The following has kindly been translated for Children’s Rights Council of Japan by a U.S. licensed attorney who is a native speaker of Japanese. It is a translation of the Japanese Central Authority’s Application for Visitation Procedures section and is for those parents who are residing in the United States seeking Visitation Rights for Children located in Japan.

LBPs Requesting Visitation
(With respect to the Hague Convention Central Authority)

1. Before Applying – Grounds for Dismissal
Those who request Visitation can apply for “Assistance for Visitation or Contacts with a Child in Japan” through the Central Authority. However, if any of the Grounds for Dismissals below apply (under Act for Implementation of the Convention on the Civil Aspects of International Child Abduction Article 18 (1)), your Application for Assistance will be dismissed. Therefore, Applicants must verify whether their Application fall under any of the following categories:

① The child is over 16 years old;
② It is known that the child is not present in Japan, and the country of the child’s presence is unknown;
③ It is known that the child is present in a Hague Non-Member country;
④ It is known that the child’s location and the Applicant’s (LBP’s) residence or habitual residence is within the same Hague Member country;
⑤ It is known that the Applicant’s residence or habitual residence in within Japan AND it is known that the LBP does not have a resident or a habitual resident in any other Hague Member country;
⑥ It was known that immediately prior to separation from the child, the child’s habitual residence was within a Hague Non-Member country; and
⑦ It is known that under the laws of the country, state or local area of the habitual residence of the child, immediately prior to the
separation of the child, the Applicant was prevented from visiting or meeting the child.

2. Brief Summary of Procedures
The following system is for Applicant’s whom are not able to see their children despite the fact that they have received Visitation Rights
accordingly to the laws of the original habitual residential country.

Hague chart

3. How to Submit an Application
As shown above, an Applicant may submit an Application to the Japanese Central Authority.

If the Applicant is submitting an application to Japanese Central requesting Support in Visitation or Other Contacts with the Child, Applicant must fill in and submit the Designated Application Form along with the Necessary Documents.
※ LBPs who are seeking Visitation Rights through Japanese Courts may also directly Petition to the Tokyo/Osaka Family Courts. For more information on how to petition, please directly contact a Japanese Attorney or the Tokyo/Osaka Family Courts (in the original document it advises the Applicant to contact any Japanese Family Court. However, under the page for “Request for Assistance in Return of a Child,” it only designates the Tokyo/Osaka Family Courts as a contact.) However, please note that the Japanese Family Courts only accept communications in Japanese.

4. Procedural Steps to be Taken by the Central Authority Upon Receipt of the Application
(1) Discovering the Child’s Whereabouts
In cases where the child’s caretaker is residing is unknown, the Central Authority, through assistance of the Japanese Administrative Agencies and/or the Local Public Agencies shall investigate the child and the caretaker’s whereabouts.
(2) Decision to Support
After reviewing the Application under the terms of the “Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (http://www.japaneselawtranslation.go.jp/law/detail_main?re=02&vm=04&id=2159), the Central Authority shall make a decision on whether or not to Assist the Applicant through either one of the following actions and notify the Applicant of the action.
(i) Decision to Assist;
(ii) Dismiss the Application; or
(iii) If the child is found to be residing in another Hague Member Country, the Central Authority shall forward the Copies of the Application along with the Accompanying Documents to that Country.
(3) Clerical Duties of the Central Authority upon Decision to Support the Application
If under the Hague Convention it is desirable to resolve the problem directly between the Taking Parent (TP), and the
Applicant, and the TP and would prefer mediation, the Central Office shall assist with Communications between the
Applicant and the person interfering the Contacts with the child, and refer the Applicant and the TP to other ADR
Agencies or Legal Professionals Referral Programs.

5. Family Court Procedures Regarding Child Visitation
Applicants who are requesting Visitation with a child residing in Japan through the Central Authority may separately Petition to the Japanese Family Courts for (Domestic) Litigation or Mediation.
Procedures for Visitation through the Japanese Family Courts basically shall be based on Domestic Laws of the Japanese Family Courts under normal procedures, unless the issue is to be handled specially for Jurisdictional Issues or Access to Court Records.
For further information on Family Court Procedures see: http://www.mofa.go.jp/mofaj/fp/hr_ha/page22_000873.html
(I shall be able to translate this section soon).

6. Support for Visitation (Introducing Parents to Parenting Coordinating Visitation Agencies in Japan)
By referring the involved parties to Parenting Coordinating Visitation Agencies in Japan, the Japanese Central Authority shall assist the involved parties with the (visitation) Orders decided upon Amicable Negotiations, Settlements, Mediation and Litigation.

According to United to End Genocide, a U.S. based anti-genocide organization, Dr. Kurt Campbell, a former high profile State Department official, is now involved in commercial efforts in Burma that may further encourage human rights abuses in that country.

During his years at the State Department Dr.Campbell chaired at least half a dozen meetings in Washington with left-behind parents and other left-behind family members with existing cases involving abducted children in Japan.  Participants traveled from all parts of the country at their own expense to attend the meetings, many having to spend significant funds to do so.

