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Three years after Japan signed Hague, parents who abduct still win

BY 

SPECIAL TO THE JAPAN TIMES

As he sat waiting in a van near his estranged wife’s family home in Nara, where his four children were living, James Cook felt very alone. It was an emotion he’d become all too accustomed to in the years since his wife had taken the children on a holiday to Japan and never returned, leaving him the sole inhabitant of their former family home in Minnesota.

“I was alone in our family’s home,” Cook says. “Alone with our children’s rooms just as they left them on July 13, 2014. My location was different, but the feelings of being all alone were the same.”

Meanwhile, at the his wife’s family home just across the road, the most important thing in Cook’s life — whether or not he would be reunited with his children — was being determined in his absence. It was Sept. 13, 2016, and after years of seemingly endless court motions, filings, petitions, decisions and appeals in both the U.S. and Japan, finally, in theory at least, he would have his children — two pairs of twins, now aged 9 and 14 — returned to him.

Through the Hague Convention on International Child Abduction, Cook had successfully petitioned to have his children returned to their home in the United States and a “return order” had been issued by the Osaka High Court. However, the children’s mother, whose name is being withheld out of consideration for the children, was still refusing to hand the children over, so the case had moved to the final “direct enforcement” phase.

The day before, Cook and his mother, who had come with him to Japan to help with the children, met with officials from the Japanese Central Authority (JCA), the Foreign Ministry agency responsible for handling Hague-related matters, at Nara District Court to formulate a strategy to ensure the handover of the children.

“Maps of streets and the neighborhood with locations of each group were displayed on the large conference table in the NDC conference room,” Cook recalls. “It looked very well planned and gave me a sense of hope that we might be successful.”

Cook and his mother departed their hotel in Osaka before dawn to make the 5:25 a.m. train that would take them, accompanied by their lawyers, to Gakuen-mae Station in Nara.

At a rendezvous point, Cook’s party met with JCA officials, got into a van and waited for instructions. Shortly after, a call came through to Cook’s attorney that Nara court enforcement officers had approached the house and confirmed that Cook’s wife and the four children were present. At 6:55 a.m. they entered the building.

While Cook and his mother waited in the van, a total of 17 people were now present at the Cook’s wife property just down the street: Cook’s wife, the four children, their Japanese grandparents, two police officers, Cook’s two attorneys, a JCA official, two JCA-appointed psychologists, a Nara court bailiff and two officials from the U.S. consulate in Osaka.

At around 8 a.m., Cook’s attorney delivered the news that the children were very upset and did not want to see him, although later they did agree to see Cook’s mother. Cook was left alone in the van with his thoughts.

At 10 a.m., Cook’s mother returned looking “very traumatized,” but he still believed that finally, his turn to see the children must have arrived. “My emotions were welling up and I was putting on my emotional armor in preparation. As I looked up to find my way out of the van, I was stopped by a sad look on my attorney’s face. She told me our children still refused to see me and that NDC officers had called off enforcement already. I was a block away for three hours from my children, waiting for my turn. I was in shock and just sat in my seat.”

Shackled by legal limits

Three years have passed since Japan became a signatory to the Hague Convention, which is designed to ensure the timely return of children to their country of residence after abduction by one parent to another member country.

The Foreign Ministry’s Hague Convention Division is quick to point out that of the requests to repatriate children from Japan made in the first two years after signing the convention, about 90 percent have been resolved. But the details of how these cases were “resolved” are less clear, as judgments are not published and the ministry will not comment on specific cases.

According to the ministry, of the 68 requests to return children to a foreign country under the convention in the past three years, 18 have resulted in returns. Twelve more requests were “dismissed,” 19 have been “settled not to return the child to a foreign state” and another 19 cases are still open. In other words, just under 30 percent of requests for the return of children made in the past three years have resulted in children leaving Japan.

The ministry confirmed that in two cases during the first two years of Japan having signed the Hague, direct enforcement was carried out. It added that there had been a “limited number of cases in which the children’s release has not been achieved” through direct enforcement, without offering exact figures. Based on these unsuccessful attempts, the Hague Convention Division said by email, “We will keep monitoring these cases and continue to review our implementation of the Hague Convention closely as necessary.”

In its 2016 Annual Report on International Parental Child Abduction, the U.S. government concluded that “Japan failed to comply with its obligations under the Hague Abduction Convention in the area of enforcement of return orders.” Citing a case in which a Japanese return order issued in early 2015 was still unresolved by the end of the year, the report raises concern that there may be “a systemic flaw in Japan’s ability to enforce return orders.”

Bruce Gherbetti, a director with the Kizuna Child-Parent Reunion nonprofit organization, believes that failed direct enforcement procedures are inevitable considering the legal limitations placed on officials charged with carrying them out.

“They are following … Japanese domestic law, which is tied to the Hague Convention, and they are doing everything within their power, but their power is so extremely limited that … they are either requesting of the taking parent or requesting of the abducted child that they come voluntarily,” he explains. “So it is essentially asking permission of the kidnapper in order to enforce the return order. I mean it is a court order, yet they are begging and pleading.”

Under domestic legislation introduced to help Japanese authorities implement Hague returns, the only physical contact permitted is for a court bailiff to restrain the abducting parent if he or she tries to stop the child from voluntarily leaving.

Last year, the justice minister asked an advisory panel to look into revising the Civil Execution Law to set down specific procedures for enforcing court orders on the handover of children between divorced parents. The government is expected to submit a bill based on the committee’s findings next year.

However, Colin P.A. Jones, a professor at Doshisha Law School in Kyoto, doubts this process will result in more Hague returns. “I think experts expected the enforcement procedures adopted for Hague cases would ultimately become the standard for domestic cases as well. So I don’t expect much more than that. I certainly don’t expect it to result in any improvements in enforcement of Hague return orders,” Jones says. “Absent a significant change of policy — starting to impose criminal sanctions for noncompliance, for example — the basic limits on how to forcefully transfer ‘possession’ of a child without harming the child physically or emotionally will always apply, and taking parents will continue to be able to effectively use the children as ‘human shields’ against the judicial process.”

Time is on the abductor’s side

Gherbetti believes time is a critical factor in abduction cases, and this issue is at the heart of Japan’s failure to successfully return abducted children.

The Hague treaty “calls for six weeks of adjudication because they don’t want the child held outside their habitual residence longer than that,” he says.

Gherbetti says that although the international standard for Hague returns tends to be closer to six months than six weeks, in Japan the process often takes considerably longer — around 18 months or more — giving the abducting parent time to bond with the children and acclimatize them to their unfamiliar new surroundings.

Gherbetti blames an over-emphasis in Japan on the mediation portion of the convention for drawing out the process.

“So, similar to their domestic system, they try to have an amicable resolution,” he argues. “They much prefer mediation and an agreed-upon solution than an actual court order.”

Article 13 of the Hague Convention outlines situations where signatory states are not bound to order the return of a child. One such situation outlined in Clause B of the article is when “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

When crafting domestic legislation to handle Hague cases, Japan’s lawmakers “came up with a document that allows them to greatly expand the 13B grave-risk category, and they have created a number of loopholes that ensure they don’t actually have to be in compliance with the convention,” Gherbetti says. “The ‘grave risk of return’ is originally intended for situations where you have a child abuser — you are not going to return a child to someone who has physically or emotionally, etc., abused that child and there is clear evidence of such. To say that someone has habituated to the new environment doesn’t fall under the original intention of 13B. That is for certain.”

Parental alienation syndrome

On Sept. 15, two days after the unsuccessful attempt to enforce the return order in the Cook case, a second direct enforcement attempt was carried out at his estranged wife’s house.

This time, Cook’s two youngest children were away on a school camping trip, but Cook was allowed into the house on the condition he would not take the children back to the U.S. that day. Cook says he spoke to his two older sons from a distance, although did not actually see them, as they were hidden elsewhere in the house.

Cook says the boys called out “You’re not my father anymore,” “I don’t want to know you” and “Can’t you see we are happy here and don’t want anything to do with you anymore?”

