https://www.japantimes.co.jp/community/2018/06/03/issues/left-behind-dads-last-resort-impeach-japans-supreme-court-judges/#.WxgZhy-ZNsM

 

Left-behind dad’s last resort: Impeach Japan’s Supreme Court judges

BY COLIN P.A. JONES
JUN 3, 2018

James Cook is relentless.

His four children were abducted to Japan from Minnesota by his Japanese wife in 2014. This was after Japan acceded to the Hague Convention on the Civil Aspects of International Child Abduction, so he might have had hope in the early days.

Using the baroque procedural regime the Diet passed for the sole purpose of implementing the Convention, he sought a return order for his children in the Osaka Family Court. The court granted a return order, but only for the younger two — twins, both 7 at the time — not the older pair, who were 12 (and also twins). In doing so, the judge demonstrated what many of us in this area already know: that family court judges — even those tasked to a Hague court — don’t have a [bad word]-ing clue about children or what is good for them. Basic family law common sense says you don’t separate siblings, particularly when they have already been deprived of one parent.

Maybe the judge was deliberately trying to foist this case on a higher court. In any case, cutting the babies in half didn’t work and both Cook and his estranged wife appealed.

To its credit, the Osaka High Court then issued a return order for all four children (golf clap). Then came the efforts to enforce this order. These can be frustrated by a “taking parent” (as they are known in Hague parlance) simply not cooperating.

This is because the rules around enforcement of such orders are literally designed to ensure they will only work if the taking parent and the children involved play along. Sometimes they do and it is succcessful, but in this case it did not. The only sanctions for not cooperating are financial, and collecting those is similarly problematic. Last month the U.S. State Department cited lack of enforceability as a factor in describing Japan as showing a “pattern of noncompliance” just four years after it signed the convention.

It also probably didn’t help that the process is also allowed to facilitate alienation of the left-behind parent by the taking parent. Cook had virtually no contact with his children during this time, which of course makes it easier to get kids to say they want to stay in Japan to authority figures when necessary.

Cook’s wife appealed the high court ruling to the Supreme Court but lost. From there, you might imagine it would be just a matter of pursuing the enforcement process persistently enough until it paid off — maybe.

One more bite of the apple

However, Japan’s Hague implementing statute includes a procedure for moving for a new hearing, even after appeals are exhausted. This is odd, since the point of the convention is to get children back expeditiously, not give the taking parents as many bites at the apple as possible.

Cook’s wife petitioned the Osaka High Court to reconsider the return order, essentially arguing that he had been rendered insolvent by the long legal struggle she had triggered and was not capable of looking after the children in the U.S. The court bought it and rescinded the return order — conveniently ignoring that (according to his impeachment petition) she also owed him close to $100,000 in fines for noncompliance with earlier enforcement orders. Cook appealed to the Supreme Court and lost, thereby establishing a nice road map for future abductors.

I had thought this meant “game over” for Cook, as it sadly does for so many other parents, Japanese and foreign alike, who lose contact with their children in Japan through the nonfeasance or even abetment of the nation’s courts, Hague Convention notwithstanding. But did I mention Cook is relentless?

In April of this year he filed a petition with the Judge Impeachment Committee of the Diet — against the five Supreme Court judges who upheld the Osaka High Court’s Mulligan.

Windmills may also be involved, but the quixotic quest for justice by people who could do other things with their time is where a lot of important law comes from. The judges will never actually be impeached, for reasons I will get to, but power to Cook for hammering at every crack as hard as he can.

Obscure, barely used process

Judicial impeachment is a U.S.-style separation-of-powers check-and-balance that was incorporated in Japan’s Constitution. Article 64 of said Constitution requires the Diet to set up an impeachment court for the removal of judges, and Article 78 protects judges from removal other than by impeachment or for reasons of mental or physical incapacity.

Impeachment is a two-stage process. First there is a Judge Impeachment Committee comprised of members of both houses of the Diet that reviews petitions for impeachment in nonpublic proceedings. Those it deems worthy are referred to the Judge Impeachment Court, which is also comprised of members of both chambers.

Not a lot of petitions are considered worthy of referral to the court. From 1948 through the end of 2017, the committee had received petitions complaining about 19,814 judges (the actual number of petitions is much, much larger, since the committee statistics treat multiple complaints about a particular judge as a single incident). Of these, most were filed by regular citizens, a much smaller number by lawyers and others. The majority cited “wrong decisions” as the grounds for the petition. Of course, impeaching judges for rendering a decision one party doesn’t like would see all of them out of a job. Unsurprisingly, most petitions don’t go anywhere, but still, in 70 years the commission has referred only nine judges to the court for trial and “suspended” prosecution of seven others.

The summaries of cases of suspended impeachment on the committee’s website are revealing. Examples of judicial behavior deemed egregious but still worthy of mercy include: switching judgments already rendered in order to hide a mistake (1953); failing to shush a group of defendants calling for a moment of silence to commemorate the death of Stalin (1954); appearing to have agreed with police and a mayor, over drinks, to fix a bribery case against the mayor (1954); and churlishly allowing a “private letter” from a senior judge not involved in a constitutional case recommending how the case should be decided (1965 — the senior judge never got even a suspended impeachment, of course).

Supremely suspicious math

So what about the nine cases referred to impeachment? First there are two from 1948, both involving judges caught dealing in the black market. Possibly because everyone needed to do that to survive the deprivation of the postwar period, both were acquitted.

The remaining seven cases all saw the offending judges losing their jobs, for the following transgressions: doling out blank signed warrants; being entertained by a party to a case; pretending to be a top prosecutor in order to call the prime minister and providing a tape of the resulting conversation to the press; accepting gifts from a lawyer; using child prostitutes; stalking a female court employee; and using a cell phone to take pictures up a woman’s skirt on a train. Two other judges were also recently busted for similar behavior, but since they were on secondment to the Ministry of Justice and technically prosecutors at the time (separation of powers!), they could not be impeached but lost their jobs through other procedures.

The Judge Impeachment Act enables the Supreme Court to file a petition for impeachment if it discovers a judge behaving badly. This may seem perfectly reasonable, but the fact that the number of times the Supreme Court has done this (eight) is almost identical to the number of impeachments that have occurred is interesting. The records of impeachment trial available on the impeachment court websites do not show who brought the complaints resulting in referrals or impeachment. Yet it would arguably be bad for the system if it turned out the Supreme Court bringing a complaint determined whether impeachment actually happened.

Unfortunately, it is easy to imagine that being the easy path for the Diet member “judges” on the impeachment court: “Hey, if the Supreme Court wants to impeach him, he must be guilty.” After all, the same logic seems to apply in criminal cases: “Prosecutors wouldn’t be prosecuting him if he wasn’t guilty” — 99.9 percent conviction rate, anyone?

The Supreme Court bureaucracy already has numerous tools for sanctioning naughty judges. These include administrative tools such as formal cautions, postings to isolated branch or family courts, or simply not recommending them for reappointment at the end of the constitutional 10-year term all but those on the Supreme Court serve. Above this there is an entire internal trial system that can be used to discipline misbehaving judges or even remove them if they are found mentally or physically unfit.

That the impeachment court might simply be functioning as a top-level disciplinary tool does not say much for separation of powers. Nor, of course, does the fact that while the impeachment commission members may be Diet members, its administrative functions are performed in part by judges on secondment from the judicial court system.

So anyway, this is why the likelihood of Cook’s petition to impeach five judges at the very top of this system has zero chance of success. But at least it was accepted. Although the Judge Impeachment Act says “any person” can file a petition, the impeachment committee website says one from a foreign national will first be reviewed and, if it has merit, submitted by the committee on its own authority.

Such pointless discrimination clothed in technicality is perhaps just another indicator of why expectations about the Hague Convention should continue to be set low.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone.

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http://the-japan-news.com/news/article/0004447319

Japan on U.S. list of nations noncompliant with Hague Treaty

 

Jiji PressWASHINGTON (Jiji Press) — The U.S. State Department on Wednesday listed Japan as one of countries showing a pattern of noncompliance with the so-called Hague Treaty that sets procedures to settle cross-border parental child abduction cases.