Each of these meetings, which were specific to existing child abduction cases in Japan, generally included about three dozen or more left-behind parents and family members, and at least one to two dozen officials from the State Department and other federal agencies.  The meetings were abruptly terminated by the State Department after July of 2011.  No significant progress was made on existing cases by the State Department and the State Department failed to secure the return of any abducted U.S. citizen children despite there being long standing criminal charges against many of the abductors holding the children in Japan.

http://endgenocide.org/former-u-s-official-encourages-investment-in-unstable-state-of-burma/

Former U.S. Official Encourages Investment In Unstable State Of Burma

Posted on March 27, 2013 by Julia Boccagno

Kurt Campbell has been invested in lifiting sanctions in Burma, despite human rights abuses. AFP/Getty ImagesKurt Campbell has been invested in lifting sanctions in Burma, despite ongoing human rights abuses. AFP/Getty ImagesFormer U.S. Official Encourages Human Rights Abuses to ContinueDespite opposition from the U.S. Campaign for Burma (USCB), Kurt Campbell, former Assistant Secretary of State for East Asian and Pacific Affairs, strongly influenced the Obama administration to lift sanctions on Burma in 2012 that were originally imposed more than two decades ago. The economic sanctions were enacted in September 1988 after the military regime committed human rights violations when they killed thousands during a series of peaceful protests.

While the Burmese Army, blamed for the systematic murder and displacement of innocent men, women, and children, continues to carry out crimes against humanity in the Kachin State, Kurt Campbell, in conjunction with his new consulting firm, the Asia Group, will lead the ACO Investment Group (ACO) in order to secure a contract to upgrade and modernize the Yangon International Airport in Burma. The ACO will work closely with Tin Naing Tun, a retired Brigadier General of the Myanmar Army and head of the Department of Civil Aviation (DCA).

Instead of reinstating sanctions on Burma, Campbell would rather encourage U.S. investment with human rights abusers in order to profit. He states, “This is a thrilling opportunity to help advance the progress Burma has made over the past couple years by enhancing prospects for economic investments, and ensuring connectivity for Burma with the Association of Southeast Asian Nations (ASEAN) and the world.”

U.S. Companies Support Campbell

Other consortium members of ACO include Boeing Professional Services, Burns & McDonnell Engineering, Fentress Architects, MITRE Corporation, and Union Consulting. Campbell plans on leading a trip to Burma early next month to pitch the ACO bid. According to the DCA, seven pre-qualified international firms are competing for the tendering of airport construction as well.

The Director General of DCA claims that the new airport, Hanthawaddy International Airport, is necessary because the Yangon International Airport cannot accommodate for the rising number of travelers to the country. Arrivals to Burma are expected to surge around 3 million in 2012—a 22% increase on last year that places it above its 2.7 million threshold.  Potential plans state that the Hanthawaddy International airport, located in the central Bago region, will occupy a site nine times larger than its original and will have the capacity to hold 5.5 million passengers.

Revolving Door Politics Corrupt Burma

As one of the key architects of the Obama administration’s Asia “pivot,” Campbell doesn’t waste time transitioning from a legislator to a consultant. After finishing his tenure in public office in February 2013, he announced a few days later that his former deputy assistant secretary, Nirav Patel, would be the chief operating officer of his newly established advisory and investment network, the Asia Group.  The Asia Group focuses on bringing U.S. markets into Asian markets and vice versa.

Revolving door politics refer to the movement of high-level employees from public to private sector jobs. Therefore, there is a “revolving door” between the two sectors as many legislators become consultants for the industries they once regulated. Consequently, conflicts of interest cloud the reasoning of such leaders to practice unbiased decision making. Because Burma has an extended and complicated history of human rights abuses implemented by a brutal military regime, any error of judgment could have irreversible effects on the already unstable country.

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.

The following email/information has been received from Paul Toland regarding pro bono legal assistance that may be available to U.S. parents to obtain access to their children in Japan using the provisions of the Hague Convention once Japan ratifies the Hague Convention on the Civil Aspects of International Child Abduction. Paul is the contact point for this and his email address is pptoland@yahoo.com.

If you wish to have your case listed, the following is the information that should be submitted:

Contact Information
Name:
Address:
Phone Number:
Email Address:

Child/Children information
Child name:
Child Sex: (Male or Female)
Child Birth Date:
Child Abduction Date:
Abductor:
Last known address:

The following is the email from Paul Toland:

Subject: Article 21 Hague Convention Access Application – Requesting your response

All,

Please forgive the length of this email, but it is important to be a thorough and clear as possible. With Japan nearing ratification of the Hague Convention, we have the opportunity to gain access to our children under Article 21 of the Hague, which reads:

“An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfillment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.
The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.”