Cook believes his wife and her family deliberately turned the children against him, a classic case of parental alienation syndrome. He also thinks they coached his children to make these types of statements, which are similar to those they used in interviews with court officials during the mediation process.

Noriko Odagiri, a professor of clinical psychology at Tokyo International University, says that although she is unable to comment on specific cases, the risk of children who are victims of parental abduction developing parental alienation syndrome is very high, and children up to the age of 12 are especially vulnerable.

Odagiri says this condition, which she calls a form of “brainwashing,” develops due to the material circumstances the child is forced into, and also the behavior and attitudes of the taking parent. She adds that it is a violation of the will of the child. “The child has no choice because they are dependent on the alienating parent both financially and emotionally,” Odagiri says. “They come to believe the alienating parent is the best parent and they can’t live without them.”

Odagiri believes this is a form of child abuse that can have a serious, long-term negative impact on mental health that can remain through adulthood. “When they grow older they recognize the whole map of their life and what happened to them as a child,” she says.

Cook’s wife failed to comply with a Minnesota court order to surrender the children’s passports to the U.S. Consulate in Osaka by April 7 and release them into Cook’s care by April 23. Cook flew to Japan and was present at the consulate in the hope that he would be reunited with his children. But again, he left alone.

Cook is appealing a decision made by the Osaka High Court in February to revoke the earlier judgment granting him the return of his children, based on its opinion that Cook lacks the means to support the children in the U.S. He was granted the right by that court to take his appeal to Japan’s Supreme Court and is now preparing arguments.

“I am a loving parent and a loving parent never gives up, never gives in, never manipulates their children and, above all, recognizes that their children possess the same human rights as they do,” he says. “Children are not property, children love both their parents and a part of a child dies when they are denied the other parent.”

The Japan Times made a number of attempts to contact Cook’s wife for comment by telephone but she could not be reached, and no replies to emails sent to her address were received. An attempt was also made to reach her through her lawyer, Tomoko Kamikawa. Kamikawa declined to comment and said she was unable to assist with contacting her client, because she was not representing her in relation to her communications with the media.

Loving from a distance

Paul Halton’s children were abducted to Japan from the U.K. by his Japanese ex-wife in 2014, a year after the couple divorced. Dual custody of the three children was awarded in the English courts during divorce proceedings.

The courts also stipulated that the children should live in the U.K. and placed a travel embargo on the mother taking the children to Japan that applied until the country implemented the Hague Convention. Japan signed the convention on April 1, 2014, and in August of that year the children were abducted. On March 31, 2015, the Osaka Family Court ruled that the children should be returned to the U.K. under the Hague Convention . The mother’s appeal was rejected three months later and a return order was issued by the courts.

After Halton’s ex-wife continued to refuse to comply and return the children to the U.K., an order for “indirect enforcement” was carried out. Indirect enforcement, a mandatory part of the Hague return process, involves attempting to make the abductor pay fines to the other parent, usually ¥5,000 per day per child. This step must be carried out before direct enforcement is attempted. Halton says he never received any money from the mother, as she was able to avoid making payments by claiming welfare and thereby obtaining beneficiary status.

With two years having passed since he’d seen his children — now 12, 10 and 7 — Halton decided to take the next step and proceed with direct enforcement. This was attempted on Nov. 29 and Dec. 1 of last year.

Officials and social workers were unsuccessful in executing the return order. However, they did manage to persuade his ex-wife to let Halton take the children for a day trip to Universal Studios Japan in Osaka a few days later, which he says was “a fantastic moment to spend some time with the children.”

A very special day for the four of them wrapped up at a branch of the children’s favorite Italian chain restaurant near the drop-off spot.

“Dinner again was wonderful, full of memories”, Paul recalls. But, he says, “I could now feel every second pass as drop-off time approached.”

Halton says he was tempted not to hand the children back at the end of their day trip, as he had the backing of both the Japanese and British governments to legally return home to the U.K. with his children. “But what would that do to my children?” he asks. “I couldn’t force them, rip them from their mother and for a second time turn their world upside down.”

Halton says that since this visit the situation has improved a little. Skype chat sessions have resumed, and gifts and cards to the children in Japan seem to get through, but the situation is still very fragile and out of his control. He and his ex-wife are supposed to be negotiating long-term, fixed arrangements about contact with his children, but no real progress is being made.

“Since I’ve reached the end of the current legal road, I fear that the children will have to grow up without me in their lives,” Halton says. “I hang on to the hope that one day my ex-wife will agree that the children and I can visit each other, at least in that I will have a few weeks a year to help them grow and learn, as a father should be doing.

“It’s a horrible reality to think that I will miss my three kids’ childhoods,” he says. “The next time I see them could be when they’re old enough to break free from their mother and independently seek me out, by which time they will be adults potentially with careers and families of their own. We’ll know each other but we won’t be close as nature intended.

“The likelihood is that they will remain in Japan for the rest of their lives and so even my unborn grandchildren will be distant and possibly unknown to me,” Halton says. “This is a thought that haunts my everyday life and I doubt will ever fade.”

Halton’s father, Richard, says that although parental child abduction hurts the children most of all, and then the left-behind parent, many others who were connected to the children are also deeply affected.

“Both I and Grandma find that it isn’t the same with these three small faces missing, and I know that other family members feel the same. The other children, their cousins, wonder where they’ve gone and why. We all feel a pervading sense of loss. We know that the children are safe but we never see them. Are they truly happy?” he asks.

Richard adds that the situation is made far worse in the case of parental child abductions because the “family that tries to correct the wrongs done has to contend with official indifference and inaction” and also bear a considerable financial burden in the hope of seeing the children again. “We are supporting our son Paul emotionally and financially in his quest, but the system is loaded in favor of the abductor and we have all come to the conclusion that the Hague Convention is an expensive waste of time.”

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Two years after Japan signed Hague, children have been returned but old issues remain
BY COLIN P.A. JONES
APR 17, 2016

‘What brand of Champagne did you drink?”

The lawyer delivered the question with a dramatic flourish, and I suppose it was a reasonable question to ask, even if rhetorically. I was being cross-examined as an expert witness in a child custody-related trial in a Western courtroom. One parent wanted to relocate to Japan with the child, the other was objecting.

This was 2015. In a 2008 Japan Times column written about a rumor that Japan was preparing to sign the Hague Convention on the Civil Aspects of International Child Abduction, I had declared: “I do not plan to crack open any Champagne until an abducted child is actually returned home.” The rumor proved wildly premature, but Japan ultimately ratified the convention, which, together with a package of baroque implementing laws and regulations, came into effect from April 2014.

The question about my Champagne preferences (Veuve Clicquot, by the way, if anyone is buying) was reasonable as a challenge to my reliability as an expert, yet was arguably irrelevant to the issue at bar: What could the court expect in terms of preserving the relationship between the child and the left-behind parent after the other parent and their child relocated to Japan? Unfortunately, “Not very much” may still be the answer.

But first, credit where it is due: In the two years since Japan signed the convention, more children abducted to or unlawfully retained in Japan have been returned to their home countries than at any time in the past. The Ministry of Foreign Affairs, Japan’s “central authority” for convention purposes, has handled almost 200 applications for assistance, and returns have been achieved in both directions (see table).

The Foreign Ministry has put significant effort into implementing the treaty and performing its central authority role. (A ministry representative also kindly responded to my inquiries in connection with this column.) It has sought to deter abductions through awareness programs, as well as foster amicable resolutions to abduction and visitation disputes by supporting mediation programs specifically designed for convention cases. (I am a mediator for one of them.) It also provides financial assistance for the translation of court documents and has set up a special online system (named Mimamori) for supervised cross-border “virtual visitation.”

Amicable resolutions are great, but there is not always much amity left between parents when one of them unilaterally spirits the children away to another country. Sometimes fear of abuse is a factor, but not always. Sometimes it is not; sometimes the taking parent is just trying to erase the other parent from his or her life, which necessitates erasure from the children’s lives as well. Having spent over a decade watching countless cases like these transpire, I believe that intentionally denying a parent — a former spouse, or life partner at that — a loving relationship with his or her child may be the worst thing one human being can do to another, short of physical violence. It is rarely good for the child, either.