Japan joined the Convention on the Civil Aspects of International Child Abduction in 2014, and it is the first time since then that the nation has been put on the list in the department’s annual report on the issue of children taken by one parent following the breakup of international marriages.

The listing may help put greater pressure on Japan to comply with the treaty, pundits said.

The 2018 report said Japan has made “measurable progress” on international parental child abduction, noting that the average number of children reported abducted to the country each year has decreased by 44 percent since 2014.

While noting that “a strong and productive relationship” between the Japanese and U.S. governments has facilitated the resolution of abduction cases, the report said that “there were no effective means” to enforce court return orders.

As a result, 22 percent of requests for the return of abducted children under the treaty remained unresolved for more than one year, the report said, adding the enforcement process is “extremely long.”

A total of 12 countries, also including China, India, Brazil and Argentina, were on the 2018 list of countries showing a pattern of noncompliance.

“Now is an opportunity for the government of Japan to demonstrate a true commitment to reforming its inability to enforce its own judicial rulings,” said Jeffery Morehouse, who is seeking to gain custody of his son in Japan.

Paul Toland, who hopes to reunite with his daughter in Japan, said, “Japan will need a complete reform of their family law system and will have to change the way they view the rights of a child to know and love both parents after a divorce if they ever want to be compliant with the Hague [treaty].”

https://www.usatoday.com/story/news/2018/04/11/lawmaker-u-s-needs-pressure-japan-comply-international-child-abduction-laws/508880002/

Lawmaker: U.S. needs to pressure Japan to comply with international child abduction laws

Japan remains a haven for parental child abductions and a U.S. lawmaker Wednesday urged the Trump administration to do more to pressure the country to fulfill its obligations under international law.

Rep. Chris Smith, R-N.J., said during congressional testimony that between 300 and 400 children of international marriages have been abducted from the U.S. to Japan since 1994, and that more than 35 are still awaiting reunification with their American parents.

“Every day these children are separated from their U.S. parent, the damage compounds,” Smith said before a Congressional subcommittee on global human rights. “We must do better. We must not leave any child behind.”

Under international pressure, in 2014 Japan signed The Hague Convention on International Child Abduction. The treaty requires the government to set up a process to allow foreign parents to appeal for visitation or return of their children. But Japan has been slack in administering the convention, according to Smith.

 “How many of these children have come home four years later?” asked Smith. “How many even have access to their left behind parent now?  Almost zero.”

James Cook, a Minnesota medical device specialist trying to gain custody of his four minor children from his estranged Japanese wife, also testified before Congress.

In July 2014, his Japanese wife Hitomi Arimitsu took their children to Japan to visit her family and refused to return. Cook submitted an application for return under the Hague treaty and the case has made its way through both the Japanese and American court system, but Cook has still not been able to see his children.

A Minnesota court ordered the return of Cook’s children in 2017, but the ruling wasn’t carried out in Japan.

A key issue is that Japan does not have a way of enforcing its Hague commitments. It requires the abducting parent to voluntarily turn the children over and doesn’t allow the use of force in extracting the children. There have been numerous cases of parents simply refusing to comply with the Hague rulings.

Cook’s wife petitioned a Japanese court against the ruling to return the children and it was overturned, a decision which Japan’s Supreme Court upheld in December 2017.

“[My wife] has achieved the perfect consequence-free abduction with the aid of Japan’s systemic non-compliance and [the US Department of State’s] inaction,” Cook said in his testimony.

“After over 2.5 years in this process, I have nothing,” he said. “This process has cost me everything.”

Attention to the issue within Japan has been growing in recent weeks. Last month, all EU Ambassadors to Japan signed an official letter of diplomatic protest to pressure Japan to follow international law and enforce decisions which give an international parent custody or visitation rights.

Also in March, Japan’s Supreme Court ruled that a Japanese mother who is refusing to return her child to their father in the United States is “illegally restraining” the child under the Hague Convention.

It was the first such ruling by a Japanese court.

The court ruling and international pressure are a cause for optimism, according to John Gomez, an American who is chairman of the Kizuna Child-Parent Reunion group in Japan.

Gomez said that barriers remain, including an underlying “continuity principle” in Japanese courts means that the abducted child stays with the abducting parent.

“Until the ‘continuity principle’ by which judges in Japan issue rulings is actually discarded and kidnapped children are returned, we must keep pushing to the utmost for the children to be returned to their loving parents,” said Gomez.

Rep. Smith said in his testimony that the State Department needs to apply more pressure on Japan and other countries that have refused to cooperate in returning abducted children. A 2014 law that Smith sponsored, the Goldman Act, requires the State Department to develop an agreement with Japan about children that had been abducted and to hold Japan accountable.

However, Smith said that no action has been taken against Japan for past or current cases, and the State Department hasn’t even listed Japan as “non-compliant” in its annual report on the Hague convention.

“We hope that the State Department will do its job and implement the Goldman Act,” Smith said. “We hope that the Trump Administration will be different than the last.”

https://www.japantimes.co.jp/community/2018/04/01/issues/japans-supreme-court-orders-child-sent-home-hague-parental-abduction-case-maybe/#.WsT-kS-ZPR0

 

Japan’s Supreme Court orders a child be sent home in a Hague parental abduction case. Maybe.

BY COLIN P.A. JONES
 APR 1, 2018

On March 15, Japan’s Supreme Court issued an important decision in a case arising under the Hague Convention on child abduction. Except it wasn’t about the convention, but about habeas corpus. Most press accounts have characterized the ruling as ordering that a child brought to Japan by his mother be returned to the United States, but it’s a bit more complicated.

A pitfall of comparative law is the ease with which familiar-sounding terminology can mislead. “Habeas corpus” is a prime example.

Latin for “produce the body,” habeas corpus is a centuries-old judicial procedure that in the Anglo-American system formed the bedrock of human rights law before the concept of human rights existed. A person subjected to arbitrary, unlawful detention could petition a court to issue a writ of habeas corpus. If the writ was issued, the detainer had to bring the detainee to court and explain the grounds for detention. If the detention was found to be unlawful, the detainee was immediately set free.

In England, habeas corpus led to a number of famous court decisions, such as the 1670 judgment establishing that jurors cannot be punished for their verdict, or the one in a 1772 that said nobody on English soil could be a slave. In the United States, habeas corpus was one of the few provisions about human rights contained in the U.S. Constitution before the Bill of Rights was added. In 2008 it was used to challenge the prolonged detentions without trial of terrorist suspects by the U.S. military at Guantanamo Bay.

Whittling down habeas corpus

Japan also has habeas corpus. Its Habeas Corpus Act was passed in 1948, specifically to give life to the ideals of the freshly minted Japanese Constitution by providing rapid and easy judicial relief for unlawful deprivations of liberty. Depressingly, the legislative history of the act reveals complaints about the old system — police using pretexts to detain suspects for long periods of time, coerced confessions, judges not protecting people’s liberty and so forth — that are similar to those made about the Japanese criminal justice system today.

The Supreme Court immediately used its power to create procedural rules to neuter habeas corpus. One rule it made required courts to reject petitions if there were “any other adequate means whereby relief may be obtained,” unless “it is evident that relief cannot be obtained within reasonable time.” With this, “rapid and easy” relief were excised from the law.

At the time, Japan’s entire code of criminal procedure was also revised to make it consistent with the numerous new constitutional guarantees of personal liberty and procedural justice. So perhaps the court’s thinking was that the procedural protections of the code would make habeas corpus unnecessary in most cases.

Yet seven decades later, the former head of school operator Moritomo Gakuen, Yasunori Kagoike, and his wife have been detained incommunicado for eight months without being put on trial. Ostensibly charged with fraudulently receiving public subsidies, their judicial renditioning is believed by some to be a way to prevent him from disclosing any embarrassing information about dealings with Prime Minister Shinzo Abe and his wife. By now, Japanese judges would have approved his prolonged detention multiple times. The Kagoikes’ treatment is not unusual, but habeas corpus is noticeably absent from discussions about him or any of the numerous famous so-called enzai cases — those where suspects were convicted and imprisoned for crimes based on questionable evidence or coerced confessions.

So, it is technically correct to say Japan has habeas corpus. It is also correct to describe the text of the law as providing prompt judicial remedies for unlawful detentions. In fact, habeas corpus offers a wonderful example of how you can state two factually accurate things about the Japanese legal system and still completely mislead your audience.

