New paper by Colin Jones
August 5, 2013
http://law.nus.edu.sg/asli/working_paper_d.aspx?sno=WPS031
ASLI Working Paper Series
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Update on Paul Dalley case
June 10, 2013
The following update has been received from Paul Dalley regarding his international child abduction case.
International Japanese Child Kidnapping Case
committed to Supreme Court
as children’s rights continue to be abused
On Wednesday 5th June 2013 the dramatic attempted case of international child kidnapping by Japanese national’s UNELCO consultant Japanese national Toshihide Yasuda of New Caledonia and Yuka Dalley of Santo took another pivotal step as the Majestrate’s Court upon reviewing all the evidence agreed with the Police Public Prosecutor that there is enough evidence to warrant a criminal trial and committed the case to the Supreme Court. On 17th April 2013 Yasuda and Yuka were charged by the Public Prosecutor with attempted kidnapping for arranging to take the father’s two small children first to New Caledonia and then on to Japan where the children would forever have lost their father. The failed attempt on 29/3/13 was stopped by the Santo police from which Yuka fled with the son the next day to Vila abandoning her daughter in Santo. Among the evidence presented was 58 emails, Digicell text messages, a Western Union money transfer, hotel accommodation receipts and international air tickets all paid for by Toshihide Yasuda who himself is married. The Supreme Court will hear the plea on July 4th 2013.
There is a growing worldwide problem of Japanese nationals in international marriages suddenly kidnapping children back to Japan which refuses to return the abducted children back to their non-Japanese parents. Some sources claim over 10,000 children’s lives have been destroyed in the process. Unlike Vanuatu’s equalitarian Christian culture which promotes a legal system of sharing and compromise, Japanese culture is heirachical with a legal system that promotes complete domination by one side over the other. As well as causing all sorts of problems with their Chinese and Korean neighbours who are still resentful of the millions kidnapped by the Japanese during the war, this policy directly hurts families and their weakest members, the children. An example of this is Japan’s outdated and much criticized feudal ‘koseki’ family registration system which prohibits sharing of children in broken families and virtually guarantees in the case of split families that the children will lose one of their parents despite the psychological scaring this causes.
The kiwi father Paul Dalley, famous up in Santo for his tourist and rescue flying in his unique seaplane was very grateful that Vanuatu’s Christian laws continue to protect the children in Vanuatu. “For too long foreigners come to Vanuatu and believe that they are above the Christian laws of this wonderful nation and that they can behave as this wish and apply the mindsets that prevail in their countries such as lying, hiding from the police and denying children access to both parents. Thankfully the racist Japanese laws that promote child abduction and the archaic notion that children are simply the chattel of the Japanese parent do not apply here. In this democratic and independent nation founded on the Christian Principles we are legally and morally bound to follow her laws and conventions such as the International Convention on the Rights of Children, ratified by Vanuatu in 1992, which stipulates in Article 9 Section 3 “State Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis.”
Sources close to the case report that the mother has continually denied her children access to their father, including both hiding them in a Port Vila house as well as hiding the school she put one of the children in. Despite neither parent having custody of the children the mother is still illegally trying to prevent them returning to their home and schools and friends in Santo from where they were ripped over 70 days ago when in a dramatic inter-island pursuit the mother fled from Santo police whose quick actions in pursuing her to Vila prevented her departing the country. To pay for legal bills the father has been forced to put his Santo aviation business, seaplane and car on sale to save his children who are stuck in a legal void in Vila.
Based on his ten year’s living in Japan the father’s greatest concern is trying to save his children from a future life of bullying in Japan due to their mixed race heritage which is severely discriminated against in homogeneous Japan where such children endure a life of racial bullying as they are know as ‘halfs.’ This bullying is so harsh that it is a well known social problem called ‘ijime”and causes Japan to have one of the worlds worst child suicide rates .
The father has spent weeks pleading not only with the police, courts, church groups and family protection advocates for the return of the children to their Santo home. In desperation at the children continually being denied their legal right to be with their father Paul this weekend was moved by the Holy Spirit to take to the streets and churches with his Christian message of ‘Equal Sharing, Equal Caring.”
