Children’s Rights Council of Japan and the case of Walter Benda, co-founder of CRC of Japan, are both discussed in this Christian Science Monitor article.

http://www.csmonitor.com/World/Asia-Pacific/2013/0522/Japan-no-longer-sanctions-child-abduction-in-mixed-marriage-cases

Japan no longer sanctions child abduction in mixed-marriage cases
Tokyo lawmakers unanimously approve Hague convention to settle child custody in broken international marriages. But Japanese domestic laws and legal loopholes still need to change, say scholars.

By Justin McCurry, Correspondent / May 22, 2013

TOKYO
Walter Benda had no inkling of what was to happen after he and his Japanese wife and their two small daughters moved from Minnesota to Tokyo in 1992.

Three years later, Mr. Benda returned home from his job at a trading company one evening to find his wife and children gone. For the next three-and-a half-years he had no idea of their whereabouts. He did not know it then, but his wife had taken their daughters, then aged 6 and 4, effectively ending their 13-year-marriage and Benda’s relationship with his children.

Benda is one of hundreds of foreign spouses of Japanese citizens who — after a marriage breaks down — are denied all access to their children.

But now after years of pressure from “left-behind” parents, human rights activists, and several governments, Japan’s parliament on Wednesday unanimously approved a bill paving the way to join the 1980 Hague convention on international child abductions. That brings Japan in line with 89 other signatories. With the unanimous agreement, Japan is expected to become a signatory by the end of March 2014.

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Under the treaty, children under 16 who are taken away by one parent after a failed marriage must be returned to the country in which they normally live, if action is requested by the other parent. It also protects the access rights of both parents.

“I have never had a scheduled face-to-face meeting with my daughters since they were abducted and have not been able to communicate with them by phone or online,” Benda told the Monitor. “I have mailed them hundreds of letters, cards, and gifts over the years, but have never received a personal reply.”

During his search for his family, Benda received no help from the Japanese police and authorities. He took his case all the way to the Japanese Supreme Court, without success. Unable to find a new sponsor for his visa, he was forced to return empty-handed to the US, where a federal grand jury indicted his wife, in absentia, on charges of international parental abduction.

“Even though US law enforcement authorities have sought the return of my ex-wife to face the international parental kidnapping charge in the US, the Japanese police authorities refuse to cooperate because Japan does not consider parental kidnapping a crime covered under the extradition treaty it has with the US,” he said.

But it may soon.

Good news, but loopholes remain
Legal experts welcomed Wednesday’s decision, but said the treaty would have little effect unless it is accompanied by changes in Japan’s domestic law. Courts in Japan routinely favor the Japanese parent – usually the mother – in custody cases involving international marriages.

“I am concerned that Japan won’t implement the convention at face value,” says Takao Tanase, a law professor at Chuo University in Tokyo. Mr. Tanase points to numerous loopholes in Japanese family law that could be cited to prevent the return of children to their original country of residence, including the suspicion – without any burden of proof – that the child could be exposed to harm or that the mother’s welfare could be affected.

“Japanese law and the convention contradict each other, and this can be used as an excuse not to return the child,” he said. “The tradition of awarding sole custody was introduced 60 years ago, but Japanese society has changed dramatically since then.”

Yuichi Mayama, an upper house politician who has pushed for the legal change, was more optimistic. “This is a meaningful development,” he said. “I’m delighted that Japan is finally catching up with the rest of the world.”

But he added: “The tradition in Japan is to award sole custody, and that’s supported by the law. Unless we change that we won’t be able to use the convention properly. We take a very traditional view of the family in Japan, and changing that is going to take time.”

Japan’s about-turn
The number of foreign parents who are denied access to their children in Japan has increased along with a rise in the number of international marriages to around 40,000, according to Mr. Mayama. Inevitably, the trend has resulted in more divorces: Almost 18,000 Japanese and international couples divorced in 2011, according to government statistics.

The US, which is pursuing at least 100 recognized abduction cases involving its nationals, has worked alongside Canada and the UK in pressuring Japan, the only nonsignatory among the G8 nations, to fall into line. In February prime minister Shinzo Abe told President Obama that Japan was moving toward ratification during their summit in Washington.

Tokyo previously refused to sign the treaty, citing the need to protect Japanese mothers from abusive foreign husbands. Japan’s resistance earned it a reputation as a haven for child abductors, and in 2010 prompted the US House of Representatives to pass a nonbinding resolution condemning the retention of children in Japan “in violation of their human rights and United States and international law.”

The momentum for change grew in 2009 when Christopher Savoie, a US citizen, was arrested in Japan after trying to take back his children as they walked to school. Although Mr. Savoie had been granted full custody by a US court, his ex-wife took their children from their home in Tennessee back to her native Japan.

