FEB2015ACCJARTICLE

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

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

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

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

Before last April, Japan was the only G-8 nation not to have ratified this Hague convention, which generally stipulates that a child should be returned to his or her country of habitual residence when they have been taken out of that country by a parent and without the consent of the other parent.

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

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

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

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

Jury still out

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

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

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

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

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

Parents still suffering

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

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

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

Benda’s wife disappeared with the girls after seeing him off to work one morning from their home in Chiba Prefecture, and she rebuffed all his efforts to make contact with them. As soon as he did find them again, they vanished once more. The only time he has seen them was for a few moments on a street in a Japanese town in 1998, after a private investigator managed to track down the girls and their mother.

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

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

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

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

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

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

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

David Levy

December 31, 2014

David Levy helped inspire the foundation of the Children’s Rights Council of Japan chapter in 1996, and was an active supporter of our activities over the years. Rest in peace, David, and thanks for all you have done to support a child’s rights to both parents worldwide.

DAVID LAWRENCE LEVY

On Thursday, December 11, 2014; David Lawrence Levy of Hyattsville, MD. Beloved husband of Ellen Levy; devoted father of Justin (Ilana) Levy, and Diana (Danny) Moldovan; beloved brother of Carol Levy; cherished grandfather of Corina Levy. Funeral Services will be held on Sunday, December 14, 2014 at 10;15 a.m. at Tifereth Israel Congregation, 7701 16th Street NW, Washington, DC 20012. Interment Mount Lebanon Cemetery. Shiva services will be held at the late residence Sunday through Thursday at 7:30 p.m. Contributions in his memory may be made to Tifereth Israel Congregation. Arrangements by Hines-Rinaldi Funeral Home, Inc. under Jewish Funeral Practices Committee of Greater Washington Contract.
– See more at: http://www.legacy.com/obituaries/washingtonpost/obituary.aspx?n=david-l-levy&pid=173444933&#sthash.SWnJG6hL.UC6Q7Ein.dpuf

http://www.scmp.com/news/asia/article/1463285/activists-say-japan-will-try-bend-rules-child-abduction-convention

Activists say Japan will try to bend rules of child abduction convention

PUBLISHED : Wednesday, 02 April, 2014, 10:53pm

UPDATED : Thursday, 03 April, 2014, 2:35am

Julian Ryall in Tokyo

Japan’s commitment to the Hague Convention on child abduction went into effect this week, but children’s rights activists warn that authorities are already looking for ways to avoid complying with the treaty.

Before Tuesday, Japan was the only G8 nation not to have ratified the Hague Convention on the Civil Aspects of International Child Abduction, which generally stipulates that a child should be returned to his or her country of habitual residence when they have been taken out of that country by a parent without the consent of the other parent.

Pressure had been growing on Tokyo to adopt the legislation as a growing number of international marriages – estimated at 40,000 a year – are also ending in separation and divorce.

Embassies in Tokyo are handling about 400 cases in which the Japanese parent has violated the terms of the convention by taking a child back to Japan, but international authorities have been powerless to act once they get there.

“We have been pressing for this for many years now and we are pleased that it has finally been ratified,” said Brian Thomas, joint founder of the Japanese arm of the US-based Children’s Rights Council.

“But we do have reservations,” he admitted, pointing to cases in Japan in which judges have invariably sided with a Japanese woman who claims she has been hit by a partner.

“The Japanese government keeps making excuses every time any Japanese national claims they have been subjected to domestic violence – and, of course, every lawyer now knows that is a legitimate defence,” said Thomas, who moved to Japan from Britain in 1988, two years after meeting his wife Mikako.

Their son, Graham Hajime, was born in January 1990, but Thomas returned from work one day to find their home locked and empty. He has not been permitted to see his son since April 1993, but carries his photo at all times.

“In this sort of situation, there is a clear need to have an outside expert assess a situation and to make a decision on what is really going on,” he said. “I’m really worried that the Japanese courts and the government here will continue to manipulate the situation in favour of their own nationals.”