Old remedy gets second life

The Supreme Court also changed the law through a rule requiring detentions to be “conspicuously unlawful” in order to be eligible for habeas corpus relief. This was significant: “Minor” abuses by police or procedural violations by prosecutors or other judges would not be subjected to scrutiny through a habeas corpus hearing, because the petitions would be rejected for lack of conspicuousness.

It also meant that in the rare case that a petition was granted, the hearing held as a result would be meaningless. Why? Because by granting the petition, the court had already decided the detention was conspicuously unlawful — no bothersome arguing of facts and law in a courtroom for us, please!

The Supreme Court rules created numerous escape hatches for judges to allow even serious deprivations of freedom to continue. Under the rules, a court can grant a remedy other than immediate freedom — for a conspicuously unlawful detention! Another rule says that a petition cannot be brought over the objection of a detainee’s freely expressed objections.

Habeas corpus never became the tool for protecting the Japanese people from the state as originally intended. Instead, for several decades it took on an odd second life as an occasional player in custody battles, becoming the means by which estranged parents sought to recover detained children. Courts used habeas corpus proceedings to decide which parent was “better” and should thus raise the children while their divorce was sorted out.

In a 1993 ruling, however, the Supreme Court decided that even in this narrow context habeas corpus was being overused, and henceforth most disputes of this type should be resolved through the less adversarial proceedings of Japan’s family courts, whose specialized personnel had more suitable expertise. This may have had some logic, but if left parents of abducted children with no real remedies, since family court orders involving children — whether about visitation or transferring them from one parent to another — generally have limited enforceability. Habeas corpus had the advantage that failing to bring the detainee (i.e., the child) to court as ordered subjected the detaining person (parent) to the possibility of criminal penalties.

Since 1993, habeas corpus has served as a remedy that might be available after all others at family court have been exhausted. It certainly has not been a “rapid and easy” remedy, since the “conspicuously unlawful” threshold in the Supreme Court was satisfied only after a recalcitrant parent had steadfastly and repeatedly refused to comply with previous court orders. And an order to bring the child to the court meant that whatever hearing the court was supposed to hold was meaningless, since the fact that it was being held meant the result was a foregone conclusion.

‘Conspicuously unlawful’ case

Last month’s Supreme Court ruling concerned a dispute between a Japanese mother and father living in the U.S. Their marriage failing, the mother unilaterally brought the child back to Japan in January 2016. In July of that year, the father sought a return order from the Tokyo Family Court, which was granted in September.

The mother refused to comply, so civil enforcement under Japan’s Hague Convention implementation act was attempted in May 2017. This involved court enforcement officers going to the mother’s residence and seeking to take custody of the child.

The mother continued her resistance, and the enforcement officer had to forcibly enter through the second-floor window and … tried to convince her and the child to cooperate. The mother obstinately clung to the child under a blanket. The enforcement officer gave up and the effort was deemed unsuccessful. This is as far as civil enforcement will get you in a child custody case in Japan.

Finally we get to habeas corpus: A petition to bring the child to court was filed with the Kanazawa Branch of the Nagoya High Court. The court appeared to have done all the things Japanese courts did before the nation joined the Hague Convention — finding conveniently that the child was happy in Japan despite having been born in and spent the first decade of his life in the U.S., and that he didn’t like his dad. Since the child was freely expressing his objections to the petition and given his age and the circumstances, his “detention” by Mom wasn’t deemed to be conspicuously unlawful. Petition denied.

To its credit, not only did the Supreme Court find the lower court in error, it even acknowledged the possibility that children unilaterally deprived of contact with one parent might express views unduly influenced by the other, abducting parent. It questioned whether the child was freely expressing his will, and further noted that in international cases such as these, children face the added burdens of dealing with different cultures and languages and, if they are dual nationals, possibly ultimately a choice in nationality. The court also made a clear ruling that absent special circumstances, failure to comply with a return order under the Hague Convention should be considered “conspicuously unlawful” for the purposes of granting habeas corpus relief.

All good stuff, but the end result was to remand the case back to the lower court so that it could procure the child’s presence in the courtroom and consider the matter further. Given that 18 months has passed since the child’s return was ordered, you have to wonder if that court appearance will actually happen.

Moreover, given that as far back as 2003 the Supreme Court upheld the conviction for international kidnapping of a foreign father trying to remove his child from Japan, it seems odd that it has taken the court so long to conclude that abductions going the other way might be “conspicuously unlawful.”

Habeas corpus could have been used to remedy child abductions to Japan long before the nation signed the Hague Convention. The real problem has always been the judiciary’s lack of willingness to take action. Perhaps this decision is a harbinger of long-overdue change.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone.

Send your comments and Community story ideas to: community@japantimes.co.jp

https://www.japantimes.co.jp/news/2018/03/15/national/crime-legal/supreme-court-breaks-new-ground-ruling-favor-u-s-based-japanese-father-international-custody-battle/#.Wq2LdGaZNsN

Supreme Court breaks new ground, ruling in favor of U.S.-based Japanese father in international custody battle

BY TOMOHIRO OSAKI

STAFF WRITER

The Supreme Court ruled on Thursday in favor of a U.S.-based Japanese father seeking to reunite with his teenage son, who was taken by his estranged wife to Japan in 2016, concluding that the wife’s dogged refusal to abide by an earlier court order mandating the minor’s repatriation amounts to her “illegally confining” him.

The ruling is believed to be the first by the Supreme Court on cases where return orders by courts have been refused. It is likely to send a strong message regarding domestic legislation that is often slammed as impotent on cross-border child abductions, despite Japan’s commitments under the Hague Convention, following mounting criticism that return orders issued by courts have been ignored.

The Supreme Court sent the case back to the Nagoya High Court.

This latest case involved a formerly U.S.-based Japanese couple whose marital relationship began to deteriorate in 2008. According to the ruling, the wife unilaterally took away one of her children, then aged 11, in January 2016 and brought him to Japan where the two have since lived together.

Upon a complaint by the husband, a Tokyo court issued in September the same year a “return order” for the child under the Hague Convention, but the wife didn’t comply. When a court-appointed officer intervened to recover the child the following year the wife “refused to unlock the door,” prompting the officer to enter her residence via a second-story window, the ruling said. The mother then put up a fierce fight to retain the child, who also articulated his wish to stay in Japan.

On Thursday the top court overturned a Nagoya High Court ruling that acknowledged the child’s desire to stay in Japan. The latest ruling judged the minor was “in a difficult position to make a multifaceted, objective judgment about whether to remain under control of his mother,” citing his “heavy reliance” on her and the “undue psychological influence” she was likely exerting upon him in his life in Japan. The apparent lack of his free will, the ruling said, meant the mother’s attempt to keep the child equated to detention.

“It’s very common for taking parents to alienate the child against their left-behind parents,” said John Gomez, chairman of nongovernmental organization Kizuna Child-Parent Reunion, noting the lower court ruling ignored “the undue psychological influence, the alienation, by the taking parent against the other parent.”

“Previously, when the children give their opinion, ‘Oh I don’t want to return,’ the enforcement process would stop … But this ruling recognizes we shouldn’t only listen to the words themselves, but we should consider the context that they’ve been influenced,” Gomez continued. “It’s a very critical development.”

Japan belatedly signed the Hague Convention in January 2014, signaling a step toward overcoming its longtime notoriety as a “safe haven” for parents who abduct their children from other countries. But questions have long remained over the effectiveness of its domestic legislation tied to the treaty.

Since the pact entered into force in April the same year, there have been six cases where return orders resulted in bailiffs being dispatched to achieve the handover of children, but none were ultimately successful, according to the Foreign Ministry.

Under the law, a fine is first imposed on parents who refuse to comply with a court order to repatriate their children.

Should the parents still refuse to relinquish their control of the children, court-appointed enforcement officers will be dispatched to confront them. The bailiffs, who are tasked with convincing the parents with custody to hand over the children, are authorized to enter and search their premises as well as physically restrain them. But the law also stipulates that the officers are prohibited from exerting any physical force on the children themselves, compromising their ability to ensure the children’s return.