Paul comments “All children deserve equal time and equal love with both their parents. All I have been trying to do since this nightmare began is return the children to their Santo home to allow both parents exactly equal 50/50 with their children until the Supreme Court determines the results of the criminal case and allocates permanent custody. The only fair solution for the children is Jesus Christ’s policy of “Do unto other’s as you would have them do unto you” and allow the children Equal Shared Custody. This would allow the children to return to their Santo home and schools for two weeks a month and then spend two weeks with their mother in Vila. Surely allowing the children to return to their home in Santo and play on the Santo beaches is better than keeping them virtually imprisoned behind these Vila bars? As Ghandi, Mandela and Jesus Christ courageously demonstrated during their long struggles for freedom one should always push with 100% of ones energy for solutions that are fair and reasonable to all – especially to children who deserve equal time and equal love from both parents.”
http://mainichi.jp/english/english/newsselect/news/20130423p2g00m0dm079000c.html
Lower house OKs Japan’s ratification of int’l child custody pact
TOKYO (Kyodo) — The House of Representatives on Tuesday unanimously approved Japan’s ratification of an international treaty to help settle cross-border child custody disputes, paving the way for passage through the Diet in late May.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction sets out the rules and procedures for the prompt return of children under 16, taken or retained by one parent following the failure of an international marriage, to the country of their habitual residence if requested by the other parent.
The lower chamber is set to endorse a bill stipulating the domestic process for the children to return to their habitual residence soon, setting the stage for the legislation to clear the Diet in late May with approval by the House of Councillors
Japan’s Constitution stipulates that a treaty will be given Diet approval when the upper house does not vote on it within 30 days as the lower house has more power.
A central authority to be established in the Foreign Ministry will locate children upon request. It will ask for the cooperation of local governments and police when necessary.
Exemptions for returning a child will be given in cases of child abuse or domestic violence, according to the bill.
Japan is the only one among the Group of Eight nations yet to join the pact that has 89 signatories. The G-8 comprises Britain, Canada, France, Germany, Italy, Japan, Russia and the United States.
The United States, Japan’s key ally, has been urging Tokyo to join the treaty as soon as possible, and Japanese Prime Minister Shinzo Abe told U.S. President Barack Obama in February that Japan is close to participating in the treaty.
April 23, 2013(Mainichi Japan)
NATIONAL
Film sheds light on plight of left-behind parents
BY MASAMI ITO
STAFF WRITER
APR 17, 2013
ARTICLE HISTORY
PRINT SHARE
Images of left-behind parents, holding up photos of their children, flash across the screen. In the United States, Canada, Europe and even Japan, these parents are waiting to reunite with offspring taken away by their estranged Japanese spouses.
The documentary film “From The Shadows,” completed last December, features five left-behind parents and their struggles to reconnect with their children.
During a recent interview with The Japan Times, producer and director David Hearn stressed that he was motivated to make the film to raise awareness and understanding.
In the 6½ years it took to make the film, Hearn and his coproducer and codirector, Matthew Antell, traveled to five countries, including Japan, to chronicle the parents’ torments.
“When you get to meet left-behind parents and know more about them, you can feel the kind of pain and heartache they experience. These parents are not different from you or me, they are real, imperfect, but always loving and desperate to reconnect with their own children,” Hearn said.
“Their relationship with their children fulfills their identity, who they are and without it they are often shattered.”
Regan Suzuki, Paul Toland and Paul Wong from the U.S., Murray Wood from Canada and Rina Furuichi from Japan, the parents in the film, all have had their children taken away by a Japanese spouse or relatives of the estranged spouse, and all have effectively had no contact with their sons and daughters.
These cases are only the tip of the iceberg. Many left-behind parents have spent years trying to reconnect with children who have been taken to Japan from abroad. Toland, for example, has been forced to live apart from his daughter, who was only 9 months old at the time his then-wife took her in 2003. Wood has been separated from his two children since November 2004, when they were just elementary school students.