The Hague Convention makes this harder by requiring that children taken or retained across borders in violation of custody rights be returned to their home country (where the other parent is typically also resident). Returns are the rule, but there are exceptions. One of these is if the child is living in Japan with the consent of the other parent. Disputes over relocation during or after divorce also being common, a child may also end up living in Japan with one parent through the permission of a foreign court.

When Japan was not a convention signatory, it was a red flag to foreign judges whenever a parent sought leave to take the children to Japan, whether to visit or live. “Just taking the kids back for the summer to see Grandma” and then staying is a pretty common abduction scenario everywhere (with Grandma sometimes playing a role in persuading the parent to stay). In Japan it was almost always a successful strategy — one that would frustrate whatever a judge in the country of origin might have decided about the child custody arrangements. Now, this type of “abduction by retention” should result in a Japanese court issuing a return order.

With Japan having joined the treaty, parents and foreign judges alike may now feel more secure about the idea of a child being brought here to live. Yet if that happens with the consent of the other parent or permission of a foreign court, a return order will then be difficult — if not impossible — to obtain. While judges in American states may be accustomed to retaining jurisdiction over children taken to another state and being able to enforce their rulings on custody, this probably won’t work with a child taken to Japan; if the scenario does not constitute an “abduction,” parents will likely be left to seek relief in Japanese family courts outside the convention framework, and they should lower their expectations accordingly.

Judges still finding their way

First, conversations with lawyers indicate that even in abduction cases that clearly fall under the convention, the Osaka and Tokyo family courts charged with resolving them are still figuring things out. Family court judges are likely accustomed to resolving domestic cases without being constrained by the rules of evidence and procedure that should apply in Hague cases.

At the same time, however, such cases are supposed to be resolved more expeditiously, despite involving complex issues such as the interpretation of foreign law: What do “rights of custody” mean in Country X, for example? (There is an international network of “Hague judges” in which Japanese judges participate, but apparently not to the extent of using it as an informal source of information on foreign law and practice in specific cases.) Similarly, which party has the burden of proving what — a parent’s consent, for example? And what if a parent or foreign court’s permission to relocate to Japan with a child is based on the relocating parent’s promise of cooperation with visitation — a promise that is immediately broken after getting off the plane?

Some of my lawyer interlocutors complain about a lack of procedural clarity. Perhaps this is a matter of time and more cases will resolve these issues.

Mixed messages on visitation

Second, visitation in Japan remains patchy and difficult to enforce. The convention provides for facilitation of cross-border access (aka visitation) but with limited substance. While the Foreign Ministry offers support, it is just that — support, such as contacting the other parent and offering online visitation and mediation. Such support has reportedly resulted in visitation in some cases, and even led to a few instances of children being returned.

If cooperation is not forthcoming, however, the parent seeking visitation is left seeking recourse in family courts, pretty much like everyone else. Here the stories I hear seem have not changed dramatically: parents going for months without seeing their children, mediation sessions where nothing seems to happen, judges who seem unduly solicitous of parents engaging in alienating behavior, and courts making decisions based on expediency rather than the best interests of children.

There are some signs of changes: Courts seem to be awarding visitation more, and I hear more about overnight stays, though recent judicial statistics show them occurring in less than 10 percent of cases. Also, in a December 2014 decision, the Fukuoka Family Court transferred legal custody of a child from mother to father due to the former’s obstruction of visitation. Only last month, the Matsudo branch of the Chiba Family Court ordered a mother to hand over her daughter to the father after years of blocking contact between the two. Japanese family court professionals have long written about the “good parent rule” — giving custody to whichever is more understanding of visitation with the other — as a remedy for such intransigence, but these are the first instances I have seen of it actually being applied.

Yet such developments should be treated with caution. Seemingly revolutionary decisions have to survive appeals and be enforced to be truly meaningful. In the Fukuoka case, only legal custody was transferred, something that can be accomplished simply by filing the judgment with the family registry; it does not automatically equate with the father getting contact, only the mother needing to seek his cooperation to take legal acts like applying for a passport on their child’s behalf.

As for the other case, branch family courts have long been the dumping ground for judges disfavored by the judicial hierarchy, meaning the Chiba case could be an anomaly as much as a harbinger of true change. Even the family courts’ increased acceptance of visitation seems to be tied to growing use of supervised visitation through NPOs staffed by (surprise!) retired family court personnel. In other countries supervised visitation is limited to cases where a parent is abusive or potentially dangerous; in Japan it seems to be becoming the easy-to-award/recommend default solution for when the custodial parent is intransigent.

Visitation thus still seems to be driven by what the custodial parent can be convinced to agree to, rather than what might be meaningful for the child. The Foreign Ministry’s Mimamori online supervised visitation system seems to be an extension of this logic: that any contact is better than none, and might lead to something more meaningful (which is sometimes the case). Understandably, some parents who have done no wrong yet are expected to accept being treated like criminals in order to interact with their own children find this abhorrent.

Lack of enforcement — and details

Third, an order from a Japanese court to return a child, whether across the street or to another country, can often still be frustrated by a parent simply refusing to comply, or getting the child to refuse. This is said to have already been an issue in convention cases, which should not surprise anyone: Before the treaty came into force, the nation’s shikkōkan — the bailiffs who enforce civil judgments — announced that it would likely be impossible to enforce return orders without the child’s cooperation. While the process of implementing the Hague Convention has brought some clarity to the theory and practice of enforcing returns, without sanctions for contempt (which Japanese judges lack in these cases) or other police-like powers to back them up, court orders can end up being meaningless pieces of paper.

Fourth, and finally, after two years and a number of cases, the workings of Japan’s Hague courts remain invisible. No judgments have been published, nor do there appear to be any statistics available on case resolutions. There is no way for outsiders to know how Japanese courts are deciding whether or not to return children.

At least I can drink some Champagne (Moet & Chandon is fine too): Japan did join the convention, and lawyers tell me it is having a real effect in deterring abductions. Yet it shouldn’t be forgotten that the convention’s potential remains limited by the constraints of the Japanese family justice system as a whole. Describing those requires more words than a single column allows, so keep watching this space.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone. Law of the Land appears on the second Monday Community Page of the month. Your comments and story ideas: community@japantimes.co.jp

(April 1, 2014, to March 31, 2016) APPLICATIONS FOR HELP WITH RETURNS APPLICATIONS FOR HELP WITH VISITATION
APPLICATIONS TO MINISTRY OF FOREIGN AFFAIRS RELATING TO CHILDREN IN JAPAN (AND THE FOREIGN COUNTRY INVOLVED)
U.S. 11
France 4
Australia 4
Germany 3
Canada 2
U.K. 2
Singapore 1
Italy 1
Spain 1
Russia 1
Switzerland 1
Belgium 1
Sri Lanka 1
Turkey 1
Fiji 1
Colombia 1
South Korea 1
U.S. 39
U.K. 6
France 5
Australia 4
Canada 4
New Zealand 3
Singapore 3
Mexico 2
Germany 1
Costa Rica 1
Subtotal 37
Rejected* 8
Total 45
Subtotal 68
Rejected* 7
Total 75
APPLICATIONS TO MINISTRY OF FOREIGN AFFAIRS RELATING TO CHILDREN IN FOREIGN COUNTRIES
Thailand 6
Russia 4
Brazil 4
South Korea 3
U.S. 3
Germany 2
Canada 2
France 1
U.K. 1
Italy 1
Spain 1
Switzerland 1
Slovakia 1
South Africa 1
Peru 1
Romania 1
Sri Lanka 1
Belarus 1
Sweden 1
U.S. 5
Russia 3
Canada 3
Germany 2
Ukraine 2
Thailand 2
Australia 1
South Korea 1
Uruguay 1
Netherlands 1
Poland 1
Hong Kong 1
Subtotal 36
Rejected applications* 3
Total 39
Total 23
TOTAL APPLICATIONS 84 98**
STATISTICS IN TABLE COURTESY OF MINISTRY OF FOREIGN AFFAIRS

NOTES

* Applications for assistance may be rejected by the Foreign Ministry because they do not satisfy requirements for assistance (e.g., the requesting parent is unable to demonstrate rights of custody or visitation). In some instances, rejections reflect the fact that the taking parent has already returned with the child voluntarily, rendering the application moot.