“So if it’s a case where a child is willing to leave but a parent is refusing to let go of the child, an enforcement officer can resort to physical force to restrain the parent. But if it’s the child who is protesting by clinging on to the parent, for example, the officer cannot do the same,” a Foreign Ministry official said.

In its 2017 Annual Report on International Parental Child Abduction, the U.S. government expressed concern over Japan’s “ability to quickly and consistently enforce return orders.”

While courts in Japan have ordered returns under the Convention, the Japanese authorities “were not regularly able to enforce these orders,” the report said, citing one particular case that remained pending for more than 12 months in which law enforcement failed to enforce the return order.

http://www.japantimes.co.jp/community/2017/05/01/issues/three-years-japan-signed-hague-parents-abduct-still-win/#.WQkWUBiZPVo

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Three years after Japan signed Hague, parents who abduct still win

BY 

SPECIAL TO THE JAPAN TIMES

As he sat waiting in a van near his estranged wife’s family home in Nara, where his four children were living, James Cook felt very alone. It was an emotion he’d become all too accustomed to in the years since his wife had taken the children on a holiday to Japan and never returned, leaving him the sole inhabitant of their former family home in Minnesota.

“I was alone in our family’s home,” Cook says. “Alone with our children’s rooms just as they left them on July 13, 2014. My location was different, but the feelings of being all alone were the same.”

Meanwhile, at the his wife’s family home just across the road, the most important thing in Cook’s life — whether or not he would be reunited with his children — was being determined in his absence. It was Sept. 13, 2016, and after years of seemingly endless court motions, filings, petitions, decisions and appeals in both the U.S. and Japan, finally, in theory at least, he would have his children — two pairs of twins, now aged 9 and 14 — returned to him.

Through the Hague Convention on International Child Abduction, Cook had successfully petitioned to have his children returned to their home in the United States and a “return order” had been issued by the Osaka High Court. However, the children’s mother, whose name is being withheld out of consideration for the children, was still refusing to hand the children over, so the case had moved to the final “direct enforcement” phase.

The day before, Cook and his mother, who had come with him to Japan to help with the children, met with officials from the Japanese Central Authority (JCA), the Foreign Ministry agency responsible for handling Hague-related matters, at Nara District Court to formulate a strategy to ensure the handover of the children.

“Maps of streets and the neighborhood with locations of each group were displayed on the large conference table in the NDC conference room,” Cook recalls. “It looked very well planned and gave me a sense of hope that we might be successful.”

Cook and his mother departed their hotel in Osaka before dawn to make the 5:25 a.m. train that would take them, accompanied by their lawyers, to Gakuen-mae Station in Nara.

At a rendezvous point, Cook’s party met with JCA officials, got into a van and waited for instructions. Shortly after, a call came through to Cook’s attorney that Nara court enforcement officers had approached the house and confirmed that Cook’s wife and the four children were present. At 6:55 a.m. they entered the building.

While Cook and his mother waited in the van, a total of 17 people were now present at the Cook’s wife property just down the street: Cook’s wife, the four children, their Japanese grandparents, two police officers, Cook’s two attorneys, a JCA official, two JCA-appointed psychologists, a Nara court bailiff and two officials from the U.S. consulate in Osaka.

At around 8 a.m., Cook’s attorney delivered the news that the children were very upset and did not want to see him, although later they did agree to see Cook’s mother. Cook was left alone in the van with his thoughts.

At 10 a.m., Cook’s mother returned looking “very traumatized,” but he still believed that finally, his turn to see the children must have arrived. “My emotions were welling up and I was putting on my emotional armor in preparation. As I looked up to find my way out of the van, I was stopped by a sad look on my attorney’s face. She told me our children still refused to see me and that NDC officers had called off enforcement already. I was a block away for three hours from my children, waiting for my turn. I was in shock and just sat in my seat.”

Shackled by legal limits

Three years have passed since Japan became a signatory to the Hague Convention, which is designed to ensure the timely return of children to their country of residence after abduction by one parent to another member country.

The Foreign Ministry’s Hague Convention Division is quick to point out that of the requests to repatriate children from Japan made in the first two years after signing the convention, about 90 percent have been resolved. But the details of how these cases were “resolved” are less clear, as judgments are not published and the ministry will not comment on specific cases.

According to the ministry, of the 68 requests to return children to a foreign country under the convention in the past three years, 18 have resulted in returns. Twelve more requests were “dismissed,” 19 have been “settled not to return the child to a foreign state” and another 19 cases are still open. In other words, just under 30 percent of requests for the return of children made in the past three years have resulted in children leaving Japan.

The ministry confirmed that in two cases during the first two years of Japan having signed the Hague, direct enforcement was carried out. It added that there had been a “limited number of cases in which the children’s release has not been achieved” through direct enforcement, without offering exact figures. Based on these unsuccessful attempts, the Hague Convention Division said by email, “We will keep monitoring these cases and continue to review our implementation of the Hague Convention closely as necessary.”

In its 2016 Annual Report on International Parental Child Abduction, the U.S. government concluded that “Japan failed to comply with its obligations under the Hague Abduction Convention in the area of enforcement of return orders.” Citing a case in which a Japanese return order issued in early 2015 was still unresolved by the end of the year, the report raises concern that there may be “a systemic flaw in Japan’s ability to enforce return orders.”

Bruce Gherbetti, a director with the Kizuna Child-Parent Reunion nonprofit organization, believes that failed direct enforcement procedures are inevitable considering the legal limitations placed on officials charged with carrying them out.

“They are following … Japanese domestic law, which is tied to the Hague Convention, and they are doing everything within their power, but their power is so extremely limited that … they are either requesting of the taking parent or requesting of the abducted child that they come voluntarily,” he explains. “So it is essentially asking permission of the kidnapper in order to enforce the return order. I mean it is a court order, yet they are begging and pleading.”

Under domestic legislation introduced to help Japanese authorities implement Hague returns, the only physical contact permitted is for a court bailiff to restrain the abducting parent if he or she tries to stop the child from voluntarily leaving.

Last year, the justice minister asked an advisory panel to look into revising the Civil Execution Law to set down specific procedures for enforcing court orders on the handover of children between divorced parents. The government is expected to submit a bill based on the committee’s findings next year.

However, Colin P.A. Jones, a professor at Doshisha Law School in Kyoto, doubts this process will result in more Hague returns. “I think experts expected the enforcement procedures adopted for Hague cases would ultimately become the standard for domestic cases as well. So I don’t expect much more than that. I certainly don’t expect it to result in any improvements in enforcement of Hague return orders,” Jones says. “Absent a significant change of policy — starting to impose criminal sanctions for noncompliance, for example — the basic limits on how to forcefully transfer ‘possession’ of a child without harming the child physically or emotionally will always apply, and taking parents will continue to be able to effectively use the children as ‘human shields’ against the judicial process.”

Time is on the abductor’s side

Gherbetti believes time is a critical factor in abduction cases, and this issue is at the heart of Japan’s failure to successfully return abducted children.

The Hague treaty “calls for six weeks of adjudication because they don’t want the child held outside their habitual residence longer than that,” he says.

Gherbetti says that although the international standard for Hague returns tends to be closer to six months than six weeks, in Japan the process often takes considerably longer — around 18 months or more — giving the abducting parent time to bond with the children and acclimatize them to their unfamiliar new surroundings.

Gherbetti blames an over-emphasis in Japan on the mediation portion of the convention for drawing out the process.

“So, similar to their domestic system, they try to have an amicable resolution,” he argues. “They much prefer mediation and an agreed-upon solution than an actual court order.”

Article 13 of the Hague Convention outlines situations where signatory states are not bound to order the return of a child. One such situation outlined in Clause B of the article is when “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.”

When crafting domestic legislation to handle Hague cases, Japan’s lawmakers “came up with a document that allows them to greatly expand the 13B grave-risk category, and they have created a number of loopholes that ensure they don’t actually have to be in compliance with the convention,” Gherbetti says. “The ‘grave risk of return’ is originally intended for situations where you have a child abuser — you are not going to return a child to someone who has physically or emotionally, etc., abused that child and there is clear evidence of such. To say that someone has habituated to the new environment doesn’t fall under the original intention of 13B. That is for certain.”