“When kids need parents is when they’re growing up. They need me now,” Wood says in the film. “They need their dad to help them go from where they are now to solid, confident adults who have the best chance that they possibly can to be successful in life. That’s what they need, that’s what my job is.”
Some of the fathers, including Wood, take the desperate step of approaching their children as they walk to school. Although Wood succeeds, the lack of contact over the years makes their reunion heartbreakingly awkward as Wood struggles to interact with his son and daughter.
Hearn, who as a child was himself caught in the middle of a bruising custody battle between his parents, encourages left-behind parents to reach out to their children, to let them know that they haven’t been forgotten. The director recalled the awkward interactions when his father started showing up at his sporting events, but he was grateful for the man’s efforts, even though they didn’t have much to say to each other.
“For children who are growing up, learning and developing, the sudden loss of one parent can be devastating. I was lucky because losing one of my parents was never a consideration when my parents had their custody battle, but for children in Japan, if a custody battle occurs, it often means that they will lose contact with one parent,” Hearn said. “We find it unacceptable that this result is the best we can do for our kids.”
The underlying problem for many cases is Japan’s refusal to join The Hague Convention on the Civil Aspects of International Child Abduction. The treaty aims to prevent cross-border kidnappings by parents and to secure the swift return of children wrongfully taken or who are being held in any member state.
After years of international criticism, the government is finally poised to join the 89 other member states, if the Diet approves related bills as early as next month.
Japan is also the only Group of Eight nation that has yet to sign on to the treaty.
Many such abductions are in defiance of court rulings on child custody and visitation rights handed down in other countries that had been the offsprings’ nation of domicile, as well as the nation where they were born. Thus when a ruling is violated by an apparent flight to another country, the spouse could be subject to a fugitive arrest warrant.
Strong domestic opposition, however, remains.
Many Japanese mothers, for example, claim domestic violence prompted them to take the children to Japan in the first place. And Japanese authorities have repeatedly stressed that in such cases, children will not be sent back regardless of the convention.
Left-behind parents, however, feel this argument could be an easy justification for courts in Japan to side with the alleged abused party and not return their children.
“I’m worried because there are plenty of signatory countries all over the world (whose) compliance record can be very up or down,” Hearn said. “My worry is that Japan signs but nothing really changes. But I hope I’m wrong.”
Some experts and foreign officials have also questioned the effectiveness of Japan’s participation, citing not only the sole-custody law but also the custom of not proactively supporting visitation rights for noncustodial parents.
According to Japanese family courts, there were 409 cases of parents seeking the return of their abducted children in 2001 — a number that jumped to 1,985 by 2011. Experts point out that undoubtedly many more cases exist because these numbers reflect only those cases that have been acknowledged by the courts.
Hearn, along with many left-behind parents, expressed guarded optimism about Japan’s readiness to comply with the treaty.
“We are aware that signing The Hague Convention will not cure everything because there will continue to be situations that are difficult to handle,” Hearn said. “But if signing the treaty accomplishes one thing, we hope that it will create a situation where more relationships between children and their parents are kept intact.”
For more information, visit fromtheshadowsmovie.com.
New Zealand case
April 12, 2013
http://www.dailypost.vu/content/custody-battle-turns-nasty-between-kiwi-and-japanese-wife
Custody battle turns nasty between Kiwi and Japanese wife
Posted on April 8, 2013 – 9:52am | Category: Local News
By Marc Neil – Jones
Custody battles can deeply affect children and a failed marriage in Vanuatu is turning nasty with police charges of child kidnap at the centre of a battle between a New Zealand male and his Japanese wife in Santo.
Any expatriate couple with kids living in a foreign country goes through the turmoil of child separation in a split up but it is particularly a concern when it involves a Japanese national and children as Japan is not a signatory to the 1980 Hague Convention on Civil Aspects of International Child Abduction which obliges signatories to promptly return abducted children to their country of habitual residence.
