https://japantoday.com/category/national/Foreign-divorced-parents-fight-in-vain-for-child-custody-in-Japan?

 

Foreign divorced parents fight in vain for child custody in Japan

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By Karyn Nishimura-Poupee

Emmanuel, Stephane, Henrik and James come from very different backgrounds, but they share the same painful experience of battling Japan’s legal system — in vain — for access to their children after divorce.

Once married to Japanese women, they say they were prevented from contact with their children when their relationships disintegrated, sometimes even after court rulings in their favor.

Tough laws and patriarchal cultural norms that overwhelmingly see mothers granted sole custody after a divorce — 80 percent of the time, according to official figures — mean that fathers rarely see their children again.

Frenchman Emmanuel de Fournas has spent years battling for access to his daughter after his Japanese ex-wife moved back to Japan.

Despite winning a court order in France and filing a case under The Hague Convention on the Civil Aspects of International Child Abduction in September 2014, he is still fighting for the right to see his daughter.

“I thought I could benefit from the clear rules of The Hague Convention, but… they aren’t respected in Japan,” he told AFP.

“I’ve lost everything, my savings, my job,” he said tearfully. AFP was not able to contact the mother.

His experience is not unusual.

Henrik Teton from Canada and James Cook from the United States have similar stories to tell.

“What kind of justice system is it if decisions are not implemented? There is room to do more and better,” says Richard Yung, a French senator who came to Japan to plead the cases of several French parents.

Although Japan has signed The Hague Convention designed to prevent a parent from moving a child to another country and blocking access for the former partner, Tokyo demonstrates “a pattern of noncompliance” with the pact, according to the U.S. State Department.

For foreign parents, most often fathers, “this poses major problems, because they have a different mentality and they can’t comprehend losing custody or the right to visit their child,” said Nahoko Amemiya, a lawyer for the Tokyo Public Law office.

Even when foreign parents win their case in a Japanese court, enforcement is patchy.

The State Department’s 2018 report described “limitations” in Japanese law including requirements that “direct enforcement take place in the home and presence of the taking parent, that the child willingly leave with the taking parent, and that the child face no risk of psychological harm.”

With opinion divided on what causes the most trauma to children, the longer a child is separated from one parent, the more reluctant authorities are to intervene, citing a “principle of continuity”.

“It’s not that Japanese courts favor the Japanese parent, it’s that they favor the ‘kidnapper,'” who is living with the child, said John Gomez, founder of the group Kizuna, which advocates for parents separated from their children.

Japan’s government defends its record, saying most of the 81 cases filed under The Hague Convention since 2014 have been settled.

“The majority of the cases in which we intervened have been resolved, but we are aware of six or seven where the return decision could not be implemented,” said Shuji Zushi, a foreign ministry official.

“In these cases, there is a very strong conflict between the two sides and that leads to media attention or political action,” he said.

Stephane Lambert spent years fighting to see his son after his wife and child moved away from their home in Japan — a case not covered by The Hague convention.

“The Japanese police don’t do anything in this kind of case,” he said. “On the basis of a court ruling, I saw my son for a total of 14 hours for the whole of the following year, and not at all after that, because my wife refused the visits. I can’t think about my son anymore. Looking at a photo of him tears me apart. I’ve learned to forget him.”

There are some signs of change: a panel of experts met in June to discuss new ways to enforce court orders, as well as the issue of joint custody and changes to the law.

But regardless of changes to the law, the pain of parental separation is always traumatic — as demonstrated by the case of Joichiro Yamada, who was 10 when his Japanese father and American mother split up.

“My dad told me: You live with me now,” the 20-year-old told AFP, crying at the “horrible shock” of being separated from his mother. “I spent a year with him. I wanted to go back to my mother. A year felt like an eternity.”

© 2018 AFP

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https://www.japantimes.co.jp/news/2018/09/01/national/justice-panel-drafts-rules-facilitate-child-custody-exchanges/#.W4ypAi2ZNsM

Justice panel drafts rules to facilitate child custody exchanges

JIJI

SEP 1, 2018

The Justice Ministry’s legislative council subcommittee on Friday drafted rules to facilitate child custody exchanges between divorced parents, including greater power for enforcement officers.

The panel compiled the draft in response to several cases in which custody exchanges did not succeed due to uncooperative parents who lost guardianship rights.

In 2017, handovers took place in only 35 of the 106 cases where such requests were filed, according to the Supreme Court.

Enforcement officers acting on court orders have little recourse when parents stripped of custody rights refuse to cooperate, sources familiar with the matter said.

After the panel’s rules are submitted to the justice minister, the government plans to present a bill to revise the law to the extraordinary Diet session expected to be convened in the fall.

There is no legal provision to force parents who are divorced or separated to handover children. Children are handed back to enforcement officers in the presence of the parent who lost custody but is living with them.