Even more upsetting for Thomas is the fact that the legislation is not retroactive and cannot therefore be applied to his own situation.

“This does not help me at all,” he said. “But I will fight on for other parents who are affected by their child being taken away.”

Under the terms of the new law, a central authority has been set up within Japan’s foreign ministry to locate children who have been removed from their place of habitual residence overseas and brought to Japan.

The ministry will make efforts to encourage the parents to settle the dispute voluntarily, but if that fails, family courts in Tokyo and Osaka will institute hearings and issue rulings.

This article appeared in the South China Morning Post print edition as Tokyo adopts child abduction treaty

http://www.dailymail.co.uk/news/article-2095671/Childs-right-absent-father-Law-help-millions-broken-homes.html#ixzz2CjFGOdUk

 

Child’s right to see an absent father: Law to help millions from broken  homes

  • Government to draw up radical changes to the  1989 Children’s Act
  • £10m will be pledged to help couples settle  out of court
  • Figures show one in five children lose  contact with a parent after separation

By James Chapman UPDATED:19:14 EST, 2 February 2012

Millions of children from broken homes are to  be granted new rights to a ‘full and continuing relationship’ with both their  parents.

The move is designed to ensure that the  parent who leaves the family home – most commonly the father – cannot be cut out  of their children’s lives following an acrimonious separation.

Ministers have decided that a change in the  law is vital in the face of heartbreaking evidence that huge numbers of  youngsters whose families split up lose contact with one parent for  ever.

Ministers decided a change in the law is vital to prevent youngsters whose families split up from losing contact with a parentMinisters decided a change in the law is vital to  prevent youngsters whose families split up from losing contact with a parent

Deputy Prime Minister Nick Clegg and Justice Secretary Kenneth Clarke have been at odds over the proposals
Deputy Prime Minister Nick Clegg and Justice Secretary Kenneth Clarke have been at odds over the proposals

Deputy Prime Minister Nick Clegg and Justice Secretary  Kenneth Clarke have been at odds over the proposals

Courts will be put under a duty to ensure  that unless their welfare is threatened by staying in touch with either their  mother or father, children have an ‘equal right to a proper relationship with  both’.

Work and Pensions Secretary Iain Duncan Smith  and Deputy Prime Minister Nick Clegg have dismissed objections from Justice  Secretary Kenneth Clarke and overturned the findings of a major review of family  law which was published last year.

On Monday, the Government will announce a  ministerial working group that will draw up radical changes to the 1989 Children  Act.

The Act states that the child’s needs come  first in law courts, but campaigners for fathers’ rights complain that judges  repeatedly pander to the idea that mothers are ‘more important’ than  fathers.

Unmarried fathers say they are often at a  particular disadvantage, having to apply for a ‘parental responsibility order’  through a court or have one granted through an agreement with the  mother.

‘The Act is going to be rewritten,’ said a  Government source. ‘The welfare of children must of course remain paramount – but alongside that there will be an equal right for a child to have a proper  relationship with both parents.

Children's Minister Tim Loughton said courts are 'rarely the best place' for resolving conflicts between parents about the care of children
Children's Minister Tim Loughton said courts are 'rarely the best place' for resolving conflicts between parents about the care of children

Children’s Minister Tim Loughton (right) said courts are  ‘rarely the best place’ for resolving conflicts between parents about the care  of children

‘There should be no inbuilt legal bias  towards the father or mother, and where there are no welfare issues, we want to  see this principle reinforced through law.

‘This is about children. We want to be clear  that both parents should have a full and continuing role in their children’s  life after a separation.’

Ministers will pledge £10million for  mediation services to encourage more couples to settle their disputes out of  court.

Children’s Minister Tim Loughton told the  Mail: ‘The courts are rarely the best place for resolving private disputes about  the care of children. That’s why we want to see greater use of mediation to  solve parental disputes out of court.

