ACCJ Journal article: Tokyo handles first cases under Hague Convention

FEB2015ACCJARTICLE

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

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

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

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

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

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

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

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

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

Jury still out

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

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

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

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

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

Parents still suffering

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

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

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

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

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

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

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

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

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

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

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

Japan no longer sanctions child abduction in mixed marriage cases

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.

RECOMMENDED: Think you know Japan? Take our quiz to find out.

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.”

CRC of Japan co-founders featured in Deutsche Welle article

http://www.dw.de/dads-doubt-tokyos-commitment-to-abduction-treaty/a-16647298

Society

Dads doubt Tokyo’s commitment to abduction treaty

Tokyo is inching closer to signing the Hague Convention on the Civil Aspects of International Child Abduction, but foreign parents who have not seen their children for years have little faith the treaty will help them.

In the last 18 years, Walter Benda has only managed to see his two daughters once. That was for a few moments on a street in a Japanese town in 1998 after a private investigator managed to track down the girls and their mother.

His Japanese wife disappeared from their home in Chiba Prefecture, just outside Tokyo, after seeing him off to work one morning and rebuffed all his efforts to make contact with them. And as soon as he did find them again, they vanished once more.

Benda’s case is far from unusual. Critics of the Japanese judicial system accuse it of abetting Japanese nationals who want to leave their foreign spouse abroad and prevent them from staying in touch as the children grow up. And as Japan is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, Japanese courts set the rules on access.

The situation is largely about foreigners living abroad with their Japanese partners who return to Japan, but the issue also affects foreign nationals who marry Japanese and opt to live in Japan. Unsurprisingly, foreign parents have been given short shrift in legal efforts to see their children in Japan. An estimated 20,000 children are born to mixed-nationality couples here every year.

Currently, Washington is dealing with 100 cases of US children being abducted to Japan, 30 cases involve Canadian citizens and British officials admit to dealing with around 10 cases.

Promises from Tokyo

The US is investigating nearly 50 cases of abductions to Japan

When Prime Minister Shinzo Abe met with US President Barack Obama during his recent trip to Washington, the issue came up. The Japanese leader promised that politicians in Tokyo would soon sign the Hague Convention into law, bringing the country into line with 89 other signatory states.

Of the Group of Eight nations, Japan is the only one not to have signed the agreement. But even if Tokyo does sign the pact, foreign parents do not believe that Japanese courts will be even-handed.

“I believe it is quite possible Japan will sign it this year, but I feel it will just be window dressing, as is the case with the United Nations Convention on the Rights of the Child that Japan ratified in its entirety in 1994,” said Benda, the joint founder of the Japan chapter of the US-based Children’s Rights Council (CRC). “That agreement provides for regular, direct contact between children and both parents, but Japan does not honor it.

“I’m not very optimistic. I believe Japan is doing this more for symbolic reasons to satisfy its foreign allies rather than out of sincere concern about children’s rights.”

Benda’s experience with Japan’s appalling track record on child abduction dates back to July 21, 1995.

A normal farewell

“I had no clue that this was going to happen,” he explained. “It was the first day of school vacation, so the children were still at home when I left for work in the morning.

“I remember hugging both my daughters at the front door of our house before I left. When I returned home that evening, I immediately sensed something was wrong when I noticed that the children’s bicycles, which were normally parked in front of the house, were gone, and their shoes, and their mother’s shoes, were all gone.

“As I walked into the house I noticed a lot of the furniture, paintings and appliances were gone as well,” he said. “There was a note from my wife, along with a business card for an attorney, on the dining room table. In the note, my wife asked me to forgive her for leaving me.”

Talking to Japanese friends, however, he felt confident that he would be seeing his children soon and that the system would handle the situation in a similar way as is done in the US.

He was quickly to come face-to-face with the rules of parental abduction in Japan. Even though he remained legally married and shared equal custody of the children, it took Benda three-and-a-half years to even find out where they were living as none of the Japanese authorities would help locate them or provide information about their health or school situations.

He approached the local police, the Tokyo Metropolitan Police, the local city office, the health and welfare ministry, schools and education officials, the US Embassy, INTERPOL and various other organizations set up to assist foreigners in Japan. None were willing or able to help and he was forced to approach authorities in the US to have his children registered as missing and have an international arrest warrant issued against his wife for kidnapping.