Critics of the Japanese legal system say this refusal has the practical effect of facilitating international child abduction. The issue has become a cause for significant concern to signatory nations, the majority of which are Western countries. Japanese family law considers issues of divorce custody, child support or alimony as predominantly private matters. Consequently, Japan has no enforcement mechanism to enforce foreign custody rulings or recommendations made by its own domestic courts. Furthermore, Japan does not recognise joint parental authority or shared “residence” after divorce.
This in effect means a Japanese mother taking her children to Japan in defiance of visitation or joint custody orders issued by Western courts will have no action taken by the Japanese courts. A father wanting to see his children needs the wife’s permission and if this is not given can have devastating consequences for parents if they cannot see their children again.
Paul Dalley, aged 39, a New Zealand businessman running a seaplane business in Santo, has filed a police complaint with evidence including emails, bank transfers, and airline tickets that Santo police have now acted upon alleging that his wife Yuka Dalley and a Japanese businessman working for Unelco living in New Caledonia had allegedly conspired to kidnap their two children aged 10 months and three years to remove them from Vanuatu over to Japan so he would not be able to see them again.
Dalley states he managed to get the three year old girl to a safe place with Ni Vanuatu friends before contacting the police. The alleged kidnapping attempt was foiled by Dalley working with Santo police who travelled to Vila to arrest her with the youngest child at the Melanesian Hotel which is owned by Japanese and where she was allegedly staying under an assumed name waiting for Unelco consultant Toshida Yasuda from New Caledonia who Dalley alleges is also implicated.
Dalley advised Daily Post that his wife Yuka Dalley has now been reportedly charged with kidnap and police want to interview Toshida Yasuda who is alleged to be in Port Vila.
The Japanese woman has also charged her husband with Intentional Assault and Threatening Behaviour.
Police are still investigating the case and a court date is yet to be set.
Please sign new White House petition
January 23, 2013
WE PETITION THE OBAMA ADMINISTRATION TO:
Bring back the 374 American children who have been kidnapped to Japan!
Over 374 American children have been kidnapped to Japan. Most of these children were too young or too scared to have a voice and contact their American parent. My knowledge comes from BacHome.org, my Son and, the other Parents of Kidnapped Children (PKC) We will not stop until we get our government’s help to bring our children home.
ジャックコロー １１月２０１０年 from kingyochingyo on Vimeo.
Sad commentary on attitudes of the Japanese system, the law enforcement system in particular, towards peaceful, kind-hearted left-behind parents who go through tremendous efforts to try to reach out to their children. It is obvious how uncomfortable the law enforcement is with this issue, to the point that it interrupts the filming of this complete event.
http://www.japantimes.co.jp/text/nn20130104f2.html
Friday, Jan. 4, 2013
Child custody injustices hard to fix
Joining Hague may curb parental abductions if legal mindset evolves
By MASAMI ITO
Staff writer
On May 6, 2010, Yasuyuki Watanabe, an internal affairs ministry bureaucrat, came home to find his wife and 2-year old daughter gone, along with their clothes.
Playing catchup: Yasuyuki Watanabe, deputy mayor of Nasushiobara, Tochigi Prefecture, speaks during an interview at a Tokyo hotel on Dec. 11. SATOKO KAWASAKI
His wife had spirited away their daughter near the end of Golden Week, just days after he was enjoying the holidays taking her on hikes and to local festivals, recalled Watanabe, 40, now deputy mayor of Nasushiobara, Tochigi Prefecture. He recounted how he carried his daughter on his back and how they sang songs together until she fell asleep, snuggling against him.
His world was turned upside down that fateful day. Last month she turned 5.
"It is so important for children to feel loved by both parents, especially when they are growing up, and I think that my daughter feels abandoned by me, that I left her because I didn't love her anymore," Watanabe told The Japan Times during a recent interview in Tokyo. "The most painful thing about my situation is when I think about how my daughter must be feeling."
Watanabe is one of many parents in Japan who have been torn away from their children after a falling-out with their spouse in a nation that grants only sole custody, usually to the mother, and where it is customary for parents not living with their offspring, to have little, if any, contact with them.
