http://ajw.asahi.com/article/behind_news/social_affairs/AJ201206080014

 

INTERNATIONAL MARRIAGE: Changing Japan as a safe haven for parental abductions

June 08, 2012

By HIROSHI MATSUBARA/ AJW Staff Writer

In February, 61-year-old Masahiro Yoshida was arrested for “abducting” his 7-year-old daughter from her elementary school in Ehime Prefecture the month before.

It marked the second time that Yoshida, a former professional jazz drummer, was driven to desperation and snatched his daughter, since his ex-wife has parental custody over his daughter, and he is not allowed to have any contact with her.

In Japan, courts do not recognize shared custody, and mothers retain custody in about 90 percent of court-mediated divorces involving minors.

In response to mounting criticism that Japan is a safe haven for parental abductions, the government finally submitted a bill to ratify the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which provides for the return of unlawfully abducted children.

The legislation is unlikely to pass in the current Diet session, as deliberations of controversial bills to hike the consumption tax are taking center stage. But if enacted, the convention, which has 87 signatory countries, will mandate that Japan return children whom its nationals took from other countries in a divorce, unless it harms the child’s welfare.

The public’s perception in Japan is that such post-divorce disputes are taking place only between Japanese mothers and fathers from Western countries. But many Japanese parents now claim that the justice system here is equally tormenting those who lost custody over their children following a divorce.

The case involving Yoshida has much in common with the well-publicized arrest of an American man in 2009 after attempting to abduct his son and daughter and flee to the U.S. Consulate in Fukuoka.

According to Yoshida’s mother, Michiko, an 87-year-old former liquor store operator in Yokohama, it was her daughter-in-law who “abducted” her grandchild five years ago in an attempt to gain parental custody.

Michiko’s son is currently on trial at the Matsuyama District Court.

As Masahiro is likely to be given a prison sentence this time, Michiko said there must be fundamental flaws in the country’s justice system, which made her son a “criminal for just wanting to see his daughter.”

 

IS “GAIATSU” LAST RESORT?

 

In a nearly identical case, former family court judge Masanori Watanabe, 53, was arrested for abducting his daughter, then an elementary school third-grader, from a train station in Fukuoka in October 2005.

Watanabe, then a Yokohama-based lawyer, was subsequently given a suspended three-year prison sentence, dismissed from the bar association and cannot practice law.

“I certainly knew the consequences, but I thought it was my last opportunity to persuade her to come back to me when she becomes old enough to make her own judgments,” Watanabe said.

While waging court battles to gain custody of or visitation rights to their children, Yoshida and Watanabe campaigned for the Hague Convention, which they thought would help their causes.

“The convention means Japan’s last chance to review its cruel tradition to completely dismiss one parent’s right over children after divorce,” Watanabe said. “It is also my last resort to clear my name as a kidnapper.”

While the convention does not directly affect Japan-based families, Japanese and foreign parents here who lost custody pin hopes on their hopeful “gaiatsu,” or foreign pressure, scenario.

Lawyer Mikiko Otani, a member of the Legislative Council of the Ministry of Justice on the Hague Convention, said ratification will bring positive changes to the family courts here, which will examine and rule whether to return a child in accordance with the convention.

The family courts will need to examine and rule on what types of child-taking are unlawful and what serves as the best interest of children in ways that are convincing to foreign authorities.

If the expatriation of children becomes a common practice, courts need to break free from traditional reluctance in using force in family conflict cases. It will discourage parents from simply taking away their children, even by force, as is widely occurring today, she added.

“Ultimately, Japan will need to approve a form of shared custody, which is the norm in most of the countries that are signatory to the convention,” Otani said.

But gaiatsu inevitably draws a backlash. To the relief of Japanese parents who flee with their children from overseas, the proposed domestic legislation to set court procedures for a child’s repatriation sets strict criteria for judges to do so.

The vaguest and most potentially controversial clause among the six requirements is that courts need to ensure there will be no possibility that the concerned child suffers “physical or psychological” abuse once returned.

