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

 

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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.

Business Standard
Thursday, November 20, 2014 | 07:19 AM IST

http://www.business-standard.com/article/pti-stories/first-japan-linked-child-returns-home-under-abduction-treaty-114111200752_1.html

First Japan-linked child returns home under abduction treaty
AFP | Tokyo
November 12, 2014 Last Updated at 14:30 IST

The Japanese government has helped return a boy to his German home in the first such case since adopting an international treaty on cross-border child custody disputes, an official said today.

The foreign ministry said it intervened in a case involving a five-year-old boy, brought to Japan by his Japanese mother, who left the boy’s German father.

The mother took the boy in June without the father’s consent, a ministry official said.

“In August, the father contacted us to request assistance. We have located the boy, and contacted the mother,” he said.

“In October, the mother took the boy to his home,” he said, adding that the parents will have to work out their difference in Germany.

Tokyo’s official involvement became possible after Japan enacted in April the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

Japan had long been the only member of the Group of Seven major industrialised nations not to ratify the convention, which requires nations to return snatched children to the countries where they usually reside.

Japanese courts virtually never grant custody to foreign parents, which has previously left few legal avenues for those whose former partners have fled to Japan with their children.

Hundreds of US parents have complained that they have been left unable to see their half-Japanese children. At least 120 have filed cases in Japan, invariably to no avail.

Major European nations such as Britain and France have also pressured Japan to join the shared rule among leading powers.

The Japanese government has 13 pending requests from non-Japanese parents for return of their offsprings taken to Japan, the foreign ministry official said.

There are nine cases where Japanese parents are asking for return of their children taken abroad, he said.

The foreign ministry has also accepted 46 requests from non-Japanese parents requesting meetings with their children in Japan but not asking for their return.

There are 13 cases of Japanese parents requesting meetings with their kids taken abroad, the official added.

http://www.scmp.com/news/asia/article/1594102/racist-cartoon-issued-japanese-ministry-angers-rights-activists

‘Racist’ cartoon issued by Japanese ministry angers rights activists

Pamphlet issued by Tokyo to Japan’s embassies in response to Hague convention is criticised for depicting a foreign man beating his child
PUBLISHED : Tuesday, 16 September, 2014, 11:14pm
UPDATED : Wednesday, 17 September, 2014, 3:31pm

Julian Ryall in Tokyo

The cartoon showing a white man beating his child has drawn condemnation from human rights activists.

Human rights activists in Japan have reacted angrily to a new pamphlet released by the Ministry of Foreign Affairs that they claim is racist and stereotypical for depicting white fathers beating their children.

The 11-page leaflet has been sent to Japanese embassies and consulates around the world in response to the Hague Convention on the Civil Aspects of International Child Abduction going into effect in Japan on April 1.

Tokyo dragged its feet on ratifying the treaty, which broadly 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 but without the consent of the other parent.

But manga-style images of foreign fathers beating children and Japanese women portrayed as innocent victims have raised the hackles of campaigners, both those fighting discrimination against foreigners and non-Japanese who have been unable to see children who have been abducted by Japanese former spouses.

Debito Arudou said the Japanese “see themselves as the victims”.”It’s the same problem with any negotiations in which Japan looks like it has been beaten,” said Debito Arudou, a naturalised Japanese citizen who was born in the United States and has become a leading human rights activist.

“After being forced to give up a degree of power by signing the Hague treaty, they have to show that they have not lost face and they try to turn the narrative around,” he said. “It’s the same as in the debate over whaling.

“The Japanese always see themselves as the victims, and in this case, the narrative is that Japanese women are being abused and that the big, bad world is constantly trying to take advantage of them.”

Arudou is particularly incensed by the cover of the publication, which shows a blond-haired foreigner hitting a little girl, a foreign father taking a child from a sobbing Japanese mother and another Japanese female apparently ostracised by big-nosed foreign women.