Parental alienation syndrome

On Sept. 15, two days after the unsuccessful attempt to enforce the return order in the Cook case, a second direct enforcement attempt was carried out at his estranged wife’s house.

This time, Cook’s two youngest children were away on a school camping trip, but Cook was allowed into the house on the condition he would not take the children back to the U.S. that day. Cook says he spoke to his two older sons from a distance, although did not actually see them, as they were hidden elsewhere in the house.

Cook says the boys called out “You’re not my father anymore,” “I don’t want to know you” and “Can’t you see we are happy here and don’t want anything to do with you anymore?”

Cook believes his wife and her family deliberately turned the children against him, a classic case of parental alienation syndrome. He also thinks they coached his children to make these types of statements, which are similar to those they used in interviews with court officials during the mediation process.

Noriko Odagiri, a professor of clinical psychology at Tokyo International University, says that although she is unable to comment on specific cases, the risk of children who are victims of parental abduction developing parental alienation syndrome is very high, and children up to the age of 12 are especially vulnerable.

Odagiri says this condition, which she calls a form of “brainwashing,” develops due to the material circumstances the child is forced into, and also the behavior and attitudes of the taking parent. She adds that it is a violation of the will of the child. “The child has no choice because they are dependent on the alienating parent both financially and emotionally,” Odagiri says. “They come to believe the alienating parent is the best parent and they can’t live without them.”

Odagiri believes this is a form of child abuse that can have a serious, long-term negative impact on mental health that can remain through adulthood. “When they grow older they recognize the whole map of their life and what happened to them as a child,” she says.

Cook’s wife failed to comply with a Minnesota court order to surrender the children’s passports to the U.S. Consulate in Osaka by April 7 and release them into Cook’s care by April 23. Cook flew to Japan and was present at the consulate in the hope that he would be reunited with his children. But again, he left alone.

Cook is appealing a decision made by the Osaka High Court in February to revoke the earlier judgment granting him the return of his children, based on its opinion that Cook lacks the means to support the children in the U.S. He was granted the right by that court to take his appeal to Japan’s Supreme Court and is now preparing arguments.

“I am a loving parent and a loving parent never gives up, never gives in, never manipulates their children and, above all, recognizes that their children possess the same human rights as they do,” he says. “Children are not property, children love both their parents and a part of a child dies when they are denied the other parent.”

The Japan Times made a number of attempts to contact Cook’s wife for comment by telephone but she could not be reached, and no replies to emails sent to her address were received. An attempt was also made to reach her through her lawyer, Tomoko Kamikawa. Kamikawa declined to comment and said she was unable to assist with contacting her client, because she was not representing her in relation to her communications with the media.

Loving from a distance

Paul Halton’s children were abducted to Japan from the U.K. by his Japanese ex-wife in 2014, a year after the couple divorced. Dual custody of the three children was awarded in the English courts during divorce proceedings.

The courts also stipulated that the children should live in the U.K. and placed a travel embargo on the mother taking the children to Japan that applied until the country implemented the Hague Convention. Japan signed the convention on April 1, 2014, and in August of that year the children were abducted. On March 31, 2015, the Osaka Family Court ruled that the children should be returned to the U.K. under the Hague Convention . The mother’s appeal was rejected three months later and a return order was issued by the courts.

After Halton’s ex-wife continued to refuse to comply and return the children to the U.K., an order for “indirect enforcement” was carried out. Indirect enforcement, a mandatory part of the Hague return process, involves attempting to make the abductor pay fines to the other parent, usually ¥5,000 per day per child. This step must be carried out before direct enforcement is attempted. Halton says he never received any money from the mother, as she was able to avoid making payments by claiming welfare and thereby obtaining beneficiary status.

With two years having passed since he’d seen his children — now 12, 10 and 7 — Halton decided to take the next step and proceed with direct enforcement. This was attempted on Nov. 29 and Dec. 1 of last year.

Officials and social workers were unsuccessful in executing the return order. However, they did manage to persuade his ex-wife to let Halton take the children for a day trip to Universal Studios Japan in Osaka a few days later, which he says was “a fantastic moment to spend some time with the children.”

A very special day for the four of them wrapped up at a branch of the children’s favorite Italian chain restaurant near the drop-off spot.

“Dinner again was wonderful, full of memories”, Paul recalls. But, he says, “I could now feel every second pass as drop-off time approached.”

Halton says he was tempted not to hand the children back at the end of their day trip, as he had the backing of both the Japanese and British governments to legally return home to the U.K. with his children. “But what would that do to my children?” he asks. “I couldn’t force them, rip them from their mother and for a second time turn their world upside down.”

Halton says that since this visit the situation has improved a little. Skype chat sessions have resumed, and gifts and cards to the children in Japan seem to get through, but the situation is still very fragile and out of his control. He and his ex-wife are supposed to be negotiating long-term, fixed arrangements about contact with his children, but no real progress is being made.

“Since I’ve reached the end of the current legal road, I fear that the children will have to grow up without me in their lives,” Halton says. “I hang on to the hope that one day my ex-wife will agree that the children and I can visit each other, at least in that I will have a few weeks a year to help them grow and learn, as a father should be doing.

“It’s a horrible reality to think that I will miss my three kids’ childhoods,” he says. “The next time I see them could be when they’re old enough to break free from their mother and independently seek me out, by which time they will be adults potentially with careers and families of their own. We’ll know each other but we won’t be close as nature intended.

“The likelihood is that they will remain in Japan for the rest of their lives and so even my unborn grandchildren will be distant and possibly unknown to me,” Halton says. “This is a thought that haunts my everyday life and I doubt will ever fade.”

Halton’s father, Richard, says that although parental child abduction hurts the children most of all, and then the left-behind parent, many others who were connected to the children are also deeply affected.

“Both I and Grandma find that it isn’t the same with these three small faces missing, and I know that other family members feel the same. The other children, their cousins, wonder where they’ve gone and why. We all feel a pervading sense of loss. We know that the children are safe but we never see them. Are they truly happy?” he asks.

Richard adds that the situation is made far worse in the case of parental child abductions because the “family that tries to correct the wrongs done has to contend with official indifference and inaction” and also bear a considerable financial burden in the hope of seeing the children again. “We are supporting our son Paul emotionally and financially in his quest, but the system is loaded in favor of the abductor and we have all come to the conclusion that the Hague Convention is an expensive waste of time.”

Your comments and Community story ideas: community@japantimes.co.jp

 

https://www.stripes.com/news/us-court-rules-against-soldier-returns-baby-to-okinawa-mom-1.460354#.WOK0LRiZPVo

 

By CHIYOMI SUMIDA | STARS AND STRIPES Published: March 24, 2017

CAMP FOSTER, Okinawa — A 20-month-old girl returned to her Okinawa home from the United States last week — the island’s first child-return case under the Hague Convention on cross-border parental kidnapping since Japan joined the treaty in 2014.

In February, the U.S. Middle District Court in Florida ordered the child’s father — a Maryland-based U.S. soldier — to return the child to her mother on Okinawa, which the court acknowledged as the girl’s “habitual residence,” said attorney Masanori Takeda.

Child abduction has long been a concern for U.S. servicemembers and some in Congress, who initially called on Tokyo to ratify the Hague Convention and have since called for tougher enforcement within Japan.

Cultural and legal obstacles in Japan — where child abduction by one parent isn’t always viewed as a crime — have previously prevented U.S. servicemembers and other citizens from gaining custody or seeing their children in Japan.

In this case, a judge ultimately determined that a soldier had unlawfully kept his child from the mother.

The couple “had very limited language communications” when they married in 2014 and resided with the woman’s teenage son, according to a Florida court complaint filed by the woman.

In March 2015, the woman, then pregnant, and her son moved with the soldier to their new post in Maryland, Takeda said.

After reporting domestic and sexual abuse, the Army Family Advocacy Program helped her and her son return to Okinawa, where the child was born four months later.

That October, the woman was asked by her estranged husband to attend his brother’s wedding in Florida, said Takeda, who added the man yanked the baby from her arms during the visit.

A brief fight ensued, and the woman was arrested after the husband reported domestic violence to police. The woman was unable to explain her version of events in English, according to the complaint.