** The far greater number of requests for visitation assistance for children in Japan in part reflects the fact that Japan allowed applications for assistance with visitation with children in Japan even in cases pre-dating the Hague Convention’s coming into force.

RETURNS

• The data regarding returns reflects applications to the Foreign Ministry for assistance in achieving the return of a child either in Japan or in a foreign country, which in the first instance involves encouraging the taking parent to return voluntarily or to mediate with the other parent. Accordingly, only some of these cases are ultimately resolved through court.

• According to the ministry, 14 children were returned from Japan, through mediation or other voluntary arrangements, alternative dispute resolution or court orders, and nine children were returned to Japan.

• These figures do not include some voluntary returns in cases where the Foreign Ministry was not formally involved.

• Three returns from Japan and one to Japan reportedly resulted from the visitation assistance process rather than the return process.

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

Issues| LAW OF THE LAND

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

by Colin P.A. Jones

Special To The Japan Times

Apr 16, 2014
Article history

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New paper by Colin Jones

August 5, 2013

http://law.nus.edu.sg/asli/working_paper_d.aspx?sno=WPS031

 

 

ASLI Working Paper Series

Publication Title Towards an “Asian” child abduction treaty? Some observations on Singapore and Japan joining the Hague Convention
Publisher Asian Law Institute
Series WPS031
Publication Date Aug 2013
Author/Speaker Colin P.A. Jones
This paper will briefly compare the regimes adopted by Japan and Singapore for adopting the Hague Convention on the Civil Aspects of International Child Abduction, together with the two countries’ underlying family law systems in order to consider whether an “Asian” approach to the treaty may develop in the future.
View/Download (PDF) File :

http://www.japantimes.co.jp/community/2013/06/11/issues/hague-convention-on-child-abduction-may-shape-japans-family-law-or-vice-versa/#.UbetvvmUSeQ

 

Hague Convention on child abduction may shape Japan’s family law — or vice versa

Proof will come with the implementation of convention

BY COLIN P. A. JONES
 JUN 11, 2013

Giant Hello Kitty-emblazoned kudos to Japan for finally signing the Hague Convention on International Child Abduction. Now comes the hard part: actually making it work.

Mistakenly identified by some press accounts as an accomplishment of Prime Minister Shinzo Abe, Japan’s accession is probably more the fruit of prolonged slogging by anonymous public servants. In the fall of 2012 a senior bureaucrat involved in implementing the treaty assured me it would be signed about the time it eventually was. The fact that elections were pending in December and a change of government was a near-certainty did not factor into the prognosis!

Now it is up to these same bureaucrats to actually implement the convention, though much of the diplomatic pressure that may have been a primary motivator in the past is gone (for now). This does not mean they are not trying, and the treaty alone will be meaningless if it is not reflected in domestic law. So the Diet must now turn to the equally important task of passing the bill containing the proposed Implementing Act that was submitted in March. Assuming that the bill is passed as is, it is probably worth reflecting on its contents.

I recently spent a month in Singapore, which joined the Hague Convention in 2010 and implemented it with a short statute that adopted most of the treaty verbatim as domestic law. With 160 articles extending over 110 A4 pages, Japan’s Implementing Act stands in stark contrast in its baroqueness, and suggests a similarly long and complex implementation process. Additional rules of practice will be issued by the Supreme Court after the act is passed.

To be fair, unlike common law jurisdictions (like Singapore) — where courts have always had a broad range of undefined inherent and equitable powers, particularly when it comes to the welfare of children — Japanese courts only have those powers given to them by statute. Insofar as the Hague Convention requires signatories to have special expedited procedures for returning abducted children, these have to be defined in order for Japanese judges to do their jobs.

Thus, much of the Implementing Act’s bulk comes from the fact that it essentially creates an entire procedural code covering not only trials but appeals and enforcement just for return order proceedings under the Hague Convention. One provision in the act (Article 73) specifically empowers the presiding judge in such cases to both allow parties to speak and order them to shut up, illustrating how few inherent powers Japanese judges actually have.

With much of the Act devoted to establishing multiple stages of proceedings, each of which is a potential source of delay or disappointment for a parent seeking return of a child, some might question whether Japan actually intends to engineer a process that could lead to that result. Again, some of this apparent complexity may simply be a factor of how Japanese law is structured. Nonetheless, one might question whether in going so far as to allow a losing party to apply for a new trial (after appeals are exhausted!) on a variety of grounds that apply to other civil trials (and which include “the first trial missed something really important”) is consistent with the convention’s mandate of achieving the prompt return of abducted children.

Even if returns are ordered, enforcement may be an issue. The enforcement process established by the act stops short of allowing the imprisonment of recalcitrant abductors or permitting bailiffs to physically seize children (which is unlikely to be good for them anyway), but it would allow a bailiff to enter private property where the child is located accompanied by a designated “third person” (the requesting parent?), who may be able to do a little bit more.

The act is particularly abstruse on the subject of enforcement, and we may just have to see how (if) it works in practice. Whatever the act does say, however, it should be noted that when the draft form was opened up to public comment, the courts themselves expressed a lack of enthusiasm for any form of “direct” enforcement.


Foreign observers will likely pay close scrutiny to the factors a court can take into account in deciding to refuse a return order based on the limited number of exceptions in the convention.

Although the treaty does not address domestic violence, the act allows a judge to consider the likelihood of the child or the taking parent being subject to harmful physical or verbal behavior (defined in the act as “violence, etc.”) if the child is returned. This is an unsurprising provision given that much of the public debate on the convention focused on the “Japanese woman fleeing from abusive foreign husband” scenario. It can also be seen as an effort to address what some commentators identify as a deficiency in the Hague Convention.

What seems equally problematic, however, is the fact that the act would also allow a court to consider whether there are circumstances rendering it difficult for the taking parent or the parent requesting return to care for the child in the country of origin. Depending on how you read this, it comes very close to allowing a judge to do a type of custody evaluation, despite the fact that the convention clearly states that decisions about returns should not be treated as determinations on the merits of any custody issue.

Needless to say, how these provisions are actually put into practice by judges remains to be seen. These will be judges in the Family Courts of Osaka and Tokyo, the two courts that will have jurisdiction over Hague cases. While the court in the nation’s cosmopolitan capital may be well acquainted with international custody cases, I have heard Kansai lawyers question whether Osaka is up to the task. Again, time will tell, and perhaps many cases will be resolved amicably through mediation.

This is an area where I have both hope and significant concerns. Mediation plays a large role in many Hague jurisdictions and will likely be important in Japan too, possibly even representing a business opportunity for arbitration associations and other providers of dispute resolution services. My hope is that such providers offer panels that include non-Japanese mediators and will thus be more approachable to foreign parents.

My concern comes from the provisions of the Implementation Act allowing judges to submit return cases to court-administered mediation. While this can only be done if both parties consent, judges often have a variety of tools at their disposal to “encourage” agreement. If this results in return cases being funneled into the same sort of mediation already used in domestic custody cases and held before mediators who must be Japanese nationals, it may not be good thing for a non-Japanese parents. This may be particularly disadvantageous since the Act is unclear on if or how a parent who has agreed to mediation can subsequently reactivate return proceedings if the talks seem fruitless.


Much of the foreign pressure to join the Hague Convention was likely driven by the expectation that doing so would result in Japanese courts behaving differently in abduction cases. If you never heard about any pressure on Singapore to ink the treaty, it might be because courts in that country were ordering children returned long before it actually signed — with orders based on determinations of what was best for the child in each case.

While the Implementing Act is complex and detailed, I am not sure that it can be characterized as clearly mandating a change in judicial behavior in terms of ultimate results. For example, despite its great length, it lacks a general statement to the effect that the return of children to their home jurisdiction is the rule rather than the exception — a fairly basic assumption of the Hague Convention.