Betrayal of the family

‘It is also right that we continue to  encourage fathers to take responsibility as equal parents and to be fully  involved with their children from the outset.’

The decision overturns the main finding of a  family justice review, conducted for the Ministry of Justice by businessman  David Norgrove, which was published in November.

It concluded that giving fathers shared or  equal time, or even the right to maintain a meaningful relationship  with  their children, ‘would do more harm than good’.

The proposals immediately sparked a Cabinet  revolt, led by Mr Duncan Smith and Mr Clegg, who insisted that the law must be  amended to strengthen fathers’ rights.

Official figures show that one in five  children from broken homes lose touch with their absent parent, usually their  father, within three years and never see them again.

Read more: http://www.dailymail.co.uk/news/article-2095671/Childs-right-absent-father-Law-help-millions-broken-homes.html#ixzz2CmNL7yyR Follow us: @MailOnline on Twitter | DailyMail on Facebook

Based on his positions on other issues and his unwillingness to take a stand on dual parental rights in divorce cases, it does not seem that Justice Minister Makoto Taki will be a very proactive force in addressing international abduction and children’s rights issues in Japan.

 

http://www.japantimes.co.jp/text/nn20120620f4.html#.T-HPwN3YlZ9

 

Wednesday, June 20, 2012

 

Death penalty on books, should stay: justice chief

 

Staff writer

Newly appointed Justice Minister Makoto Taki said in a recent interview that he supports the death sentence because it’s on the books for heinous crimes.

 

News photo
Makoto Taki

 

“I lean toward maintaining the death sentence because it already exists in the judicial system,” Taki, who assumed his post June 4, told The Japan Times and other journalists in his office last Thursday.

“The fact that the judicial branch hands down death sentences should not be taken lightly,” he said. “We should be cautious, as we should scrutinize individual cases.”

He also said he does not plan to repeat what predecessor Keiko Chiba did in 2010 and give the media a glimpse of the gallows.

“Because the media got to see the death chamber under Chiba, I don’t plan to do” likewise anytime soon, he said without elaborating.

He also said he will continue to study whether hanging is the appropriate method for executions.

On whether to add life in prison without parole as a punishment for serious crimes, he said the Democratic Party of Japan “has not really launched discussions because the issue of whether to keep or abolish the death sentence is the priority.”

Life imprisonment without the possibility of parole is not a current option. Life sentences can lead to parole if an inmate demonstrates good behavior.

Legal experts and activists argue that the gap between life with the possibility of parole and the death sentence is too wide.

Japan is one of 58 countries, including the U.S., China, India and Iran, where executions take place; 104 nations, including all of the European countries, Canada and Australia, either have abolished capital punishment or have kept the death sentence on the books but have not conducted executions for years, according to Amnesty International.

On whether to allow dual parental rights in divorces, Taki said he will handle the issue carefully and avoided clarifying his position.

Domestic law allows only one parent to have custody, and thus those who lose the right in custody battles find it extremely difficult to see their kids after a divorce.

“Opinions are split on the issues of medical treatment and schooling of children, so I want to handle it carefully,” he said, referring to situations in which children may be required to change schools and sources of medical care if they go back and forth between parents.

The issue of single or dual parental rights is a hot-button issue because Japan is preparing to sign the Hague Convention on the Civil Aspect of International Child Abduction, which will basically make Japan promise the other participating countries that it will do its utmost to enable non-Japanese parents to see their half-Japanese children.

In 2004, Taki blamed foreign residents illegally staying in Japan for a rapid rise in crimes.

“The number of crimes have increased rapidly and more than doubled from 1973, when it was the lowest since World War II. Above all, crimes committed by foreign residents illegally staying in Japan are extraordinary in their frequency and brutality,” Taki said on his website in 2004.

Asked about this statement, Taki said in the interview that such crimes have dropped to a third of the number in 2004 and thus he is no longer as concerned.

