s so painful.” He asked to dine with them on Father’s Day, but the court said it was “not Japanese culture,” Pradip said. His ex-wife and her attorney declined to be interviewed.

In cases examined for this article, available court papers and interviews with attorneys revealed no finding of physical abuse, and the other spouses or their attorneys declined requests to respond to questions.

David Brian Thomas said he has not seen his son since his Japanese wife and her parents locked him out of their house in 1992. The divorce was overturned by the court on grounds that his wife doctored papers and forged his seal, but Thomas has been unable to see his son, Graham Hajime, who is now 13.

“The court says yes, I have rights to see my son,” Thomas said. “But there’s no method in Japan of enforcement. Technically, I have won, but I have lost. The laws are stacked against foreigners.

“I really love my son. That’s why I’ve tolerated this for so long,” said Thomas, 58, a native of Wales who teaches English in private schools here. “Why don’t I just go away and remarry and live my life? Because I have a son. How would I feel if my father ran away from me? There will come a time when he will ask, ‘Where is my father?’ and I want to be here.”

The first obstacle for foreigners is the recent custom in Japanese divorces for the wife to get the children. Prime Minister Junichiro Koizumi was unusual when, in separating from his wife in 1982, he took custody of his two sons. More typical was the wall of silence that has remained since: His ex-wife has not seen their two children, now 22 and 24, since their divorce, and Koizumi has not spoken to his third son, now 20, who was born after the marriage dissolved.

Visitation rights aren’t part of a court’s divorce order. If the issue is raised, a family court will try to persuade parents to agree voluntarily, but there is no enforcement. Even foreign visitation or custody orders have no standing in Japan.

“I don’t want him to see my daughter,” said a 35-year-old Japanese woman who is violating a U.S. court order granting visitation rights each summer and winter to her American ex-husband. She won custody of her daughter, now 7, in U.S. courts and shuttled between countries to allow him visitation until they had a confrontation two years ago. He is suing to have the court order enforced. But she said she feels protected in Japan, which would not act even if she lost.

Salt Lake City lawyerMichael Gulbraa, 39, has a Utah court order for custody of his two sons, 12 and 13. But his Japanese ex-wife took them to Japan in 2001. Japanese police know where they are, he said, but won’t arrest them.

“They are wanted by the FBI and Interpol, but the (police) say abduction by a parent is not a crime in Japan,” he said in a telephone interview. “I just want my children back.”

Japan does not ratify the Hague Convention because it would have to return such children to foreign spouses, said Toshiyuki Kono, a law professor at Kyushu University. “Politically, there is no strong incentive here to do that,” he said. A spokesman for the treaty division of the Foreign Ministry said the Hague Convention has not been ratified because “we’ve been studying it.”

Japan’s stance that parental abduction is not a crime can change when a foreigner is the abductor. Engle Nieman, 46, was arrested at the Osaka port and spent four months in jail for trying to go home to the Netherlands with his 1-year-old daughter after his wife moved in with her parents.

He was arrested under an old law against trafficking of girls for prostitution. He was prosecuted, but the ex-wife flouts the law, he complained.

“My wife is now hiding somewhere with my daughter. She doesn’t show up for court. My lawyer doesn’t know what to do,” he said. “On schooldays, I go around to the various kindergartens in Tokyo to see if I can find them. It’s terrible.”

Reedy said he was told to forget his three sons and go home to the U.S. Distraught and depressed, he has taken medical leave from his job and returned to California for what he said will be a temporary stay.

“People in the West don’t understand,” lamented Reedy. In Japan, “it has nothing to do with whether the kids would benefit by being with another parent. Once there is a divorce, the line is cut. That’s it.”