Furthermore, because it has been socialized in Japan as a treaty that “must” be signed due to foreign pressure rather than because it represents a widely accepted view of what is in the best interests of children (i.e., not being abducted), Japanese courts could conceivably continue using their own internalized views what is best for children, which has always resulted in children remaining in Japan. Again, time will tell, fingers crossed.

On a very basic level, however, implementing the Hague Convention in Japan involves grafting a treaty devoted to the welfare of children onto a domestic legal regime in which it is rarely a consideration. Japanese family law is based primarily on consensual transactions — including divorce and child custody arrangements — in which courts or other authorities play virtually no supervisory role whatsoever. Even in the minority of cases where courts do get involved, their primary goal is to encourage an agreement — any agreement — rather than achieving a result that is in the best interests of the children affected. Joining the convention may thus bring greater attention to some of the deficiencies in the laws that apply in domestic child custody disputes — deficiencies that appear to have been taken into account in drafting the Implementing Act.

The following is one example. In addition to return orders, the Hague Convention may also be used by a parent to exercise rights of access (visitation) between signatory nations. The Implementing Act provides the mechanism for doing so: A foreign parent seeking visitation with a child taken to Japan may apply to the Ministry of Foreign Affairs (MOFA) for assistance. In doing so, the parent must submit (among other things) proof that they are entitled to visitation or access under the laws of the country in which the child had been living before coming to Japan.

Going the other way, a parent in Japan may apply to MOFA for assistance with visitation with a child taken to another country. In dealing with this latter scenario, the act seems to go out of its way to avoid referring to “rights of access under Japanese law.” I am speculating, but there may well have been a desire to avoid any clear reference to access rights under Japanese law, since it is not clear that such things exist in any meaningful sense.

A clear reference to such rights in a Japanese statute would open the door to them being asserted in domestic cases, or at least invite demands for an explanation that such rights be defined for all parents in Japan, not just those seeking relief under the Hague Convention. Indeed, my own view is that a child taken from Japan to a fictional country that had an identical Implementing Act might actually find it impossible to meet the act’s requirement that they prove they are entitled to access under Japanese law. It will thus be interesting to see how this aspect of Japanese law is explained to foreign courts and central authorities.


The act’s use of the term “rights of custody” is also interesting. A key concept in the convention itself, “rights of custody” is defined there in a way that attaches particular importance to the “right to determine the child’s place of residence.” The Implementing Act refers to “rights of custody” but without defining it. Yet Article 821 of Japan’s Civil Code clearly identifies the right to designate a child’s residence as one of the rights that come with parental authority.

However, as many parents have discovered, this is an apparently meaningless right once the other parent has decided to unilaterally designate a different residence by abducting the child. Here again, the drafters may have wished to avoid drawing attention to potential conflicts with domestic law by seeking to limit “rights of custody” to being a concept that only applies in convention cases.

If this was the intent, I doubt it will be successful. Parents of abducted children are understandably very persistent, and the many Japanese parents who will never benefit from Japan joining the convention because their cases are not “international” are watching the implementation process closely and with great interest. A convention regime that treats foreign parents better than Japanese parents is probably untenable, so perhaps the act will lead to changes in domestic family law too. Again, fingers crossed.

Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Send comments and ideas tocommunity@japantimes.co.jp.

http://www.policymic.com/articles/15499/from-the-shadows-documentary-reflects-sad-reality-of-government-sponsored-child-abduction-in-japan

This incredible documentary has been/is being internationally censured but seems to be available through these links:

http://www.youtube.com/watch?v=P3g3g_0r01c

http://v.youku.com/v_show/id_XNDA2MzE2Nzcy.html

 

For those who are unable to view the documentary online, here is the transcript:

Transcript

WILLACY: The cherry blossoms are out for all to see. It’s a spectacular sight that lifts the spirits of Japanese and travellers lucky enough to be here. It’s difficult to imagine a time when Japan was completely isolated from the outside world, but under Sakoku from the 17th to the 19th centuries, no foreigner could enter nor any Japanese leave the locked country on the penalty of death. Eventually Japan opened up and foreigners returned but many of the old insular ways continue to this day.

Just ask parents trapped in the anguish of failed marriage, locked out from the lives of their children and with nowhere to turn.

ALEX KAHNEY: “So I thought my wife can’t kidnap my kids. I’ll just go to the police. The first two or three months I was shattered. The first six months I was numb”.

REGAN: “And when I got home I kind of just fell apart and my true feelings of you know not being able to trust him or being really angry with him came out”.

CRAIG MORREY: “Basically it all came down to I don’t want to be with you, I don’t want to be with you, I’m leaving. I didn’t even know my daughter was born”.

WILLACY: Tonight we reveal how Japan has long condoned one parent snatching children away from the other, not just from within its own jurisdiction but from around the world. This is the story of how Japan became a haven for parents abducting their own children and of the paralysing heartbreak and helplessness of those parents left behind.

Under Japanese law there’s no such thing as dual custody. The courts here almost universally award all legal rights over a child to the one parent – meaning the other parent is frozen out of their child’s life. Often the only contact the forgotten parent is allowed is a few photographs of their child every year.

Craig Morrey isn’t just a father. He’s a 24 hour a day carer for his profoundly disabled son Spencer. After terrible complications during birth, Spencer was left with catastrophic brain damage and severe cerebral palsy.

CRAIG MORREY: “He can’t swallow, he can’t move on his own. He obviously can’t sit up. He can’t close his eyes and obviously kids can be very, very resilient but in Spencer’s case he was essentially born dead”.

WILLACY: The Chicago native and reproductive biologist came to Japan 15 years ago to further his research, but he quickly fell for and married a Brazilian-born Japanese woman. While they were both struggling to care for their first born son, Craig Morrey’s wife discovered she was pregnant with their second child and it proved too much for her.

CRAIG MORREY: “So she started to say she wanted a divorce, she wanted to leave. She talked about wanting to you know not necessarily commit suicide but to die”.

WILLACY: Five months into her pregnancy, his wife disappeared leaving Craig Morrey to care for Spencer on his own and shut out of the birth of his second child.

CRAIG MORREY: “I didn’t even know my daughter was born. I found out that she was in the hospital and I went to try to see her with Spencer and she had called security and I was denied to see my daughter”.

WILLACY: “How old was she when you finally got to see her?”

CRAIG MORREY: “Six and a half months in a courtroom for 15 minutes with her mother wailing in the background. Not the ideal circumstances to meet your daughter”.

WILLACY: Craig Morrey has a night job. He’s unable to afford specialist care so he takes his son along to the bar he runs in the town of Okazaki. In between pulling beers, he has to clear Spencer’s airways to ensure he doesn’t suffocate. Despite his wife abandoning their son, the court awarded her guardianship of their baby daughter Amelia and now, still fighting that ruling, Craig Morrey has been placed in an extraordinary dilemma by the court – if he takes his son to the United States where he can get better care for him, he’s been told he’ll lose the right to see his daughter.

CRAIG MORREY: “I’m sort of put in the situation where I either have to abandon my daughter and leave her with someone who I don’t think is a particularly good role model at the moment or go back and get better care for Spencer which is just, for a lack of a better word idiotic”.

WILLACY: But this isn’t just a system layered with rulings many parents regard as idiotic – it’s a system in which court rulings are often flouted or ignored by parents who abduct their children. Englishman Alex Kahney is leaving Japan after 19 years. He’s lost his job, he’s broke and so he can’t afford to stay and that means he’s leaving behind everything he cares about – his two daughters.

ALEX KAHNEY: “They just love their daddy. They were real daddy’s girls. Every time we got in the car there’d be a fight who could sit next to daddy in the front”.

WILLACY: Two years ago with his marriage to his Japanese wife falling apart, Alex Kahney returned home from work one day to an empty house and an empty bank account.

ALEX KAHNEY: “I thought uh oh, something’s wrong here. I went to the police. I said to the police, ‘my wife’s taken my kids out of the house without my permission and we’re not divorced. There’s no agreement in place, there’s no court order and she’s refusing to let me speak to the children’. The policemen laughed. They both had a good chuckle about it”.