“Back then, the number of crimes had gone up suddenly, not just by foreigners but also by Japanese,” he said.

http://www.yomiuri.co.jp/dy/national/T120509005259.htm

 

Divorced parents lack ways to meet kids / Ministry has asked local govts to help out, but so far only Tokyo has taken active steps

The Yomiuri Shimbun

The welfare ministry has asked local governments to encourage meetings between divorced parents and their children by arranging and overseeing such encounters, but little progress has been made.

The Health, Labor and Welfare Ministry started a project this fiscal year to increase opportunities for parents to meet their children after a divorce by encouraging prefectural governments and those of 20 ordinance-designated major cities nationwide to help out.

But among them, only the Tokyo metropolitan government has decided to begin to offer relevant services by the end of this fiscal year. The other 66 local governments will do so later, or have no plans.

Though the local governments admitted the project is necessary, they said the services cannot be provided because they have no officials with know-how about such meeting arrangements.

Thus it is an urgent task to train personnel who can implement the services.

Experts have said that meeting with parents after they get divorced is important for the children’s growth.

But in many cases, meetings by those directly involved are difficult to hold because of emotional conflicts.

According to the Supreme Court, applications for parent-child meetings in 2010 numbered 7,749, an about 3.2-fold jump from 10 years ago.

There have been many cases in which parents who have been refused permission to meet their children have taken matters into their own hands and absconded with them.

Private organizations offering to arrange and oversee such meetings do exist, but there are too few of them to meet nationwide demand. Consequently, only a limited number of people can use the services of such organizations.

A man in his 30s living in Hiroshima Prefecture apart from his wife and child while the couple’s divorce proceedings are under way said, “As my trusting relationship with my wife has been lost, I can’t even directly contact her.”

He said an arbitration service by a nonprofit organization cost 18,000 yen for two hours. He said, “Public assistance is necessary.”

In response to such opinions, starting in this fiscal year, the ministry decided to subsidize part of the costs if local governments of prefectures, major cities and regional core cities implement their own parent-child meeting services.

The public services cover low-income earners with children under 15, and the services are free of charge.

The idea is for officials of the local governments or other public entities to coordinate times and places for the meetings and also accompany the persons involved.

Since autumn last year, the ministry has asked the local governments to proactively implement the services.

However, in a survey conducted in April by The Yomiuri Shimbun on prefectural and major city governments, only the Tokyo metropolitan government replied it planned to introduce the service within this fiscal year.

Forty-six of the local governments, or 69 percent, said they were still considering whether to introduce the service. Twenty, or 30 percent, replied that they had no plans to do so.

On why such a service had not yet been introduced, a question for which multiple responses were permitted, 32 of the governments, or 48 percent, said they do not have officials or outside experts with expertise about such meetings, and 21 of them, or 32 percent, said they could not secure budgets for the purpose.

Most of the surveyed local governments admitted the project is necessary. But the Kochi prefectural government said the project means that public entities will get involved in the participants’ private affairs and thus careful consideration is necessary.

The Fukuoka prefectural government said that local governments alone have a limit on what can be done because difficult adjustments will be necessary in some cases, and it will be necessary to establish a system in which local governments will closely cooperate with lawyers, family courts and other experts.

A ministry official said, “We’ll take the opinions into consideration so that more local governments will implement the project.”

Waseda University Prof. Masayuki Tanamura, an expert on family law, said: “Maintaining interactions between parents and children after a divorce is important for the children’s growth. As there are many parents who say they can allow children to meet divorced spouses with third-party oversight, the project is significant.

“Because this is the first attempt of its kind, the local governments seem to be reluctant due to fear of possible trouble. But it’s useful even just to coordinate meeting schedules or contact parents on behalf of the other spouses. It’s necessary to actively provide the services,” he said.

(May. 10, 2012)

CRC of Japan estimates cumulative cases of internationally abducted children in Japan to number in the thousands–

This is a very rough approach, but we think it’s pretty close.