“It is promoting the image that the outside world is against Japanese and the only place they will get a fair deal is in Japan,” said Arudou.

The rest of the pamphlet takes the form of a conversation between a cartoon character father and son, but with the storyline showing the difficulties of a Japanese woman living abroad with her half-Japanese son.

Arudou says the publication then “degenerates into the childish” with the appearance of an animated doll that is the father figure’s pride and joy, but also dispenses advice.

“As well as promoting all these stereotypes, why are they not talking about visitation issues for foreigners whose half-Japanese children have been abducted by their ex-wives?” asked Arudou.

Several foreigners who have been unable to see their children for years have already contacted Arudou to express their anger, with a number of US nationals saying they would pass the document onto lawmakers.

Arudou’s post on the issue on his website has also attracted attention, with commentators describing the pamphlet as “racist propaganda”.

“This is disgusting,” one commentator posted. “Pictures are powerful, more powerful than words. And the only time I’ve ever seen anything remotely like this is when I did a search for old anti-Japanese propaganda.

“Of course, that was disgusting too, but it was wartime!”

Another added, “What a pathetic advert for an ‘advanced’ country.

“As for the text – not wasting any more bandwidth on such utter racist, xenophobic, patronising, paranoid nonsense.”
This article appeared in the South China Morning Post print edition as ‘Racist’ cartoon sparks outrage

The following is a copy of the English language version of the pamphlet:

MOFA Hague Convention pamphlet

http://ajw.asahi.com/article/behind_news/social_affairs/AJ201407300041

 

Hague child abduction treaty applied for 1st time to Japanese child at British court

 
July 30, 2014

By TAKUYA KITAZAWA/ Staff Writer

A court in London ordered a Japanese woman living in Britain to return with her child to Japan to sort out custody issues under the terms of the Hague child abduction treaty.

The Hague Convention on the Civil Aspects of International Child Abduction, which took effect in Japan in April, is designed to help parents of contracting countries reclaim children taken overseas by their partners without their consent.

The court ruling involves a 7-year-old child of a Japanese couple who are estranged and have filed for divorce. It is the first time the pact has been applied to a child of Japanese nationality, the Foreign Ministry said.

According to the father’s lawyer, the mother left for Britain in March for business reasons, taking their child with her. But when she did not return to Japan on the date she had scheduled, the father’s side applied to a British governmental organization for support based on provisions of the international treaty in May. The father filed a legal application with the court in London the following month for the child’s return.

The court determined that by staying beyond her promised return date the mother had violated the Hague Convention. In its order of July 22, the court ordered the mother to return to Japan with the child on July 30. The mother offered no objections to returning to Japan, the sources said.

The couple in question are now in the midst of divorce settlement negotiations, and a Japanese family court is expected to judge which parent should get custody of the child, according to the sources.

The father’s lawyer, Hirotaka Honda, said the case has proved the usefulness of the convention.

“Thanks to the Hague Convention, the parents will be able to move forward with discussions and legal proceedings after the child is returned to Japan,” he said. “It deserves appraisal.”

By TAKUYA KITAZAWA/ Staff Writer

http://www.japantimes.co.jp/news/2014/04/24/national/politics-diplomacy/summit-kept-script-sidestepped-many-issues/?utm_source=rss&utm_medium=rss&utm_campaign=summit-kept-script-sidestepped-many-issues#.U1pnr47D_4g

National / Politics & Diplomacy| ANALYSIS

Summit kept to script that sidestepped many issues

by Eric Johnston

Staff Writer

Apr 24, 2014
Article history

High-level summits like Thursday’s between U.S. President Barack Obama and Prime Minister Shinzo Abe are mostly scripted affairs, with a clearly defined agenda revolving around the most pressing, or politically important, issues.

The Japan-U.S. summit covered America’s military commitments to Japan under the bilateral security treaty, including standing tough on the Senkakus and North Korea. They also covered the Trans-Pacific Partnership trade pact.