WILLACY: Alex Kahney says his marriage broke down after his wife reneged on an agreement to raise their children in England for a while. We tried to get his estranged wife’s side of the story.

YUMI: “We’ve heard your husband’s side of the story. Now we’d like to hear both sides of the story”.

WILLACY: But like other Japanese spouses we contacted, she refused to be part of this programme. Despite a court order giving Alex Kahney monthly access, his wife hasn’t allowed him to see his children since she snatched them two years ago. So his frustration has turned to desperation. It’s a harrowing scene as the father tries every now and then to connect with his daughters as they leave school. [Alex walking alongside them outside school trying to talk to his daughters] His daughters don’t want to listen. They run from their father without saying a word.

ALEX KAHNEY: “They just ignore me. They just ignore me. A child ignoring her own father, you know I’ve been disowned. I’m nothing. I might as well be a ghost”.

COLIN JONES: “When we talk about family law in Japan today, it’s a slight exaggeration but there really isn’t any. There is no body of law called family law”.

WILLACY: At this protest in one of Tokyo’s busiest districts, so-called left behind parents – both Japanese and foreign – have joined forces. They’re a very vocal part of an effort to stop Japan remaining a black hole for international and domestic child abduction. The country’s been under pressure from foreign governments and parents to sign the Hague Convention on the Civil Aspects of International Child Abduction. The Convention sets out the rules for the prompt return of kids abducted across international borders by one of their parents. Every top industrialised country in the world – except Japan – has signed it. Japan says it plans to but nobody here is holding their breath and the courts have been very reluctant to break the mould. According to local media reports, there’s not been one recorded case of a Japanese judge ordering the repatriation of an abducted child.

COLIN JONES: “Who wants to be the first judge to order a crying child to be taken away from a crying Japanese mother and given back and sent overseas? Nobody, there’s nobody in the system I think who benefits from being the guy who ordered the crying child to be taken away”.

(DISTRESSED WOMAN AT MICROPHONE BREAKS DOWN)

WILLACY: It’s not the sort of meeting they’re used to inside Japan’s parliament complex.

WOMAN: “I just want to spend a normal time with my children every day. And I don’t understand why this has happened”.

WILLACY: These parents of abducted children and a handful of Japanese MPs have come today to learn more about the Hague Convention. The man they’ve come to listen to is Colin Jones, a professor of law and Hague specialist from Kyoto’s Doshisha University – but his message isn’t encouraging.

PROFESSOR COLIN JONES: “Alienations will not end just with this. I don’t think there will be much improvement in international abductions”.

WILLACY: Professor Jones believes Japan could treat the Hague Convention very much like it does the international treaty on whaling – in other words, by using loopholes to largely ignore it and by putting national interest ahead of global cooperation.

PROFESSOR COLIN JONES: “You see this attitude up through the leadership levels in some situations, so it wouldn’t surprise me if the same thing happened with the Hague Convention”.

WILLACY: American mum, Regan Haight, didn’t take long to realise she could never rely on the Japanese legal system to get her children back. Her Japanese husband abducted their son and daughter from their home in Utah and took them to Japan where the police made it very clear to Regan Haight that they regarded this as a family matter.

POLICE: “I’m sorry, we don’t consider your case an abduction or even a crime”.

WILLACY: With no help from the US Government or Japanese authorities, Regan Haight decided to take matters into her own hands. It was a radical and very risky course of action.

REGAN HAIGHT: “I was told that I could do a snatch and grab kind of thing that was ….could be traumatic and most likely unsuccessful …and get myself into trouble”.

WILLACY: Regan Haight turned to this man, former British military special forces operative Steve Johnson is known in the business as a child recovery specialist.

STEVE JOHNSON: “Japan has a reputation around the world as being difficult, some say impossible to recover children from. I am robust, I’m head on, I’m in the face of anyone I’m going up against and I don’t leave until I get the job done”.

REGAN HAIGHT: “It gave me confidence and you know what I needed was support from somebody whose main goal was to help me”.

WILLACY: Steve Johnson soon joined Regan Haight in Japan where the case took another dramatic twist. Regan Haight’s husband Shuta revealed the children had been abducted a second time – this time by their Japanese grandmother who was effectively holding them for ransom.

REGAN HAIGHT: “At one point she told me that I had to sign over, sign my name off the house and that I could see the kids. You know so we did that. Then she wouldn’t let me see the kids after that. You know we had to pay her fifty thousand dollars, then we could see the kids and you know I didn’t…. I didn’t have that money”.

WILLACY: After a period of subtle negotiation, Steve Johnson decided to apply the blow torch at a street side rendezvous filmed by other abandoned parents documenting the traumatic consequences of child abduction.

STEVE JOHNSON: [to Shuta at a road side meeting] “Your mother must understand that things are about to get bad. TV cameras are going to be here, the police are going to be called. Then Interpol will take over. The easiest thing for her to do Shuta is to hand over the children this afternoon, and it all goes away. Everything disappears. If your mum wants to swipe the kids up and run away – then good luck to her”.

WILLACY: With that the ultimatum was delivered and the deadline set. But the odds were well and truly stacked against Regan Haight. How would her ordeal end?

Australian Chayne Inaba believes he knows the perils of pushing too hard to right the wrong of child abduction.

As this video indicates family life seemed pretty happy and contented for the medical trauma specialist. Four days later his wife abducted their daughter Ai and brought her here [family home].

“This is your family home over there?”

CHAYNE INABA: “Yep that’s the family home, the home of the Inova family”.

WILLACY: “And if you went to the house there’d be big problems?”

CHAYNE INABA: “There’d be major problems which I would say the police would be involved and a lot of nasty things would happen yeah”.

WILLACY: Chayne Inaba has already had a run in he thinks was all about scaring him off. Not long after being warned by his wife’s family to stay away from his daughter, he was attacked inside his own home.

CHAYNE INABA: “I walked inside, closed the door, walking down towards the living room and I was attacked by a brick from the bathroom. I had two black eyes, fractures – I had a lot”.

WILLACY: He has his suspicions about who was responsible but the police weren’t interested.

CHAYNE INABA: “The brick had skin and hair and blood on it and they said, to my knowledge, that they told the Australian Consulate that the brick wasn’t the weapon”.

PROFESSOR COLIN JONES: “Parental abduction is an effort to eliminate the other parent from the child’s life and the sad cases we see here repeatedly are the child can’t talk to their father or sometimes their mother anymore. They’re taken away at a young age, they don’t get exposed to their foreign parent’s native language, they only speak Japanese. The foreign parent doesn’t speak Japanese. It’s a destruction of one half of the child’s identity to do that”.

WILLACY: Government MP Masae Ido is a leading sceptic of the Hague Convention and a chief defender of Japan’s approach to family law.

MASAE IDO: “While Westerners call it abduction it’s common among the Japanese that a mother and child return to the mother’s parents’ home after a divorce”.

WILLACY: She has a better understanding of this issue than most because as her political opponents gleefully advertise on the internet, she snatched her three children away from her first husband.

MASAE IDO: “Like other parents, I left a note so the other parent knew where the children were and understood that they were at a safe place. Not many people think of this as kidnapping or a crime. If anything, they think it’s not a bad thing. It’s really a custom”.

WILLACY: It’s a day out for happy families at the Osaka aquarium, but the group handing out these balloons is also dishing out a blunt message. Craig Morrey and other left behind parents have launched a public education campaign about an issue few Japanese are even aware of.

CRAIG MORREY: “Do you know that they only have a sole custody system in Japan”.

FATHER: “I’m sorry, I don’t really know”.

WILLACY: This custom of sole custody has torn apart parents and children from all corners of the world. But while local awareness of the issue is limited, Japanese do figure prominently among the victims. Every year 150,000 divorced Japanese parents join the ranks of the dispossessed.

RYOMA TAKAHASHI NEW: “My love for my children and my desire to see them has not changed”.