“Can courts expatriate its nationals, minors, over public opinion? I don’t think that can happen,” said a Japanese mother who fought a lengthy, exhausting court battle in Australia with her ex-husband over custody of their two children.

 

BACKLASH FOR CHANGE

 

Interestingly, parties opposing the convention, and moves that can lead to the idea of shared custody, include both those from conservative and liberal camps.

Conservatives say that the single custody system is vital to maintaining the integrity of “koseki,” or Japan’s family registry system.

Kensuke Onuki, a lawyer who has represented Japanese mothers who have brought their children to Japan, agrees that one of the divorced parents must back away, in order to make a child’s new environment more stable.

“I don’t think many Japanese can stand the Western way of communication between children and their divorced parents, in which both parents participate in their children’s growing-up process,” Onuki said.

A head of a parents’ group seeking visitation rights said that even many of its group members, mostly fathers, will find it too burdening to fulfill shared custody, given the limited roles they played in child-rearing before their divorce.

Recalling his days on a family court bench in the mid-1990s, ex-judge Watanabe expressed regret that he and his colleagues had no doubts that it serves the interests of children to grant custody to their mothers.

He added that judges believe that courts must respect women’s parental rights, because it was historically denied to them and they had to gain them through postwar feminism.

“I also remember my boss telling me that the court should give men a ‘free hand’ to start a new life by eliminating responsibility to raise their children, and I really did not find much wrong with it,” Watanabe said.

“Now I know how painful, how cruel it is for a parent, regardless of the mother or father, to have their access denied.”

Watanabe added that he knows that the signing of the Hague Convention may be just the beginning of change for Japanese society.

“But I won’t give up, because this is the only way left for me to show my love for my daughter,” he said.

By HIROSHI MATSUBARA/ AJW Staff Writer

This article from the Japan Times online provides an excellent update regarding the status of the Hague treaty being enacted by Japan. 

The article notes that before the Hague treaty can become effective, it still must be passed by the Diet.  Other related bills need to be drafted and passed by the Diet as well, despite widespread opposition to the treaty.  The treaty will not be retroactive to current cases. 

The article mentions the following statistics that the Japanese Foreign Ministry is officially admitting to as being currently active cases “involving Japanese spouses who took their children to Japan” from the following four countries:

U.S.:     100 cases

U.K.:      38 cases

Canada:  37 cases

France:   30 cases

http://search.japantimes.co.jp/cgi-bin/nn20110607i1.html

Tuesday, June 7, 2011

FYI

THE HAGUE TREATY

Hague treaty seeks to balance rights of kids, parents

By MASAMI ITO

Staff writer

Prime Minister Naoto Kan’s administration said in May it would establish legislation as part of preparations for Japan joining an international convention to prevent cross-border abductions of children by their parents.

Despite international pressure to sign the 1980 Hague Convention on the Civil Aspects of International Child Abduction, Japan had been reluctant amid strong opposition from politicians in the ruling and opposition parties, experts and Japanese mothers who took their children to Japan after failed international marriages.

Japan’s decision was welcomed by the international community, but it is still unclear whether the country will actually be able to sign the treaty anytime soon.

What does the treaty entail?

The Hague treaty aims “to secure the prompt return of children wrongfully removed to or retained in” a member state. The treaty covers children up to age 15.

A typical example of what the treaty tries to address would be a case in which an international marriage has failed and one of the spouses takes offspring out of the country where the child has been living without the consent of the other parent. Such a physical removal may also be in defiance of a court custody decision, such as in cases of divorce when both estranged spouses have certain custody and visitation rights.

If offspring are spirited away from a country, the parent who thus lost custody would file an abduction complaint with the government, or “central authority” that handles such matters.

If both the nation that the offspring are removed from and the one they are taken to are Hague signatories, the designated central authorities of the two nations would seek to ensure the safe return of the child to its “habitual residence.”