Savoie’s case and others have been taken up by the Children’s Rights Council Japan [www.crcjapan.com], a nonprofit organization launched in 1996 to offer support and resources to affected parents. The council has submitted a proposal to the Japan’s justice ministry and the US State Department calling for a humanitarian access program that would grant left-behind parents regular and meaningful contact with their children.

In 1998, a private investigator located Benda’s daughters, who are now in their 20s. He has seen them only twice since they were taken and for only brief periods on the street. “But they have always resisted my efforts to communicate and I have been unable to speak with them,” he said.

He agrees with skeptics that Japan’s belated about-turn will do little to help him and countless other foreign parents. “While it does reflect the fact that the Japanese government is finally recognizing that there is a problem, I am doubtful it will have any immediate, noticeable effect on cases such as mine,” he said.

“International pressure must continue until all loving parents who are separated from their children in Japan are able to have direct and meaningful access to them.”

http://www.yomiuri.co.jp/adv/chuo/dy/opinion/20120611.htm

 

Hague Convention Ratification and Post-Divorce Parent-Child Law

Takao Tanase
Professor, Chuo Law School, Chuo University
Area of Specialization: Sociology of Law

Read in Japanese

At present, ratification of the Hague Convention has been approved by the Cabinet and Japanese laws are being revised in order to implement this ratification. However, if we look at the domestic laws submitted by the government in order to execute the Convention, changes have been made with current Japanese public opinion and family court practices in mind, and it is questionable whether the intent of the Hague Convention has been incorporated.

1. The Framework of the Hague Convention

(1) Principle of return

The Hague Convention was entered into by the signatory countries in order to provide international protection to children from the damaging effects of child abduction. It aims to prevent abduction or, if abduction has occurred, to quickly return the child to its original home to eliminate any harmful consequences. This is the principle of summary return that forms the basic framework of the Convention. Here summary includes two meanings, quick, in the sense of instant action, and brief, in the sense of dispensing with time-consuming procedures and taking decisions quickly.

The need for speed is connected not only to the damage suffered by children in being abducted and remaining apart from the other parent but also to the powerlessness of children and their total dependence on adults, which is a feature of custodial cases.

Children are powerless and consequently tend to adapt to the environment of their abduction and show loyalty to the abducting parent who is now taking care of them. This is why there are endless attempts to gain sole custody by abducting a child and severing its relationship with the other parent, and is sometimes called abduction victory. Preventing this by returning the child quickly and irrespective of the loyalty shown by the child is the main point of the Hague Convention.

(2) Principle of requirement

To achieve this speedy return, the Hague Convention takes the stance of ordering the automatic return of a child if it can just be indisputably confirmed that the child was taken overseas without the consent of the other parent who has legal custody (including joint custody during marriage), or in other words, that the child was illegally abducted.

Even if the abducting parent pleads that the child wants to live with him or her and does not wish to return to the original home, this is not taken into consideration at all when weighing the pros and cons of the child’s return. Similarly, no attention is paid to pleas from a parent that one thing and another happened during the marriage, that the child would be happier living with him or her, or that the other parent cannot take proper care of the child. Allowing such pleas to be interfered in disputes over actual custody would inevitably make trials more drawn out and prevent a speedy return.

This is the other meaning of summary as in prompt decision-making.

(3) Serious risk

There are some cases in which children are mistreated and returning them would clearly put them at risk. This is given in the Convention as an exceptional reason for refusing to return a child, although there is also a risk of compromising the principle of return if the wrong action is taken.

Accusations of physical or mental abuse of children and physical or verbal spousal abuse are made between spouses most of the time in failing marriages as they contest decisions on culpability for the divorce, custody, and visitation and contact rights.

Parents therefore have to try not to be tripped up otherwise the trial can drag on, during which time the child comes to depend increasingly on the abducting parent who is taking care of him/her instead of the other parent who cannot meet the child, otherwise, not only returning of the child will be prevented, but the relationship with the parent can become severed. Because of this danger, the Convention seeks to limit exceptional cases of denying return due to a serious risk of physical or psychological damage to a child.

2 Implications for Japanese Law

(1) Toleration of abduction by Japanese law

The Hague Convention is against international child abduction and is not directly connected to abduction within Japan. So even if the Convention is ratified now, it does not necessarily mean that domestic law will change right away. However, the harmful consequences of abduction are the same even if it occurs within Japan. In fact the overwhelming majority of divorces in this country still follow a pattern of separation, in which either parent takes the child without warning in order to live together in the grandparents’ home, followed by a request for divorce.