But in any summit, there are always pressing issues that are downplayed, left off the agenda or deemed not worthy of high-level attention.

The most difficult aspect of the summit was the TPP negotiations. Whatever is or is not eventually announced by the U.S. and Japan, Obama will return to Washington to strong opposition to the pact in a Congress that, while concerned about beef, pork and the other points of contention making headlines in Japan, is perhaps even more worried about other issues.

“There are roughly 30 votes in the House, out of 435 total, by members who represent a district with any real prospect of improving their agricultural exports by opening up the Japanese market. Agriculture is a factor, but it’s not a very big factor in congressional opposition,” Alan Grayson, a Democrat from Florida who serves on the House of Representatives Foreign Affairs Committee, said in a telephone press conference earlier this week.

Lori Wallach, director of the Washington-based Public Citizen’s Global Trade Watch, lists the most contentious TPP-related issues for Congress, which were downplayed or not discussed by Obama in his meeting with Abe.

“Even if the continuing bilateral negotiations resolve U.S.-Japan auto and agricultural trade issues, there are scores of other deep deadlocks in TPP negotiations,” she said, rattling off issues ranging from disputes on medicine patent and reimbursement policies to environment and labor standards.

Some 60 U.S. senators and 230 U.S. representatives have insisted the TPP include enforceable disciplines on currency manipulation. But other TPP countries oppose this, and to date the issue had not been addressed, Wallach added.

Also downplayed was the fact that the TPP is unlikely to be approved by Congress if Obama does not receive special negotiating authority from the legislative body to do a deal. There is strong opposition in both parties to giving him such authority, and few in Washington believe it will happen this year.

“Fast track (trade promotion) authority from Congress is highly unlikely. Fast track has been announced as dead until the (November congressional) elections. But I think it’s dead after the elections as well,” said Democratic Rep. Brad Sherman, who serves on a committee dealing with international trade.

Also left off the summit agenda were proposals for resolving tensions over historical issues between Japan and South Korea, and Japan and China.

Anger toward Japan, and particularly Abe, over the “comfort women” issue in particular is causing problems not only in East Asia, but also in the United States, including in Glendale, California, where human rights groups persuaded the city to erect a memorial statue to the wartime sex slaves.

Some U.S. municipal and state governments have passed resolutions condemning Japan’s stance on the comfort women, while extreme right-wing Japanese politicians are demanding the statues be removed.

While the State Department says these statues and resolutions are local issues, they make it more difficult for both Tokyo and Washington to move forward on larger issues of regional cooperation.

Obama also offered U.S. support regarding Japanese nationals abducted by North Korea. But neither leader appears to have raised Japan’s other so-called abduction issue: the more than 400 children of Japanese and American parents who were allegedly taken from the U.S. to Japan by an estranged Japanese spouse without permission.

During her Senate confirmation hearing last year, U.S. Ambassador to Japan Caroline Kennedy said she was concerned about the issue. The Hague Treaty on child abductions, which specifies that nations are required to facilitate the return of children taken by any parent away from the country marked as their usual residence, came into effect in Japan only on April 1, but does not apply to children abducted before then.

http://www.japantimes.co.jp/community/2014/04/16/issues/hague-jars-with-japans-family-law-a-zero-sum-game-with-only-one-outcome/#.U08X547D_UN

Issues| LAW OF THE LAND

Hague jars with Japan’s family law, a zero-sum game with only one outcome

by Colin P.A. Jones

Special To The Japan Times

Apr 16, 2014
Article history

On April 1, the Hague Convention on the Civil Aspects of International Child Abduction went into force in Japan, as did the necessary implementing legislation. Having already written about this legislation in a prior column, I won’t revisit the subject here.

While Japan’s accession is a welcome step forward, I wonder how it will actually pan out. Implementation may be frustrated by some basic features of Japanese family law that can be neatly described mathematically: 1+1=1.