She was sent to a women’s shelter after the Florida Department of Children and Families acknowledged she was a victim of domestic violence. A social worker observed a 4-by-2-inch bruise on her neck and a “silver dollar sized” bruise on her thigh, according to the court complaint.

The mother said her husband had “choked her and again forced her to have sex against her will,” according to the complaint.

The husband denied the allegations and said she had subjected him to “extreme anger, aggression, and physical violence” going back to when they were stationed in Japan, according to court documents.

Nevertheless, the soldier wrote to her in phone texts that he loved her and that “Me no like divorce talk … me no like back Okinawa talk,” according to court documents.

The soldier argued that his wife returned to the U.S. to join him to live, not just to visit.

The premise that she and the infant intended to remain in the United States was part of the reasoning that convinced a Florida court to grant the soldier custody, according to court documents.

The soldier’s lawyers asserted that the Hague Convention was not applicable to their case because of the Florida court’s judgment.

The mother’s attorneys contended “she had simply wanted a divorce and to return home to Japan with her children.”

Mari Kitada, a lecturer at Tokyo’s Kyorin University who’s an expert on the international parental child abduction treaty, said she believed the Hague Convention ruling was appropriate and consistent with the spirit of the treaty.

“While a U.S. court had awarded the father full parental custody, without the treaty, bringing the child back to Japan would have been impossible,” she said during a phone interview Thursday.

Kitada pointed to recent changes surrounding the pact in the international community, which began to focus more on a child’s best interests instead of solely focusing on the child’s habitual residence.

“As social complexities advance, various factors, to include domestic violence, must be carefully and thoroughly considered to protect the child’s safety and well-being,” she said.

According to the Hague Convention Affairs Office at Japan’s Ministry of Foreign Affairs, 233 petitions for both child returns and visitation arrangements have been filed between April 1, 2014, and March 1, 2017.

Of those, 121 were requests for children to be returned to their habitual residence. Twenty-four of the cases involved parents from the U.S., a ministry spokesman said. The other 112 petitions — 46 involving Americans — were for parents to have access to their children.

Stars and Stripes reporter Erik Slavin contributed to this report.

sumida.chiyomi@stripes.com

Italian Case

January 22, 2017

Source:  http://www.kizuna-cpr.org/italian-case

An Italian Case

A case of an Italian citizen has occurred. He moved with his family from Europe to Japan.
Then, his two children were taken to Nagasaki. His court case begins on January 12, 2017.

日本語テキストは以下の通りです。

English translation, Japanese translation, and image of Italian news story below.

Online article:
http://www.lastampa.it/2017/01/06/italia/cronache/luomo-che-combatte-la-legge-nipponica-per-rivedere-i-suoi-figli-2xgHMN5GrE7ImR8M5RkswK/pagina.html

Page 12 | Top News | LA STAMPA Friday 6 January 2017

 

The man that fights Japanese law to see his children again

“My wife took them and the judicial system protects her”

 

 

People

FRANCESCA SFORZA

ROME

 

 

“My dad? I don’t know where he is, nor what he’s doing.” This is what lots of Japanese people are saying once they become adults; after the parents’ separation and divorce, they have no idea where their fathers have gone. But they haven’t been abandoned; it’s the law. Something may change though, and if this is the case, it would also be thanks to the battle of an Italian father, who is fighting to have his rights respected. In case of victory, he could contribute to revolutionize the Japanese Family Law System. In Japan, joint custody does not exist. If a couple divorces, the court will take over the decision of which of the parents will take custody. Apart from some very rare cases, the children end up staying with the mother. On top of this, too often custody ends up being assigned to the parent that takes away the children first, with the result that the other parent loses his rights in that very precise moment. The visitation rights belong to the children and not of the parent. In a culture where the fathers end up spending too much time at work, and the mothers have no interest in keeping the relationship with the in-laws, you can explain well the enormity of the numbers we’re looking at; at least 3 million Japanese children, in the last 20 years, have been raised without being able to see one of their parents.

 

“We have not divorced yet, but I don’t know anything about my children from last July, I couldn’t even say Happy Birthday for my daughter’s second birthday” says Pierluigi, who requested to stay anonymous to avoid creating problems while close to the hearing, that will take place in Nagasaki in mid-January. He, an Italian citizen, and his wife, Japanese, have moved to Tokyo from Germany, the country where their two children were born. “I decided to move here because I know well and love Japan since a long time ago, and I think their educational system is very good. I did it for my children.” However, shortly after relocating, he had been surrounded by his wife’s relatives, who informed him that in order to solve the usual couple-related problems it was necessary to live separately – “If you don’t agree we’ll call the police.” After this, she decided to move near Nagasaki with the children, the city where she is from. “Even though I know so many things about Japan – says Pierluigi – I had never heard about child abductions during marriages. We are still married, and I still have all the rights on my children, but since my wife took them first, if I tried to get them back they would arrest me.” No help even from the Police or the local social services; all of them agree that this is an injustice, but the fact that children cannot see one of their parents is not considered a crime or an abuse.

 

But Pierluigi doesn’t want to stay without his children: “Between us there’s a very strong bond, when we lived together the neighbors often told me “you’re like a mother to them” … I still have a very clear image of my 4 1/2-year-old son, one of the last times that his mother allowed me to see them; he came out of the house bare foot crying and begging me not to leave.” Together with his attorneys, Pierluigi has planned a strategy that is grabbing the attention not only of foreign nationals who lost access to their children, but also of many Japanese parents, who more and more feel this type of forced separation is a violent injustice perpetrated by the legal system. The fact that the Japanese judicial system considers custody-related matters after the end of a marriage as exclusively “private”, has delayed the signing of the Hague Convention on the Civil Aspects of International Child Abduction (that took place only three years ago and has no retroactive effect). On top of it, this has increased the understanding that the children belong to the mothers and that the father’s role is not relevant in raising a child. “We are in Japan, why should the kids speak Italian” – Pierluigi’s mother-in-law said. Also, “What’s the problem if you don’t see them for one or two years? I raised three kids without my husband.”

 

Many international governments have already pressured Japan to end abductions, and several Japanese politicians are ready to cooperate in order to improve the situation. There are lots of things to plan carefully before the hearing: “You just need to act in the best interest of the children, as it’s specified in the interpretation of article 766 of the Civil Code.” You need knowledge, courage and passion. We ask him if at least he’s a bit angry: “It’s useless, if you enter a Japanese Court angry – he says – you have lost before even beginning.”

 

3 million – It’s the estimated number of children that were raised without seeing one of their parents in the last 20 years.

 

The parents – Victims of the forced separation are not only foreign nationals married with a Japanese person, but also many Japanese parents themselves.

 

The sequence of events

Pierluigi (the name is invented) and his wife, decide to move to Tokyo, the Japanese capital city, from Germany where they were living with the two children born during their marriage.

Shortly after relocating, the wife’s relatives inform Pierluigi that in order to solve the usual couple-related problems, the only solution is to live separately for some time. The woman moves with the two children to Nagasaki, where her family originates. In July, Pierluigi sees his children for the last time.

Pierluigi and his wife are still married, but according to the Japanese law, if he tried to get his children back he would be arrested. His is one of the many child abduction cases that in Japan are becoming more and more frequent.

In mid-January a Family Court will examine Pierluigi’s case. Many Japanese and foreign parents are awaiting this hearing with big hopes. His case could revolutionize the Family Law of Japan.

http://www.japantimes.co.jp/community/2016/04/17/issues/two-years-japan-signed-hague-children-returned-old-issues-remain/#.VyUeVGNlnVo

Two years after Japan signed Hague, children have been returned but old issues remain
BY COLIN P.A. JONES
APR 17, 2016

‘What brand of Champagne did you drink?”

The lawyer delivered the question with a dramatic flourish, and I suppose it was a reasonable question to ask, even if rhetorically. I was being cross-examined as an expert witness in a child custody-related trial in a Western courtroom. One parent wanted to relocate to Japan with the child, the other was objecting.

This was 2015. In a 2008 Japan Times column written about a rumor that Japan was preparing to sign the Hague Convention on the Civil Aspects of International Child Abduction, I had declared: “I do not plan to crack open any Champagne until an abducted child is actually returned home.” The rumor proved wildly premature, but Japan ultimately ratified the convention, which, together with a package of baroque implementing laws and regulations, came into effect from April 2014.