The rules call for giving more power to enforcement officers and allowing handovers to take place only in the presence of parents with custody rights, on condition sufficient consideration is paid to the sentiment of the children.

To help, the panel also called a legal revision to implement the Hague Convention on the Civil Aspects of International Child Abduction, which is used to settle cross-border custody disputes arising from breakups of international marriages.

 

https://asia.nikkei.com/Politics/Parental-child-abduction-places-Japan-on-blacklist

Parental child abduction places Japan on blacklist

Different views on family hamper compliance with Hague convention

The U.S. State department noted in a May report that Japan has no effective means of enforcing the Hague Abduction Convention, which leads to a pattern of noncompliance. (Photo by Wataru Ito) 

TOKYO — Japan is facing criticism over noncompliance with an international treaty that sets rules for cross-border parental child abductions as the government is slow to enforce court orders on its own citizens who have taken their children to escape overseas custody battles.

Japan was among the 12 nations singled out in a U.S. report in May for “demonstrating a pattern of noncompliance” with the Hague Convention on the Civil Aspects of International Child Abduction.

As criticism grows amid the rise in international marriages, the country is being forced to rethink its traditional family views that assume that children should stay with their mothers.

Japan, which appeared on the list for the first time, is accused of not having effective measures to enforce court orders demanding that abducting parents return children to the countries where they previously resided.

Despite the “measurable progress” Japan has made on international parental child abduction, “in cases where taking parents refused to comply with court return orders, there were no effective means to enforce the order, resulting in a pattern of noncompliance,” the U.S. State Department report says.

Japan is the only Group of Seven country among the 12, which also includes China, India, Brazil and Argentina.

Since the Hague Abduction Convention came into force in 1983, a total of 98 countries have joined the treaty. It is aimed at facilitating the return of children removed from their “habitual residence” in violation of custody agreements.

 

 

 

https://mainichi.jp/english/articles/20180718/p2g/00m/0fp/001000c

Japanese high court orders mother to return son to father in US

NAGOYA (Kyodo) — A high court in central Japan ordered a woman on Tuesday to return her son to his father in the United States, saying her failure to comply with an international convention on child abduction is illegal.

The Nagoya High Court ruled in favor of the father in a dispute between parents, who are both Japanese, over the custody of their American-born son who was brought to Japan by his mother without the father’s consent in 2016.

Presiding Judge Hisashi Toda of the high court said although the son “claims he wants to stay in Japan, he has been living in the country being largely dependent on his mother, who wields illegal psychological influence on him.”

The mother had been ordered by the Tokyo Family Court to return the son to the United States based on the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

But she ignored the order, prompting the father to file a habeas corpus appeal with the high court’s Kanazawa branch.

The high court branch rejected his claim last November, saying, “Custody transfer would go against the son’s will.”

However, the Supreme Court in March overturned the ruling, saying it sees “clear illegality” in the mother’s failure to comply with the order, and sent the case back to the high court.

The Hague treaty sets out rules and procedures for the prompt return to the country of habitual residence of children under 16 taken or retained by one parent as a result of failed marriages, if requested by the other parent. Japan joined the convention in 2014.

 

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.

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.

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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.

https://japantoday.com/category/national/update1-enforcement-measures-eyed-to-settle-child-custody-battles

 

Enforcement measures eyed to settle child custody battles

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An advisory panel to the Japanese Justice Ministry has proposed that measures be enforced on divorced parents who take custody of their children against a court order to pay fines.

If the parents continue to refuse to let the children go, court officials will be entitled to take away the children, the panel said in an interim report on the reform of the nation’s child custody system.

The proposal has been made at a time when critics say there is inconsistency on the state’s handling of such disputes between domestic and international marriages as the latter were already subject to rules of the so-called Hague treaty.

Japan in 2014 acceded to the Hague Convention on the Civil Aspects of International Child Abduction, which sets out rules and procedures for the prompt return to the country of habitual residence of children under 16 taken or retained by one parent, if requested by the other parent.

The Justice Ministry plans to solicit public comments on the report later this month. After reporting the outcome to the panel, the ministry is expected to submit a bill to revise the civil execution law to the Diet in 2018 at the earliest.

There is currently no stipulation in Japan’s legal system regarding parents who do not abide by a court order to give away children to their former marital partners. Such disputes have been handled based on regulations regarding the seizure of assets.

According to the proposal in the interim report, divorced parents who refuse to give away their children in defiance of a court order will be fined until their surrender to encourage them to voluntarily abide by the court decision.

If the parents continue to ignore the court order for two weeks, court officials will be allowed to take away the children and put them in the hands of the other parents.

If divorced parents fail to pay expenses to raise children, the report also proposes enabling courts to make inquiries to financial institutions on information about such parents’ financial assets.

© KYODO