I would love to take credit for this wonderfully expressive formula, but it comes from a Japanese lawyer I met a few months ago, who used it to explain his own doubts about the convention’s viability here: “To Westerners, marriage means 1+1=2. But in Japan it equals 1.” It made perfect sense to me, but perhaps I should explain.

The traditional Japanese family structure was the ie, or house. This was an extended family that might encompass four generations of kin and several married couples sharing the same surname and even residence. The head of the house — typically the eldest male — had great authority over other members. Junior members needed his consent to marry or establish their own households. If the house was an economic entity — a farm, shop or other family enterprise — the head would also manage the business.

Primogeniture was the rule, with the eldest (legitimate) son inheriting the house, its property and the status of head. Marriage, childbirth and adoption were the means by which the house was perpetuated. While these were events that involved individual members of the house, they were ancillary to the greater collective: One plus one plus any number of additional ones still equaled one — a single ie.

The ie system was embodied in the Civil Code adopted at the end of the 19th century. It was feudalistic and discriminatory: Children born out of wedlock and women were disfavored, as were younger brothers. The head of house was a legal, heritable status that entailed both power and responsibilities, including a duty to support members of the household as well as control of family property.

The ie system was also a convenient tool for identifying, controlling and governing the Japanese people, which brings us to the koseki (family register) system. By requiring each ie to be registered, the government could implement policy through its head. The house rather than the individual was the smallest social unit directly subject to governance, with the head of the house being formally responsible for paying taxes, facilitating conscription and implementing other government programs.

The koseki system gave a weak central government leverage to govern nationally. The trade-off was noninterference within the family, with the head of the house accorded broad autonomy to govern it as he saw fit. This might include both corporal punishment and the use of junior members as a form of economic asset.

The register was also significant for commerce: It would show who was authorized to dispose of family assets, as well as an individual’s status within a particular house. This information could have financial significance. For example, an eldest son would be a lower credit risk since he could be expected to inherit the family property. The family register became a public document, a state of affairs that continued into the 1970s.

Elements of the ie system were fundamentally inconsistent with the postwar Constitution, which contains both a general egalitarian mandate and a clause specifically requiring gender equality and respect for the individual in family law. Amendments to the Civil Code and the koseki system were unavoidable.

The Americans governing occupied Japan had officially indicated that the Japanese were free to make such amendments to these laws as they thought appropriate so long as basic constitutional requirements were satisfied, which meant gender equality, marriage based on free will and the elimination of head-of-house status. This was not a clear mandate to completely excise the ie system from the Civil Code. Nevertheless, the Japanese drafting team apparently decided that such an approach would likely be viewed most favorably by the Americans.

However, what the Japanese did try to do was surreptitiously preserve elements of the ie system in case there was a desire to revive it after the Occupation (the subject was debated in the 1950s but nothing came of it). Their attempts focused on the Family Register Act rather than the Civil Code. The former being a mostly administrative statute that implemented the latter, the Japanese calculated that the Americans would stop paying attention once they were happy with the amendments to the Civil Code. They were wrong: Having been pleased to see the ie system formally excised from the Civil Code, the American authorities both noticed and objected to efforts to preserve it in the family register system.

In light of the individualistic principles of the new Constitution, the Americans actually advocated introducing a system that registered individuals rather than families. Using classic bureaucratic arguments (including insufficient paper!), the Japanese side held out for a family-based system. The Americans conceded but adamantly opposed any system that would enable three or more generations to appear in the same register, as this would have smacked of the ie system.

The result is the current koseki system, a compromise based not on individuals but on nuclear families: married couples and their children sharing the same surname. If a Japanese man and woman marry, they must establish a new register: 1+1=1. If they have a child it appears in that register: 1+1+1=1. If an unmarried Japanese woman has a child, she must establish a new register: 1+1=1. The same applies if she marries a foreigner and has a child (in family register math, non-Japanese equal zero). Japanese persons appearing in the same register are supposed to share the same surname; it’s part of the equation. If a woman gets divorced, she can revert to her parents’ register, but only if no children are involved.