The question about my Champagne preferences (Veuve Clicquot, by the way, if anyone is buying) was reasonable as a challenge to my reliability as an expert, yet was arguably irrelevant to the issue at bar: What could the court expect in terms of preserving the relationship between the child and the left-behind parent after the other parent and their child relocated to Japan? Unfortunately, “Not very much” may still be the answer.

But first, credit where it is due: In the two years since Japan signed the convention, more children abducted to or unlawfully retained in Japan have been returned to their home countries than at any time in the past. The Ministry of Foreign Affairs, Japan’s “central authority” for convention purposes, has handled almost 200 applications for assistance, and returns have been achieved in both directions (see table).

The Foreign Ministry has put significant effort into implementing the treaty and performing its central authority role. (A ministry representative also kindly responded to my inquiries in connection with this column.) It has sought to deter abductions through awareness programs, as well as foster amicable resolutions to abduction and visitation disputes by supporting mediation programs specifically designed for convention cases. (I am a mediator for one of them.) It also provides financial assistance for the translation of court documents and has set up a special online system (named Mimamori) for supervised cross-border “virtual visitation.”

Amicable resolutions are great, but there is not always much amity left between parents when one of them unilaterally spirits the children away to another country. Sometimes fear of abuse is a factor, but not always. Sometimes it is not; sometimes the taking parent is just trying to erase the other parent from his or her life, which necessitates erasure from the children’s lives as well. Having spent over a decade watching countless cases like these transpire, I believe that intentionally denying a parent — a former spouse, or life partner at that — a loving relationship with his or her child may be the worst thing one human being can do to another, short of physical violence. It is rarely good for the child, either.

The Hague Convention makes this harder by requiring that children taken or retained across borders in violation of custody rights be returned to their home country (where the other parent is typically also resident). Returns are the rule, but there are exceptions. One of these is if the child is living in Japan with the consent of the other parent. Disputes over relocation during or after divorce also being common, a child may also end up living in Japan with one parent through the permission of a foreign court.

When Japan was not a convention signatory, it was a red flag to foreign judges whenever a parent sought leave to take the children to Japan, whether to visit or live. “Just taking the kids back for the summer to see Grandma” and then staying is a pretty common abduction scenario everywhere (with Grandma sometimes playing a role in persuading the parent to stay). In Japan it was almost always a successful strategy — one that would frustrate whatever a judge in the country of origin might have decided about the child custody arrangements. Now, this type of “abduction by retention” should result in a Japanese court issuing a return order.

With Japan having joined the treaty, parents and foreign judges alike may now feel more secure about the idea of a child being brought here to live. Yet if that happens with the consent of the other parent or permission of a foreign court, a return order will then be difficult — if not impossible — to obtain. While judges in American states may be accustomed to retaining jurisdiction over children taken to another state and being able to enforce their rulings on custody, this probably won’t work with a child taken to Japan; if the scenario does not constitute an “abduction,” parents will likely be left to seek relief in Japanese family courts outside the convention framework, and they should lower their expectations accordingly.

Judges still finding their way

First, conversations with lawyers indicate that even in abduction cases that clearly fall under the convention, the Osaka and Tokyo family courts charged with resolving them are still figuring things out. Family court judges are likely accustomed to resolving domestic cases without being constrained by the rules of evidence and procedure that should apply in Hague cases.

At the same time, however, such cases are supposed to be resolved more expeditiously, despite involving complex issues such as the interpretation of foreign law: What do “rights of custody” mean in Country X, for example? (There is an international network of “Hague judges” in which Japanese judges participate, but apparently not to the extent of using it as an informal source of information on foreign law and practice in specific cases.) Similarly, which party has the burden of proving what — a parent’s consent, for example? And what if a parent or foreign court’s permission to relocate to Japan with a child is based on the relocating parent’s promise of cooperation with visitation — a promise that is immediately broken after getting off the plane?

Some of my lawyer interlocutors complain about a lack of procedural clarity. Perhaps this is a matter of time and more cases will resolve these issues.

Mixed messages on visitation

Second, visitation in Japan remains patchy and difficult to enforce. The convention provides for facilitation of cross-border access (aka visitation) but with limited substance. While the Foreign Ministry offers support, it is just that — support, such as contacting the other parent and offering online visitation and mediation. Such support has reportedly resulted in visitation in some cases, and even led to a few instances of children being returned.

If cooperation is not forthcoming, however, the parent seeking visitation is left seeking recourse in family courts, pretty much like everyone else. Here the stories I hear seem have not changed dramatically: parents going for months without seeing their children, mediation sessions where nothing seems to happen, judges who seem unduly solicitous of parents engaging in alienating behavior, and courts making decisions based on expediency rather than the best interests of children.

There are some signs of changes: Courts seem to be awarding visitation more, and I hear more about overnight stays, though recent judicial statistics show them occurring in less than 10 percent of cases. Also, in a December 2014 decision, the Fukuoka Family Court transferred legal custody of a child from mother to father due to the former’s obstruction of visitation. Only last month, the Matsudo branch of the Chiba Family Court ordered a mother to hand over her daughter to the father after years of blocking contact between the two. Japanese family court professionals have long written about the “good parent rule” — giving custody to whichever is more understanding of visitation with the other — as a remedy for such intransigence, but these are the first instances I have seen of it actually being applied.

Yet such developments should be treated with caution. Seemingly revolutionary decisions have to survive appeals and be enforced to be truly meaningful. In the Fukuoka case, only legal custody was transferred, something that can be accomplished simply by filing the judgment with the family registry; it does not automatically equate with the father getting contact, only the mother needing to seek his cooperation to take legal acts like applying for a passport on their child’s behalf.

As for the other case, branch family courts have long been the dumping ground for judges disfavored by the judicial hierarchy, meaning the Chiba case could be an anomaly as much as a harbinger of true change. Even the family courts’ increased acceptance of visitation seems to be tied to growing use of supervised visitation through NPOs staffed by (surprise!) retired family court personnel. In other countries supervised visitation is limited to cases where a parent is abusive or potentially dangerous; in Japan it seems to be becoming the easy-to-award/recommend default solution for when the custodial parent is intransigent.

Visitation thus still seems to be driven by what the custodial parent can be convinced to agree to, rather than what might be meaningful for the child. The Foreign Ministry’s Mimamori online supervised visitation system seems to be an extension of this logic: that any contact is better than none, and might lead to something more meaningful (which is sometimes the case). Understandably, some parents who have done no wrong yet are expected to accept being treated like criminals in order to interact with their own children find this abhorrent.

Lack of enforcement — and details

Third, an order from a Japanese court to return a child, whether across the street or to another country, can often still be frustrated by a parent simply refusing to comply, or getting the child to refuse. This is said to have already been an issue in convention cases, which should not surprise anyone: Before the treaty came into force, the nation’s shikkōkan — the bailiffs who enforce civil judgments — announced that it would likely be impossible to enforce return orders without the child’s cooperation. While the process of implementing the Hague Convention has brought some clarity to the theory and practice of enforcing returns, without sanctions for contempt (which Japanese judges lack in these cases) or other police-like powers to back them up, court orders can end up being meaningless pieces of paper.

Fourth, and finally, after two years and a number of cases, the workings of Japan’s Hague courts remain invisible. No judgments have been published, nor do there appear to be any statistics available on case resolutions. There is no way for outsiders to know how Japanese courts are deciding whether or not to return children.