This has also been a widely reported harsh reality for foreign parents, including those living overseas whose children have been taken to Japan by estranged Japanese spouses.
These so-called parental child abductions are behind growing calls for Japan to join the international Hague treaty to prevent such cross-border kidnappings.
"These two problems are actually closely related because the domestic and international situation is the same — your children are abducted one day out of the blue and you are forbidden from seeing them," Watanabe said.
For Watanabe, what followed was a long legal battle with his wife, and divorce proceedings, which continue.
Initially his wife let him see their daughter a few times, but that stopped abruptly when he was slapped with domestic violence charges — which he branded a lie.
His wife alleged he had threatened her with a large pair of scissors while she was pregnant and told her he knew yakuza who would be willing to help him out with the situation by pushing her off a station platform in front of a train. The violence charges were later dropped.
"There is nothing more terrifying than receiving an order to appear before the court over 'DV' allegations. I was completely distraught. The judge, however, recognized that much of her claims were questionable and warned she could be charged with false accusations, so she dropped the charges the day before the ruling was to be made," Watanabe said.
But his wife then filed a lawsuit, demanding custody of their child and, again, adding allegations of abuse.
Last February, presiding Judge Tatsushige Wakabayashi at the Chiba Family Court granted Watanabe's ex-wife custody of their daughter from the viewpoint of "continuity," ruled that Watanabe had committed domestic violence and rejected his demand that his daughter be returned. The Supreme Court finalized the ruling in September.
While his legal battles dragged on, Watanabe asked lawmakers to address the issue and his case was deliberated on in the Diet.
Given his public profile, Watanabe originally wished to remain anonymous. But to garner public support for his situation, he recently came forward to tell his story to the press.
"I've been labeled a DV husband, and the judge completely ignored the facts and the law in my case. I had no choice but to stand up and fight," he said.
Watanabe has solicited the help of a special group of lawmakers who are trying to get Judge Wakabayashi fired from the bench. Among the so-called left-behind parents in Japan, Wakabayashi has spurred widespread ire, especially when in 2011, he criticized then-Justice Minister Satsuki Eda for telling the Diet that priority should be placed on the welfare of the child rather than the "principle of continuity."
"There are many people in similar situations. I cannot give up for their sake. It is not just about me and my daughter. This is a battle for all children and their parents," Watanabe said.
According to data compiled by family courts, there were 409 parents seeking the return of their offspring from an estranged spouse in 2001, whereas by 2011, there were 1,985 parents seeking to get their kids back. The numbers, however, reflect only the legal cases filed by left-behind parents that were officially accepted by the nation's family courts. Experts speculate they constitute only the tip of the iceberg.
Masayuki Tanamura, a professor of family law at Waseda University, said various factors are behind the increase in parental child abductions, including Japan's sole custody principle and the current legal framework that generally grants that right to mothers.
"Times have changed — fathers are more involved in child-rearing, and the legal system — including the principle of sole custody — makes battles over children more likely to happen. I think this part of Japan's legal system is outdated," Tanamura said.
One major difference that makes Japan's legal system peculiar is that when an estranged spouse initially takes a child, it isn't considered a crime. This is because it is common for an estranged parent, generally the mother, to take the children to her parents' domicile if a divorce is being contemplated.
But if the left-behind parent then subsequently tries to retrieve the offspring spirited away from their home, the action is considered kidnapping. Tanamura claimed there are many cases in which parents who spirit offspring away are unaware such action could be construed as abduction. From their point of view, they are merely considering a divorce or fleeing an abusive environment.
"It is hard to label all parental kidnappings as illegal . . . but at the same time, there are many cases that could constitute a double standard. It's OK for mothers to first take the children away, but when the fathers try to get them back, this is illegal," Tanamura said. "This is based on the longtime concept that children belong with their mothers."