The resulting system retains anachronisms that continue into the 21st century. Being rooted in marriage and surnames, it discriminates between children depending on whether they were born in or out of wedlock. Furthermore, since one purpose of the system is to identify family relationships so that government agencies and others can confirm who is responsible for whom, it is designed to minimize ambiguity. Parental authority over children is tightly linked to this system, with the Civil Code vesting it in mothers of children born out of wedlock, jointly in both parents during marriage, and in only one parent after divorce. Under this system the locus of parental authority should always be clear from the family registry.

The system is also laissez-faire. Most changes made to the family register are consensual and can be carried out with limited government interference — adoptions, dissolutions of adoptions, even many divorces. So long as a form indicating compliance is submitted, the authorities will accept it and the koseki will be amended to reflect the new status. About 90 percent of divorces, including many involving children, are made in this way, with no governmental oversight of custody arrangements. Even when parties can’t agree, the primary role of courts in the minority of cases in which they become involved is to convince parties to reach some consensual solution rather than to find facts or apply law. Since most resolutions are agreed to by the parties themselves (with or without court intervention), enforcement is something of an afterthought.

A Japanese lawyer recently related to me a consultation he had had with a young foreign man who had been living in his home country with his Japanese wife and their child. The wife took the child back to Japan for the summer and asked him to sign what she said was a school application. He could not read Japanese but signed. His wife and child never returned. When he tracked them down here, he discovered that he had signed a consensual divorce form awarding his (ex-)wife parental authority. Not only that, but his wife had since remarried and her new husband had adopted the child as his own (a common practice in Japan; otherwise the horrible anomaly of 1+1+1=2 — a man not sharing the same surname as or having parental authority over a child in his home — might arise).

This was essentially the same scenario that the other lawyer had enlightened me with using his formula, but it seems to be one that nobody implementing the Hague Convention here seems to have considered. Fundamentally, the Convention treats the parents and child as individuals, while Japanese family law still treats the family as a single unit and doesn’t handle fractions very well.

There are thus some very large gaps to bridge between the convention on the one hand and the Civil Code-family register combination on the other. The former does not distinguish based on the marital status of parents, their nationality or that of the child and is concerned primarily with the best interests of children. The latter is fundamentally rooted in marriage, the marital status of parents and Japanese nationality, all as they are reflected in the family register system. Furthermore, formal family law is largely unconcerned with the best interests of children because that would involve treating them as whole numbers and make consensual resolutions harder to achieve.

Finally, the convention is concerned with place: the child’s habitual residence. The family register system is not: Japanese nationals can register divorces, marriages or even adoptions (of other Japanese people) in their family register from abroad. Whether these transactions are valid in their country of residence is questionable, but the possibility of conflict seems obvious.

With the convention routinely and incorrectly described in Japan as being about “international divorces,” the process of bridging these gaps probably has a way to go. Certainly nobody here seems to have anticipated the possibility that cases seeking return under the Convention might involve families comprised entirely of Japanese nationals.

Of course, case resolutions will be where the rubber meets the road. The government hopes that most cases can be resolved amicably through mediation, whether through the courts or other organizations. (Full disclosure: I am registered as a mediator/arbitrator candidate with the Osaka Bar Association’s dispute resolution center.) Paradoxically, however, it is mediation and a focus on consensual results that contributed to Japan being an abduction haven in the first place — by allowing courts to remain involved while doing nothing affirmative for long enough that the child was settled in his or her new environment.

If mediation and the judicial process just end up being part of an exercise in “convincing foreign father to let the kids stay in Japan” (as one lawyer explained the need for mediation in such cases to me), then the whole process of Japan joining the dozens of other countries already party to the Hague Convention might add nothing to Japan’s family law equation.

Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Law of the Land appears on the third Thursday of the month. Comments and ideas: community@japantimes.co.jp