But if the nation where offspring are taken to is not a member of the treaty, such as Japan, it is not obliged to hand over the offspring. This can cause bilateral friction on a political level, and also lead to charges of felony abduction being leveled at the parent who took the child or children away.

As of April, the treaty had 85 signatories, including Australia, Brazil, New Zealand, South Africa and Spain. Of the Group of Eight countries, only Japan and Russia have refused to join.

What prompted Japan to move toward joining the Hague treaty?

Although not the first child abduction case involving a Japanese parent, an incident in September 2009 brought Japan’s stance on the issue into the international spotlight.

Christopher Savoie of Tennessee came to Japan to reclaim his children from his Japanese ex-wife, who had brought them to the country without permission.

Savoie was arrested by Japanese police for allegedly attempting to “kidnap” minors, but prosecutors didn’t file criminal charges against him. The case was widely reported by both the foreign and Japanese media and became a bilateral diplomatic headache.

International pressure to sign the Hague treaty has increased since then.

According to the Foreign Ministry, there are 100 cases involving Japanese spouses who took their children to Japan from the U.S., 38 who brought offspring here from the U.K., 37 from Canada and 30 from France. But these are just the numbers reported to the ministry. The actual number is believed to be higher and to stretch back many years.

Why has Japan been reluctant to sign the treaty?

The government feared that Japanese mothers who claimed to have been victims of domestic violence would be forced to return their children to the abusive environments they fled from.

“If Japan were to sign the Hague Convention, (my child would) be forced to live with an abusive father and be exposed to violence again,” said a women who attended a government panel discussion on the Hague treaty in March. “And I will become a (declared) criminal.”

The Hague treaty in principle is geared toward returning offspring to their country of habitual residence.

Cultural and legal differences have also been noted, as many Western countries have a joint-custody system. Japan uses a system that grants sole custody, usually to the mother.

Are there circumstances under which a child is not returned to the country of residence?

-Article 13 also says a state is not obligated to return a child if “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.”

But experts have pointed out that the clause is vague and opponents argue that it does not include abuse against mothers.

According to the data collected by the Hague Conference on Private International Law released in 2008, only 20 percent of all global return applications were either rejected or judicially refused.

How will Japan address the strong concern about cases of domestic violence?

The outline of a draft bill approved by the Cabinet stipulates that the return of the child will be denied if the child has experienced physical or verbal abuse “and is in danger of being subjected to further abuse if returned to its habitual residence.”

In addition, the child will not be returned if the spouse has been the victim of “violence that caused the child to suffer from psychological trauma” and that the parent was in danger of further abuse if he or she returns with the child back to the country the offspring was taken from.

Experts, however, noted that the conditions for rejecting the return are extremely strict.

“The draft lists various conditions, not making it easy for the spouse to claim domestic violence to make sure that the child would not be returned,” attorney Mikiko Otani said. “And the parent would also need to prove that there was domestic violence.”

What are the positive aspects of Japan joining the treaty?

There are Japanese parents whose children have been taken away to another country by their ex-spouses. Japan, not being party to the treaty, has been powerless to rectify these situations.

Otani, an expert on family law, pointed out that there are many cases in which the ex-spouse is from a member country of the convention and that government has the responsibility to deal with these international parental kidnapping cases.

In Japan, the responsibility falls on the individual because Tokyo has not signed the treaty.

Otani also expressed concern that if Japan continues to delay joining the treaty, other member states will take harsher measures.

In the U.S., for example, several Japanese mothers are on the FBI website, wanted for “parental kidnapping.”

“I think it comes down to the fact that the Hague treaty is the active international rule,” Otani said. “If Japan refuses to join the convention, all the (member states) can do is make sure that the children cannot be taken out of their countries. They already have a tendency to do so, but I think they will make it even harder for the children to leave.”

In many cases, court orders are issued ordering the child not to leave the country.

Does this mean that Japan will immediately conclude the convention?

No. Even if the Japan signs the treaty, it needs Diet ratification. Related bills must also be drafted and passed.