I know this is not what everyone wants, we want our children returned, but my attorney, renowned Hague attorney Stephen Cullen, has told me that if done properly and en masse, simultaneous delivery of dozens or perhaps hundreds of Hague Access applications in the immediate aftermath of Hague Ratification by Japan would severely test Japan and put them on notice that we’re watching their compliance. Stephen is perhaps one the foremost Hague attorneys in the US (Baltimorean of the Year in 2004, American Bar Association Pro Bono Attorney of the Year 2003, Maryland Trial Attorney of the Year in 2008, etc.) having litigated over 200 Hague Abduction Cases, with well over 100 successful returns. He has VOLUNTEERED to submit Hague Applications for ANY AND ALL JAPAN ABDUCTION CASES PRO BONO.

The plan would be to hold an event in DC shortly after Japan ratifies the Hague, where we march en masse from his office on K Street in DC to the State Department to deliver the Hague Article 21 Access Applications. We would do this march in front of members of the press and garner as much publicity as we can. Additionally we would do a symbolic delivery of the Applications in front of the Japanese Embassy as well (although the actual applications would be delivered from our Central Authority, the State Department, to Japan’s Central Authority). First, though, Japan has to ratify the Hague and Stephen has to prepare the applications.

Questions and Answers:

1. Question: Who can submit an Article 21 Hague Application:
Answer: ANYONE who is a US Citizen and has a US Citizen or dual-national child in Japan that they do not currently have access to. This includes what have historically been referred to as both “Abduction” cases and “Access” cases.

2. Question: Will performing an Article 21 Hague Application affect my ongoing legal case in any way?
Answer: No, if you have Warrants out for the arrest of your former spouse, those warrants still stand. This is simply a request to have access to your child under Article 21 of the Hague.

3. Question: I am American, but I do not currently live in the United States, can I still submit an Article 21 Hague Application to see my child?
Answer: Yes.

4. Question: Will this process subject me to the Jurisdiction of the Japanese courts, and affect the US Court jurisdiction over my case?
Answer: It will not affect your US jurisdiction of your case, but the Japanese court system may be utilized under the Hague in facilitating the access to your child. The extent to which the Japanese court system will be used is really a matter of how the Hague implementing legislation is written in Japan.

5. Question: I am not a US Citizen. Can I participate?
Answer: Yes and no. You cannot file via Stephen Cullen with the US State Department. However, you can file an Article 21 Hague Access application through your country of citizenship, and I highly encourage you to do so to further test Japan’s system.

6. Question: What will this cost me?
Answer: Stephen, whose normal attorney fees are about $800 per hour, is doing this PRO BONO. There will probably only be small costs associated with copying, and filing fees.

So what’s the first step? Stephen has asked me to collect as many names as possible of as many parents who would be interested in filing Hague Article 21 Applications. We are hoping to get at least 50, and if we get 100 that would be a tremendous success. I will collect your information centrally for Stephen and then his office will be contacting you to begin the process. I am not sure if he will begin the process prior to Japan’s ratification of the Hague or after. I will let you know when I find out.

For now, though, please provide some basic information to me so I can collect it for Stephen. Your name, your current address, phone, email address, and the names and ages of your children. Stephen’s office will collect more information after the process begins, but for now, I’m simply trying to get a parent and child head count and contact information.

Please distribute this request as far and wide as you can among the community of US Citizen parents who have had their children taken from them to or within Japan. The more parents we get, the better!

Thank you. Paul Toland

http://japandailypress.com/supreme-court-fines-woman-after-denying-ex-husband-access-to-child-0326288

Supreme Court fines woman after denying ex-husband access to child

posted on APRIL 3, 2013 by ADAM WESTLAKE in NATIONAL

The Japanese Supreme Court ruled last week that a woman pay her ex-husband 50,000 yen (approx. $535) for each time that she denied him access to visit their daughter. The mother had agreed to regular meetings between the child and father in a family court settlement, and this marks the first time that Japan’s highest court has ordered penalties on a parent with custody for breaking their visitation agreements.

The Supreme Court’s decision was an upholding of a ruling made by the Sapporo High Court, and the measure of “indirect enforcement” is said to often be used in cases where a debtor is ordered to make cash payments to a creditor as a way of having a psychological impact on those failing to obey a court’s decision. Justice Ryuko Sakurai said in the ruling that a parent can be ordered to make payments when the date, frequency and length of a meeting, or transfer method of a child that were agreed upon are disregarded. Other courts have set precedence of punishing custodial parents for not meeting their agreements, but as this is the first time the Supreme Court has made a ruling, it is expected to set a far-reaching standard.

This decision seems like a significant contribution to the changes in parental rights in cases of divorce in Japan. The country almost always grants custody to the mother, and there is no recognition of dual-custody, often leaving the father with no rights to see their children. In the last decade, the number of court cases involving divorced, non-custodial parents demanding to see their children has tripled, less than 3,000 in 2001, to well over 8,000 in 2011. In addition, the Japanese government has finally committed to joining the Hague Convention on child abduction, an international treaty that requires taken children to be returned to the country of their original home in order to resolve custody in a failed international marriage. Up until now, Japan has been seen as a safe-haven for its nationals to bring their children back to without notifying their foreign spouses.