In Japanese court practices, moving away with a child in a process leading to divorce is quietly condoned and not called abduction. In the words of judicial precedents, they left home with their children with the intention of keeping custody, and it is inevitably as they were unable to leave home without their children.

However, this way of thinking in judicial precedents is very far from the global consensus.

(2) Harmful effects of abduction

Children experience extreme trauma if they are suddenly removed for no apparent reason from a parent who dotes on them. The loss of a fundamental sense of trust can even scar them for the rest of their lives.

Abduction naturally provokes anger in abandoned parents, and fear of this anger and trepidation about returning children makes abducting parents even less likely to keep in contact and reveal their whereabouts. Of course many of them refuse visitation and cut themselves off from the other parent.

Later, even if mediation or a trial is held, the two parents cannot meet face to face to calmly discuss the post-divorce custody of their child as long as there is a background of this negative chain resulting from the abduction. All you can do through the mediation commissioner or judge acting as intermediary is work out an agreement on visitation and contact rather than discussing the current situation of the abduction, that is to say, rather than seeking agreement on parental rights and divorce.

However, if the person who has the abducted child close by keeps insisting on his or her demands, the future parent-child relationships will be significantly distorted.

(3) Equal joint custody

The post-divorce parent-child law that the world sees ideal would be one that allowed children to maintain continuous and direct contact with both parents. Parents split up, but children who are loved and raised by both parents will no longer lose one of them in the event of a divorce.

The Hague Convention stipulates that jurisdiction shall be in the child’s habitual residence and that the child shall be returned to that original country of residence even if the abducting parent starts a lawsuit in his or her own country. This is because the key to achieving equal post-divorce joint custody is for the parents to talk on an equal footing before separation and work out a post-divorce arrangement.

Of course the ideas and framework of the Hague Convention should also apply to divorces in Japan, and ratification of the Hague Convention along with domestic legislative reforms should be conducted quickly.

 

Takao Tanase

Professor, Chuo Law School, Chuo University
Area of Specialization: Sociology of Law
Graduated from the Faculty of Law, University of Tokyo in 1967. He was an assistant professor and then professor at Kyoto University before taking up his current position of professor at Chuo Law School, Chuo University. He is a lawyer belonging to the Tokyo Bar Association. He passed the National Bar Examination while he was an undergraduate student. After graduation he worked as a research associate and assistant professor on the Civil Code. Since then he has specialized in the sociology of law and conducted institutional research into legal proceedings, the justice system, lawyers, and alternative dispute resolution, legal theory research covering legal awareness, comparative legal culture, and modern jurisprudence, and interdisciplinary analysis of legal interpretation theory aimed at the Constitution, tort law, contracts, family law, and so on.
He has also taught at several American law schools including Harvard University. Besides research and education, he is currently utilizing his accumulated research in the conducting of defense activities.

Promotion of joint custody and parent-child contact after divorce

Being sponsored by Oyako Net

Contents

1. Voice from divorced children [Don’t take my mom (dad) from me]
2. Parent –child contact after divorce between Maiko (fashion model) and her ex-husband
3. Panel Discussion
*Akira Aoki: Assistant Professor of Taisho University, Clinical Psychotherapist
*Hiromi Ikeuchi: Divorce and Marriage Counselor, commentator, writer,
*Noriko Odagiri: Professor of Tokyo International University, a doctor of psychology, Clinical Psychotherapist
*Hajime Kawamura: Assistant Professor of Chuo University, The representative of Oyako Net
*Takao Tanase: Professor of Chuo graduate of law, Attorney
*Maiko; fashion model, actress, she is doing parent-child contact after divorce
*Yoriko Madoka: Former Upper House Member, Former Vice President of Democratic Party, writer, commentator, the Representative of Hand –in Hand
*Hakubun Shimomura: Lower House Member. He has been spearheading a nonpartisan study group on this issue for lawmakers

Our Mission
*No abduction
*Obligation of parent-child contact after divorce (child support and visitation)
*Worldwide standard of visitation
Symposium
Place Chuo University on Korakuen campass/Gogokan 5F 5534
Korakuen station 5minutes by walking [Tokyo Metro Marunouchi Line&Nanboku Line]
Kasuga station 7 minutes by walking [ Toei Oedo Line & Mita Line]
Time from 10AM to 4PM

Street Demonstration No charge. Bring your banner, your kid’s picture, etc
Please wear greenish yellow colour T-shirst
Place Rekisen Park [ in front of Korakuen Station]
Time start from 4:30 [ we can meet 4PM]

Contact: Oyako Net http://oyakonet.org…