How we came up with our numbers when we first calculated them a few years ago:

1.  According to a widely cited 1990 U.S. Department of Justice study called “National Incidence Studies of Missing, Abducted, Runaway and Thrownaway Children,” 354,100 abductions per year are committed by family members in the U.S. Based on the 1990 U.S. population of 248,709,873, this works out to a U.S. per capita family abduction rate of 0.0014237.

2.  Assuming that this per capita family abduction rate is about the same for the Japanese population, based on the July 2006 estimated population of 127,463,611, the total number of estimated abductions per year in Japan by family members works out to 181,470.  Even if we are off by 20% or more in making this assumption, we will make a conservative adjustment further below that more than makes up for any possible error in this step.

3.  Looking at recent periods, such as for example 2000-2003, 4.8% of all Japanese marriages involved a foreigner marrying a Japanese. Assuming the frequency of family abductions is about the same for Japanese married to Japanese as it is for Japanese married to foreigners, we can apply this 4.8% percentage to the estimated 181,470 family abductions in 2006, and can conclude that about 8,710 of the estimated family abductions in Japan involve an international marriage between a Japanese and a foreigner.

4.  Although most of the international child abductions involving children in Japan seem to be committed by the Japanese parent, for the sake of argument  we will assume that family abductions in Japan are done equally frequently by the foreign spouse as by the Japanese spouse.  This would mean that half of the 8,710 estimated international marriage family abduction cases, or approximately 4,305 cases, involve children of international marriages abducted to or retained in Japan by the Japanese spouse.

5.  With U.S. citizens accounting for about 4.5% of the international couples, 194 of the estimated 4,305 cases would involve U.S. children being abducted to or retained in Japan.

6.  To provide for a very conservative margin of error, and adjust for the assumptions in step 2 above and other assumptions we have made, we will reduce our estimates from above by 50%.  Even so, this would mean that there are more than 2,000 international cases PER YEAR of children of international marriages being abducted to or retained in Japan, with almost 100 cases PER YEAR involving U.S. children.

Cummulatively, adding together all the cases for the past 5 or more years, the total easily could be more than 10,000 international cases and over 500 cases involving U.S. children.

Most cases, especially those where the foreign parent resides in Japan, never get reported to the U.S. State Department or other agencies in Japan or other countries.  These numbers are very hard to determine without using an estimation process as above since  there are no missing children organizations or official records about abducted/missing children in Japan.

It is extremely encouraging to see that the U.S. State Department is providing this information on their website.  The first link below is the Japanese language “American View” Winter 2010 newsletter published by the U.S. State Department which  provides a range of Japanese language information on U.S. custody law, the Hague Convention, and left-behind parents.   The second link provides a good overview of all the various organizations now involved in these issues from the point of view of a left-behind parent (LBP), Steve Christi.

Both of these are great resources with a lot of credibility, especially since they’re now on the U.S. State Department website!

Japanese language “American View” Winter 2010 newsletter:

wwwf-american-view201001

Steve Christi’s article:

japan-usembassy-gov_e_p_tp-20100122-84

Tokyo Families article

November 11, 2009

Interesting article covering Paul Toland’s case as well as quite a few others:

 

http://www.tokyofamilies.com/sections/entry.php?id=366

Letter to President Obama

November 5, 2009

President Obama will be making his first trip to Japan next week to meet with Prime Minister Hatoyama.  Below is a letter that Children’s Rights Council of Japan has sent President Obama.  We also have a link here so you can download a Word version of the letter that you can modify so you can send your own letter to President Obama and others.  Due to the limited time prior to his trip, it would be best to fax your letter to the White House at 202-456-2461.

Obama letter-Word Version

We are also trying to get senators to write President Obama about this, and they too can use this letter.  Here is a link to find the phone and contact details for all the senators:

http://www.senate.gov/general/contact_information/senators_cfm.cfm

Obama letter