WILLACY: Ryoma Takahashi is one such parent and because of his profile, the recent abduction of his children has sparked media interest. His wife took their sons for a short break but never returned and the renowned local artist has now been frozen out of their lives.

RYMOA TAKAHASHI: “My mind went blank – what I thought and what to do – it was really blank. It was as if I lost sight of tomorrow… I lost sight of the future. I didn’t know what to do. The point is that my children were abducted by her and they were stolen from me. It’s become a country where whoever abducts children wins. In my case the judge told me on the first day, ‘You haven’t seen your children for seven months now. Did your children contact you? No, right? Your sons don’t want to see you anymore’.”

WILLACY: He’s trying desperately to win back his children but his wife has countered with a claim of domestic violence. The abuse? That Takahashi suggested his wife should give up work because of the stress it was causing her.

RYMOA TAKAHASHI: “She’s accusing me of verbal violence – but just what is verbal violence? It seems like my suggestion that she quit her job was verbal violence. I think it’s a major problem that the police accept that as domestic violence”.

PROFESSOR COLIN JONES: “Basically anything can be abuse. Verbal abuse is covered…. financial abuse. I’ve seen literature which includes ignoring someone as a form of abuse”.

WILLACY: For Regan Haight there was a happy ending. After months of trying to get her son and daughter back from the clutches of her Japanese husband’s family, the efforts of her private child recovery specialist paid off. The children were surrendered.

REGAN HAIGHT: “It was, it was amazing. It was a surprise. I didn’t expect them to walk through this door. I was expecting that you know that this was going to go on for a long period of time and then the sliding glass door opened and they came through and it was just, it was a relief. It was just, it was amazing”.

WILLACY: For the man who helped get her children back, it’s proof that kids can be saved from Japan’s black hole of abduction.

STEVE JOHNSON: “There is only one way to recover children that have been abducted and that’s to get on a plane, to land in country and get on with it, and confront people and upset people, ruffle feathers”.

WILLACY: But the happy endings are rare indeed, overwhelmed by the thousands of stories of heartbreak, American Craig Morrey will continue to care for his son Spencer and continue to fight to be with his daughter Amelia and he’ll continue in his struggle to change the system in Japan.

CRAIG MORREY: “Every three minutes a child loses contact with a parent in Japan through divorce. Every three minutes. And you know the government doesn’t want to acknowledge that because they don’t know how to deal with it and they’re not willing to deal with it”.

CHAYNE INABA: [footage of his children] “Sometimes it’s hard to watch”.

WILLACY: Chayne Inaba continues to fight for his daughter in the courts but he knows he may not get to see her for many years.

CHAYNE INABA: “And she’ll know that her father [upset]…… her father did everything humanly possible to keep the family together and protect her. She’ll know that”.

WILLACY: They once loved to play music together but for Englishman Alex Kahney, it’s sayonara to Japan and the daughters he can’t see and who will no longer speak to him. While recently packing up his Tokyo home he discovered a note left for him by one of his daughters before she was snatched away. He turned it into a song for them called “Someday We Can Meet”.

ALEX KAHNEY: “I didn’t want you to be out of my life, or for me to be out of yours. It wasn’t me that did this to you. I’ve done my best to get you back. I think about you all the time. If you want anything I’m here and I’m looking forward to that day”.

http://accjjournal.com/left-behind/

 

LEFT BEHIND

PARENTS FIGHT FOR JUSTICE IN JAPAN

BY MIKE DEJONG
Apr 1, 2012 | 5 Comments | 251 views

After decades of reluctance, Japan is set to join the 1980 Hague Convention on the Civil Aspects of International Child Abduction. This international treaty, signed by more than 80 countries, is designed to prevent children from being taken from their home countries. While experts say joining the Hague Convention is a positive first step, critics argue that the real issue in Japan is not child abduction – but a lack of enforceable joint-custody laws to protect the rights of parents and children following divorce. This month, we examine the issues surrounding child custody and show why divorcing one’s spouse often means losing one’s children in Japan.

ILLUSTRATION BY JOHN SHELLEY
It was mid-October 2009,when Masako Akeo went to watch a choir concert at her son’s school. Akeo hadn’t seen little Kazuya in some time and was excited to hear him sing and possibly even have a word with him. After waiting patiently for the performance to end – and the applause to die down – Akeo approached her only child. 

“Kazuya!” she called out.

The little boy turned and there was a moment of recognition. But Akeo never got to follow up. To her surprise, the principal marched over and grabbed her arm. “Why did you come here?” he barked. “Why did you interrupt the concert?”

Akeo was pulled into a separate room and interrogated. She was ordered to leave the school and not talk to her son again.

“That choir concert was in the morning,” she says. “I waited outside the gate until six o’clock. But he did not come out.”

Akeo was treated like a criminal for wanting to see her son. But she was not a criminal. In fact, she was a victim of child abduction and parental alienation. And she remains so to this day.

In late summer 2006, Kazuya was spirited away from the family home by Akeo’s Japanese ex-husband. Akeo tried everything to get her son back including hiring private investigators and going to court more than 60 times. Nothing worked. Despite being a desperate mother, she has only seen the boy three times since his abduction.

“I met him two times in the Family Court,” she says. “One time was one hour – the other time was 45 minutes.

“The last mediation, my ex-husband made an agreement. I could meet my son every two months. But then final mediation, he gave the court my son’s letter. The letter said: ‘Oh, I have to study to enter high school. It is quite difficult for me now (to meet you).’

“Always, I had hope. But that day finished everything. I can’t do anything about my son.”

Takaji Takeuchi can sympathize with Akeo’s desperation. On a warm spring night in March of 2011, he tried to talk to his son who had also been taken away by his Japanese ex-spouse several years before. Japan had been hit by the horrible 3/11 tragedy and Takeuchi, like many others, was concerned about his family. He found his son at home with his ex-wife.

TAKAJI TAKEUCHI HAS ONLY SEEN HIS SON KOUSUKE FIVE TIMES IN FIVE YEARS. (PHOTO BY MIKE DEJONG)

“They came out together,” Takeuchi says. “In front of my ex-wife, my son was standing. “I said ‘Are you okay?’ He said ‘Yeah, I’m okay. But why (did) you come here?’ I don’t have a father. I don’t need a father.” 

Both Takeuchi and Akeo’s children have been turned against them. It’s a common occurance for children separated from their mothers or fathers for lengthy periods of time. And it’s something that causes great pain on all sides.

“Every year, (at) New Year I say this year will be better,” Akeo says. “But you know, every year is getting worse. Still, I must keep going and keep doing something.”

Heartbreaking But Not Uncommon
These two cases are heartbreaking but not uncommon in Japan. In fact, there may be thousands of parents like them, who have lost contact with their children following a marital breakdown.

The reason is simple: there are no provisions for joint custody in Japan. In fact, under the country’s Meiji Era Civil Code, child custody is awarded to only one parent following a divorce, with the other parent is generally shut out. With no enforceable visitation rules, non-custodial parents generally lose access to their own children.

“Japanese Family Law is a misnomer in that there isn’t such a thing,” says Colin P. A. Jones, professor at Doshisha Law School in Kyoto. “There is not a statute that is called Family Law.

“There have never been a lot of substantive rules clearly laid out somewhere in a statute, which say parents have to do this for their children… or after divorce this is what’s supposed to happen.”

Jones says the parent-child relationship in Japan is defined in terms of a marital relationship, so essentially, divorcing a spouse also means divorcing one’s children. In the rare cases where visitation is granted, Japanese courts usually limit non-custodial parental time to a few hours per month. The custodial parent retains the right to cancel visitation at any time without penalty. This policy differs greatly from Western countries where the rights of parents are maintained and enforced – even after divorce.

“For a number of historical reasons, Japan has never really developed the notion that there are Constitutional rights associated with the parent-child relationship,” says Jones. “That is why child abduction – as we would call it – within Japan has been a problem as long, if not longer, than the international abduction cases have been.”