No visits with daughters

“I have pursued custody and visitation rights through the Japanese courts twice now, each time appealing my case all the way to the Japanese Supreme Court,” said Benda. “I have never been granted a single scheduled visit with my daughters.”

Foreign fathers are often powerless in finding their children

In the US, the Justice Department has indicted his former wife under the International Parental Kidnapping Act as the girls are US citizens being retained overseas. The Japanese government, however, refuses to recognize the charge and will not take any action on the extradition request.

“I feel very angry and misled by the Japanese legal system,” he explained. “The Japanese Constitution guarantees the husband and wife equal rights in family matters and the Japanese have signed international treaties which guarantee children regular direct access with both parents.

“The reality is, the Japanese courts thumb their noses at these legal obligations.”

At the root of the problem, CRC of Japan believes, is that Japanese judges do not have very strong enforcement authority in family law cases. That means that even if the abducting parent is ordered by the court to ensure the other biological parent has access to the child, the court is essentially powerless if that arrangement is not adhered to. In other jurisdictions, if a parent is ordered to allow visitation and refuses to do so, that person can be charged with contempt of court and be imprisoned.

Pressure on Japan

CRC believes it is only the cumulative effect of international publicity and increased public awareness that have led the US and other foreign governments to put pressure on Japan.

In many ways, CRC Japan co-founder Brian Thomas admits, he and Benda are relatively lucky as they have at least sufficient financial resources to contest the legal cases through the courts and devote time to supporting other parents in similar situations. The majority of international marriages in Japan are between Japanese men and foreign women from other Asian nations. When those relationships hit the rocks, the women have fewer resources to fight for their right to see their children.

Parental abduction not only affects international marriages. Because there is no equivalent organization to fight for the rights of parents, CRC of Japan has several cases on its books of Japanese couples seeking access to their children as well.

Thomas moved to Japan from South Wales in 1988, two years after meeting his wife Mikako. Their son, Graham Hajime, was born in January 1990, but Thomas has not been permitted to see him since April 1993. He carries his son’s photo with him at all times.

And he is not optimistic that Japan signing the agreement will bring about meaningful change for him or other parents in his predicament.

“I hope that Japan can change for the better, for the sake of its own people, and I would like to be optimistic,” he said. “But history does not lend itself to optimism when dealing with Japanese matters of this nature.”

DW.DE

ABC News to provide major coverage of Japanese child abduction issue

ABC conducted a group interview of over a dozen U.S. parents whose children have been abducted to Japan and will be covering this on their “World News” programs on Tuesday, February 15 and Wednesday, Feburary 16, and also on ABC Nightline on February 15.

A related video, photos, and other information is available at the following link:

http://abcnews.go.com/International/american-children-abducted-japan-desperate-fathers-contact-children/story?id=12919762

PRESS RELEASE–FOR IMMEDIATE RELEASE

Rally to Free Christopher Savoie, Washington, Oct. 3

Children’s Rights Council of Japan is organizing a Rally and Candlelight Vigil in Washington, D.C. on October 3, calling on Japan to free Christopher Savoie and reunite abducted American children with both sides of their families.  The Rally will be held in front of the Japanese Embassy, 2520 Massachusetts Avenue, starting at 2:00 PM, with a Candlelight Vigil in front of The White House starting at 7:00 PM.

Christopher Savoie was arrested and imprisoned in Japan after trying to recover his two American children, who were kidnapped to Japan in violation of U.S. law by his Japanese ex-wife.  Christopher’s wife, Amy Savoie, will speak at the Rally, as will other victims whose children are being held in Japan.

Scheduled Speakers:

Walter Benda, Co-founder, Children’s Rights Council of Japan and father of two American daughters who were abducted in Japan in 1995.

Commander Paul Toland, US Navy, sole surviving parent of a daughter, Erika, who was abducted in Japan in 2003.

Amy Savoie, wife of Christopher Savoie and stepmother of two children abducted to Japan this year.

Kay Kephart, a grandmother whose grandchildren are being held in Japan.

More speakers to be added later.

The public is invited to attend.

Please direct media inquiries to crcjapan@yahoo.com and check our website at http://www.crcjapan.com for updates and further details.  Phone inquiries:  276-637-0117.