At least I can drink some Champagne (Moet & Chandon is fine too): Japan did join the convention, and lawyers tell me it is having a real effect in deterring abductions. Yet it shouldn’t be forgotten that the convention’s potential remains limited by the constraints of the Japanese family justice system as a whole. Describing those requires more words than a single column allows, so keep watching this space.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone. Law of the Land appears on the second Monday Community Page of the month. Your comments and story ideas: community@japantimes.co.jp

(April 1, 2014, to March 31, 2016) APPLICATIONS FOR HELP WITH RETURNS APPLICATIONS FOR HELP WITH VISITATION
APPLICATIONS TO MINISTRY OF FOREIGN AFFAIRS RELATING TO CHILDREN IN JAPAN (AND THE FOREIGN COUNTRY INVOLVED)
U.S. 11
France 4
Australia 4
Germany 3
Canada 2
U.K. 2
Singapore 1
Italy 1
Spain 1
Russia 1
Switzerland 1
Belgium 1
Sri Lanka 1
Turkey 1
Fiji 1
Colombia 1
South Korea 1
U.S. 39
U.K. 6
France 5
Australia 4
Canada 4
New Zealand 3
Singapore 3
Mexico 2
Germany 1
Costa Rica 1
Subtotal 37
Rejected* 8
Total 45
Subtotal 68
Rejected* 7
Total 75
APPLICATIONS TO MINISTRY OF FOREIGN AFFAIRS RELATING TO CHILDREN IN FOREIGN COUNTRIES
Thailand 6
Russia 4
Brazil 4
South Korea 3
U.S. 3
Germany 2
Canada 2
France 1
U.K. 1
Italy 1
Spain 1
Switzerland 1
Slovakia 1
South Africa 1
Peru 1
Romania 1
Sri Lanka 1
Belarus 1
Sweden 1
U.S. 5
Russia 3
Canada 3
Germany 2
Ukraine 2
Thailand 2
Australia 1
South Korea 1
Uruguay 1
Netherlands 1
Poland 1
Hong Kong 1
Subtotal 36
Rejected applications* 3
Total 39
Total 23
TOTAL APPLICATIONS 84 98**
STATISTICS IN TABLE COURTESY OF MINISTRY OF FOREIGN AFFAIRS

NOTES

* Applications for assistance may be rejected by the Foreign Ministry because they do not satisfy requirements for assistance (e.g., the requesting parent is unable to demonstrate rights of custody or visitation). In some instances, rejections reflect the fact that the taking parent has already returned with the child voluntarily, rendering the application moot.

** The far greater number of requests for visitation assistance for children in Japan in part reflects the fact that Japan allowed applications for assistance with visitation with children in Japan even in cases pre-dating the Hague Convention’s coming into force.

RETURNS

• The data regarding returns reflects applications to the Foreign Ministry for assistance in achieving the return of a child either in Japan or in a foreign country, which in the first instance involves encouraging the taking parent to return voluntarily or to mediate with the other parent. Accordingly, only some of these cases are ultimately resolved through court.

• According to the ministry, 14 children were returned from Japan, through mediation or other voluntary arrangements, alternative dispute resolution or court orders, and nine children were returned to Japan.

• These figures do not include some voluntary returns in cases where the Foreign Ministry was not formally involved.

• Three returns from Japan and one to Japan reportedly resulted from the visitation assistance process rather than the return process.

FEB2015ACCJARTICLE

For PDF of full issue, download from: http://www.accjjournal.com/
FEBRUARY 2015 • ACCJ JOURNAL

NEW RULES ON CHILD ABDUCTION
Tokyo handles first cases under newly ratified Hague convention

It took time and the application of a degree of pressure—both international and domestic—for Japan’s Diet to approve the Hague Convention on the Civil Aspects of International Child Abduction, which finally went into effect on April 1, 2014. So far, diplomats, lawyers, and children’s rights activists have broadly applauded the efforts of the Japanese authorities to accede to the spirit of the agreement, pointing out a number of cases in which the pact has been enforced.

They warn, however, that the legislation has been in place for less than a year, and that Japan’s courts have yet to become deeply involved in cases that, all sides agree, are complicated and replete with emotional aspects.
“It’s too early to tell yet,” Steven Maloney, consul general at the US Embassy in Tokyo, told the ACCJ Journal.
“The Japanese government has done a lot of things very well; they have enacted the legislation, set up an office in the foreign ministry, as well as assembled judges, social workers, and lawyers with diverse skills and the ability to do the job properly, and we’re very happy with that. “But how the courts react remains to be seen,” he added.

Before last April, Japan was the only G-8 nation not to have ratified this Hague convention, 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 and without the consent of the other parent.

With ever more international marriages—estimated at 40,000 a year in Japan—ending in separation or divorce, pressure from around the world has been building for Tokyo to enact relevant legislation.

In recent years, embassies in Tokyo were handling around 400 cases annually in which the Japanese parent had violated the terms of the convention. But previously, international authorities had been powerless to act once the child was in Japan.

At present, the US Embassy in Tokyo is dealing with close to 100 cases. “Each [case] is very complicated, and many involve more than one child,” Maloney said. Thirty-one applications for access to US citizen children and two cases for return are currently being handled by the Japanese authorities, and Maloney believes the Japanese authorities deserve credit for that.

“Clearly the government here is treating the issue very seriously, they are acting professionally, they are carrying out training, and they are not stonewalling, but we will know a great deal more in three months from now,” he added.

Jury still out

Concern revolves around an article in the convention that identifies “grave risk” to the physical well-being of the child at the center of a dispute as being grounds for a judge to refuse to sanction the child being returned to his or her country of habitual residence. Critics say that Japanese parents who have abducted a child are aware of this loophole and that they are likely to use it—whether or not there was any physical abuse in the past—to keep the child in Japan.

“If the article is interpreted in Japan as it is interpreted elsewhere, then we do not believe there are any loopholes,” Maloney said.

Taeko Mizuno Tada, a Tokyo-based lawyer with the firm Nagahama, Mizuno & Inoue, has handled international family cases for many years. She says the law was changed largely as a result of pressure from foreign governments.
“I believe the Japanese government agreed to ratify the convention because of overseas pressure, especially from the US government,” Mizuno said. “Over the past 20 years, amendments to the Civil Code related to family matters have been very slow and controversial in Japan.

“But as some children have been returned to Japan from other countries since April 1, we now understand that the Hague convention can be beneficial to Japanese and other residents of Japan as well,” she added.
Without external encouragement, Mizuno believes, it could have taken another 30 years for Japan to sign the Hague pact. But she agrees that the authorities here are taking their new obligations seriously.

“The Japanese foreign ministry has hired many good people to handle Hague convention issues,” she said. “And Japanese courts and the bar association have had a lot of education and training courses for Hague cases.”

Parents still suffering

However, foreign nationals who have been separated from their children for many years say Japan’s failure to ratify the convention earlier condemned them to years without their children, and that they still may never have the right to see their kids again.

“The benefits of Japan signing the convention only apply to cases where the children are under 16 years of age,” said Walter Benda, of Virginia, who has seen his two daughters just once in 20 years.

“Furthermore the Hague convention is not retroactive, so cases such as mine, which occurred in the past, and in which the children are already 16 or older, are not covered under any of the provisions of this treaty,” Benda added. He is joint founder of the Japan chapter of the US-based Children’s Rights Council.

Benda’s wife disappeared with the girls after seeing him off to work one morning from their home in Chiba Prefecture, and she rebuffed all his efforts to make contact with them. As soon as he did find them again, they vanished once more. The only time he has seen them 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.

The problem was overlooked for many years simply because it was not in the public eye, and there was “a cultural bias” in Japan that supported Japanese parents who had abducted children, Benda said.

“However, as the number of cases kept growing at an ever increasing rate, with parents becoming more and more organized and being able to use the Internet to leverage this issue, it started to catch the attention of leaders in the US, Japan, and other countries,” he explained. “In addition to media coverage, various documentaries, such as From the Shadows, further exposed the problem.

“Rallies and other events held by parents in the US, Japan, and other countries also raised public awareness, as did the passage of various congressional resolutions in the US.

“All of this built up to the point where it started to become an international diplomatic issue that Japanese leaders had to deal with when meeting with their foreign counterparts,” he said. “All of these efforts took about 20 years of hard work and sacrifices by parents who had their children internationally abducted.”

And while Benda concedes that little can be done in his case, he agrees that Japan signing the convention means that other foreign parents may not have to go through what he has endured for two decades.

“We have seen a marked decline in the number of parents contacting our organization for help because of their children being internationally abducted,” he said. “I definitely believe that Japan’s signing of the Hague convention has had a deterrent effect on the number of parental abductions of children of couples with one Japanese spouse and one non-Japanese spouse.”

US nationals seeking advice may contact tokyoacs@state.gov, call 03 3224 5000, or view the State Department’s website at http://travel.state.gov/content/ childabduction/english/about.html.