MASAKO AKEO HAS ONLY SEEN HER SON KAZUYA THREE TIMES IN SIX YEARS.
After a divorce in Japan, a non-custodial parent can no longer decide on their child’s health, education, living arrangements and schooling – even what name the child will carry into the future. It is common for custodial parents to move away from the other parent without notifying them of their child’s whereabouts. 

Critics say it’s a system that promotes and legitimizes child abduction and alienation.

Best Interests of the Child? 
In denying or severely limiting visitation, Japanese courts often reason that children “need protection” from the “trauma of divorce.” For example, in 2003, a desperate mother looking to visit her son was told by an Osaka High Court that “the child is satisfied with his current established lifestyle” with his father and new step-mother. The court denied the mother’s visitation request stating that “exposing the child to different lifestyles and methods of discipline can have adverse effects on the feelings and emotional stability of the child.”

This opinion flies in the face of research by child psychologists, psychiatrists and child welfare experts worldwide who argue that, despite the conflicts inherent with divorce, children need contact with both parents to grow up as healthy, well-adjusted adults.

“Empirical and longitudinal studies show that maintaining contact with non-custodial parents is beneficial for children’s well-being,” says clinical psychologist Kazuyo Tanase, a professor at Kobe Shinwa Women’s University.

In an interview with NHK, Dr. Tanase said she believes the current visitation system in Japan does not serve children or parents well. “It should be changed. Parents with no custody should be able to spend substantial amounts of time with their children like weekends and long vacations with overnights, not just several hours a month. Secondly, couples shouldn’t be allowed to separate or get divorced without a parenting plan in place. Finally, couples should be able to choose between sole custody and joint custody.”

HAPPIER DAYS FOR MASAKO AKEO AND HER SON KAZUYA.

In recent months, diplomatic officials from the US, Canada and Europe have lobbied Japan to implement a joint custody system. Senior members of the Obama Administration including Secretary of State Hillary Clinton have also pushed Japan to join the 1980 Hague Convention – an international agreement that protects children from abduction. Japan is the only G8 country yet to sign the accord. The Japanese government has pledged to join the Hague Convention this year and the Justice Ministry has already released legislative proposals due to be submitted to the Diet this spring. However, critics say the proposals include so many conditions that the law will be virtually unenforceable.

“It’s pretty depressing,” says Jones, after reviewing the proposals. “It seems pretty clear that Japan is going to implement the Hague based on a number of assumptions that conflict with the assumptions of the Hague Convention.

“The implementation regime (in Japan) is basically going to assume that the taking parent has a good reason – they’re going to protect the taking parent until the left-behind parent proves otherwise.
“I don’t see it really getting anywhere – really making any changes.”

Black Hole For Child Abduction
Japan is a signatory of Article 10.2, the United Nations Convention on the Human Rights of the Child, which reads: “A child whose parents reside in different states shall have the right to maintain on a regular basis, personal relations and direct contacts with both parents.”

Yet personal relations and direct contact with both parents often does not happen in Japan. And, with its lack of respect for international court rulings and a decades-long reluctance to join the Hague Convention, some critics call Japan a “black hole” for child abduction.

In fact, the US State Department warns that “Abductions to Japan represent one of the largest portfolios in the Office of Children’s Issues and are among the most difficult to resolve. To date, the Office of Children’s Issues does not have a record of any cases resolved through a favorable Japanese court order or through the assistance of the Japanese government.”

Two high profile cases recently highlighted the need for Japan to get serious about child abduction. Last December, Wisconsin doctor Moises Garcia saw his nine-year old daughter returned after a four-year fight. The child had been abducted to Japan by her mother, who ignored a US court order granting the father custody. The child was returned as part of a plea bargain agreement when the mother was arrested in Hawaii on child abduction charges. In 2009, the Japanese ex-wife of American Christopher Savoie also ignored a US court order and took the couple’s children away. Savoie traveled to Japan to try and get the children back but was himself arrested on abduction charges. The charges were later dropped but Savoie was forced to leave Japan without his children.

In both of these cases, Japan failed to recognize US court decisions and experts say this highlights not only problems with Japanese law but also the country’s disregard for international court rulings.

Left Behind Parents
An organization known as Left Behind Parents Japan (LBPJ) has been campaigning for Japan to join the Hague Convention and to implement an enforceable visitation system. The group – which brings together foreign and Japanese parents who have lost access to their children – has taken its fight to senior levels of the Japanese government, including meetings with a former Japanese Justice Minister.

“Meeting with (former Justice Minister) Eda Satsuki was extremely important because he’s been a lawyer for over 40 years,” says LBPJ spokesperson Bruce Gherbetti. “He was a Family Court Judge early in his career, so he understands the issues at play.

“And I believe that he inherently believes that the solution is for Japan to sign the Hague Convention.

“Ultimately, Article 818-819 needs to be changed. That’s the (article of the) Civil Code that speaks to sole parental authority.

“Kyodo shinken is the answer,” says Gherbetti. “Kyodo shinken or joint custody.”

Not Only A “Foreign” Matter
From the attention given to high profile international abduction cases, one might assume the child abduction issue is a “foreign” matter in Japan. However, it is not. Japan’s divorce rate is now more than double what it was in the early 1970s and statistics show that nearly half of all marriages end in divorce (nearly 40 percent in 2010) – which means there could be thousands of permanently separated Japanese parents and children. At least 20 percent of the cases also involve left-behind mothers.

“If you’re a public school teacher, you’re looking at a class where one-third of the children probably have experienced a parental divorce,” says Jones. “Just nobody talks about it and the law really has not addressed what should happen to children after divorce. What is in their best interests after divorce.”

Despite all of the publicity surrounding the issue, it does not appear that help is coming soon from the Japanese government. In an interview with the Japan Times on February 1, 2012, Japan’s new Justice Minister Toshio Ogawa had this to say about modernizing the Civil Code: “If we allow dual parental rights, it will be difficult to decide which parent the children live with and to make other decisions. I believe a major complaint that people seeking dual parental rights have is that they don’t get to see their children enough. That can be largely solved by ensuring visitation rights.”

“The problem is that visitation rights are not enforceable under the current system,” says Gherbetti. “You could talk about visitation rights all you want, but if one parent still has veto rights over the other, then visitation provisions are essentially meaningless.

“To continue to disallow dual parental rights is a human rights violation, plain and simple,” says Gherbetti.

LBPJ member Dennis Gunn adds, “If one side has tyrannical power over the relationship with your child, then sooner or later – and usually sooner – that is going to be abused.

“They have devised a system here that is guaranteed to cause the parents… and the children to suffer.”

 

PHOTO BY LOUISE ROUSE

Suffering is what Masako Akeo continues to do. Although she devotes much of her time and attention to helping other left-behind parents, she endures on-going nightmares about her son’s whereabouts. She doesn’t know where he is, what he is doing or whether or not he is safe. His childhood was cruelly stripped from her by a vindictive ex-husband and a system that supports child abduction. 

“I’m kind of an activist,” she says. “Maybe so my son can see TV or magazine or newspaper.

Okay, Mommy’s doing this for me. That’s why I’m doing this – for my son.”

 

A work in progress version of “From the Shadows,” a documentary about family child abductions in Japan, will be screened in Tokyo on April 9 at 6:00 PM.  This is being supported by the Harvard Club of Japan and will be held at the Tokyo Foundation (map).

There will also be a seminar earlier in the day starting at 1:00 pm. Dr. Colin Jones and Dr. Akiko Ohnogi will be presenting and it is shaping up to be a very educational day with many perspectives to be shared, and ideas to be exchanged.

The 4,000 yen charge for the film screening will go to cover the cost of the venue and also fund our final stages of post-production, notably the online edit and the sound mix. If you would like to attend one or both events, please RSVP to john Gomez at: john.gomez.83@post.harvard.edu .

Here is a video invitation to the screening:

http://www.youtube.com/watch?v=cAv5pcqWogY&feature=youtu.be

Thank you, Colin Jones and Kevin Brown, for getting this out!

http://search.japantimes.co.jp/cgi-bin/fl20100420zg.html

http://search.japantimes.co.jp/cgi-bin/fl20100420hn.html