According to the draft legislation, the “central authority” will be the Foreign Ministry, which will be in charge of overseeing cases related to the Hague treaty, including locating abducted children, taking measures to prevent child abuse and advising parents on the voluntary return of children.

But there is still strong domestic opposition among the public, as well as in both the ruling and opposition camps, and it is unclear how soon Japan will be able to conclude the treaty and enact related domestic laws.

If Japan joins the treaty, would it apply to current cases?

No. The treaty will only apply to cases that are brought against Japan after it signs the Hague Convention. Experts say it will be up to the government to decide how to handle the cases that occurred before Japan signs the treaty.

Otani pointed out that there were cases in which the mothers eventually want their children to make the most of their dual nationality, such as visiting the country they were taken away from, but can’t for various reasons, including the mother’s fear of being arrested if she were to accompany the offspring to a nation where she is listed as a fugitive.

“It may be impossible to resolve all cases or return the children, but there may be some fathers who would just be happy to be able to have access to their children,” Otani said. “The benefits of these children are being robbed . . . and I think that it is necessary to establish a (bilateral) scheme for those who want to resolve their case so that the children” can visit both countries freely.

The Weekly FYI appears Tuesdays. Readers are encouraged to send ideas, questions and opinions to hodobu@japantimes.co.jp

Here is a series of articles that have come out in the Japan Times which largely defend parents facing international arrest warrants for kidnapping children to Japan and argue against Japan joining the Hague Convention or following policies such as joint custody and joint parenting that would enable children to have access to both parents:

http://search.japantimes.co.jp/cgi-bin/nn20100514f1.html

 http://search.japantimes.co.jp/cgi-bin/nn20100514f2.html

http://search.japantimes.co.jp/cgi-bin/nn20100514f3.html

Below is a translation from the Sept. 3 Mainichi Newspaper about Japanese children being kidnapped from Japan and the lack of recourse parents have because of Japan not being a signatory to the Hague Convention:

Marital Breakup and Child Abduction in Japan

7 million yen (US$76,000) to return child

Japan has not ratified the Hague Convention

No Conflict Resolution

9 cases since 2001

A specialist says this is only a small part of the problem. There are many child abductions to one parent’s home country after an international marriage falls apart and a child custody battle ensues. Because Japan has not ratified the Hague Convention, the left behind parent gets little assistance from that parent’s home country and is forced to spend large amount of money on lawyers fees to seek the return of their child. However, this is only a small part of the problem as many cases go unreported.

Mikiko Otani, of The Japanese Bar Association of Attorneys at Law of the Committee on Family Law. Legislation Japan Federation of Bar Associations, has investigated child abduction cases from the past. Since 2001, there have been 9 cases involving 12 children that were born in Japan and abducted overseas by the other parent.

To U.S.: 5 children
To Philippines: 3 children
To U.K.: 2 children
To Pakistan: 1 child
To Brazil: 1 child

An English father abducted his 2 children to England without his (Japanese) wife’s permission. If he had divorced in Japan, his wife would get custody of the children and he would never see his children again.

In another case, a Filipino mother abducted her children during the mediation proceedings. A Pakistani father returned to Pakistan with his child. He said he wanted his child to be raised in an Islamic culture, and he has not returned to Japan since.

Japan has not ratified the Hague Convention.

The left behind parent has only one choice, which is to hire a lawyer overseas. One Japanese parent spent 7 million yen to return child back to Japan.

American, British, Canadian and French consuls report 168 active child abduction cases to Japan. They have publicly requested the Japanese government to ratify the Hague Convention.

Before, Japan is accused as being the victimizer. Now, Japan is also a
victim.

Mikiko Otani said, as a result of divorce, some of the children end up developing mental problems. Japan does not have enough lawyers knowledgeable about such cases. Many of the cases are left unsolved. And the 9 cases is only a small part of the problem.

Mainichi Newspaper
September 3, 2009

Translated by Masako Akeo Suzuki