To prevent children from losing access to both parents after a separation, Article 766 of the Civil Law was revised in 2011 to specify that visitation rights, child-support payments and other matters be determined during nonlitigated divorce proceedings, and that the welfare of the child be considered first.
But even this change can't help people like Watanabe because his case was ruled on after the amendment. "The aim of the revision is to promote forming agreements (over child care) when getting a divorce. But there is nothing that guarantees compliance," Tanamura said.
Tanamura and other experts thus agree that if and when Japan signs the 1980 Hague Convention on the Civil Aspects of International Child Abduction, it must at the same time institute fundamental changes in the legal system, and the public mindset must also be overhauled, or joining the convention will lead to naught.
John Gomez, chairman of the recently founded Kizuna Child-Parent Reunion, a group of Japanese and non-Japanese parents, friends and supporters advocating the right of children to have access to both parents, emphasized the need for left-behinds to cooperate because simply joining the Hague Convention will not solve anything in Japan if it continues to take a one-sided approach to domestic custodial rights.
"The problem of international cases and in-country cases has the same root cause — Japanese family law and the courts," Gomez said.
"The abduction issue affects all people in Japan — mothers as well as fathers, Japanese as well as non-Japanese."
The Hague treaty aims for the swift return of children wrongfully taken out of the country of their "habitual residence" by a parent to prevent cross-border parental kidnappings. Of the Group of Eight countries, Japan is the only nation yet to sign the convention.
Japan has been under pressure from member states, including the United States, the United Kingdom and Canada, to join the convention, but it has been reluctant, given strong domestic opposition, especially from Japanese mothers who claim they fled to Japan with their children to protect themselves from abusive ex-spouses.
Facing severe criticism from the international community, however, Japan finally reached the point of submitting a bid to sign the treaty and Hague-related legislation to the Diet during the last session presided over by Prime Minister Yoshihiko Noda's Democratic Party of Japan. But the politicians instead spent most of their time bickering over internal power struggles related to other domestic issues, pushing the Hague Convention to the sidelines once again.
And it remains unclear whether the issue will move forward under the new government led by the Liberal Democratic Party.
Government officials have expressed confidence that once deliberations begin, the Hague bid will be approved by the Diet. But parents, including Gomez, a longtime Japan resident who himself is separated from his Japanese wife and is having difficulty seeing his daughter, say joining the Hague treaty is only a step in the right direction, not a silver bullet.
Gomez explained that on the legal front, parental kidnappings must be stopped, visitation rights made enforceable and the idea of joint custody introduced. But he added that public awareness must also be raised at the same time so the public understands the benefits of the changes to ensure the rules are followed.
"The Hague is only one tool. The ultimate goal for us is a social and legal transformation of Japan . . . a complete transformation in terms of mindset and practice," Gomez said. "We firmly believe, Japanese and non-Japanese alike, that the social and legal transformation is for the betterment of Japanese society and children and improvement in the quality of life."
NCMEC Statistics Regarding Outcomes for Its Japan Cases
December 11, 2012
Children’s Rights Council of Japan has obtained the following statistical summary from the National Center for Missing & Exploited Children regarding the outcomes of cases it is handling involving children taken from the U.S. to Japan:
As of October 2012, NCMEC’s database reflects that in ninety-three percent (93%) of our active (unresolved) cases involving children taken from the U.S. to Japan, we have been seeking the return of the children for two years or longer and forty-four percent (44%) of these cases have remained unresolved for five years or longer. NCMEC’s database also reflects that, out of all of our closed cases involving children taken from the U.S. to Japan, seventy-six percent (76%) of the children were never recovered. To date, twenty percent (20%) of our closed cases involving children taken from the U.S to Japan, the children were returned or allowed access to the left-behind parent solely because of voluntary action on the part of the taking parent.
Children’s Rights Council of Japan is not aware of a single recovery from Japan that has resulted from a civil legal proceeding, and is aware of only one recovery following the issuance of a criminal warrant for the taking parent, in the case of Dr. Moises Garcia and his daughter, Karina Garcia.
Children's Rights Council of Japan (Japan child abduction) 