Happy New Year 2018

Happy New Year, son.  My thoughts were with you at 15:00 GMT yesterday when the year turned in Japan.  Every good wish for 2018.  I mailed you a New Year card, below along with receipt, a couple of days’ ago so it should be with you soon. New Year is not as big in the UK as Japan and the store did not have a New Year card as such; the best I could find was a card of a cat peering at a fish in a fish tank.

Also below is a photo of the family lunch in Hythe on 10 September last year to mark your Grandad’s 89th birthday, about which I posted last summer.  Also below is a photo taken just after Christmas on 27 December just gone showing Dad/Grandad, my brother and sister and I.  It is very rare that we meet up alone together and I cannot remember when we last did so but it must have been when I was a very young adult – I don’t think that there has been a photo like this of just the four of us since I was a teenager.  We were only able to catch a few hours together but it was very pleasant.

I saw the news a couple of days back that Japan proposes to change the age of majority from 20 to 18 from 2022 so that will cover you as you will turn 18 in 2026, which doesn’t feel all that far off now.  I hope that this reform will help in a small way to embolden you to contact your family in the UK that much sooner.  You are welcome to do so of course at any time as you are hugely missed here.  You will be standing on your own two feet before you know it and will be able to make decisions for yourself.  In the meantime, however, I wish you every happiness and success in year 2018.

 

 

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Japan’s Supreme Court hands down a road map for parental child abductions


Japan’s Supreme Court hands down a road map for parental child abductions
by Colin P.A. Jones

Issues | LAW OF THE LAND

Dec 31, 2017

 

 

In 2014, after years of diplomatic pressure and countless horror stories about parents losing all contact with children taken to or retained in Japan, the nation finally joined the Hague Convention on the Civil Aspects of International Child Abduction. This should have relegated to history Japan’s growing reputation as a “black hole” of abduction of children by one parent — usually the Japanese one —after the breakdown of a marriage or other relationship.
Less than four years later, in a sadly predictable ruling issued on Dec. 21, Japan’s Supreme Court confirmed abductions can continue. The difference seems to be that lower courts will pay lip service to the ideals of the convention by going through the motions, and various well-intentioned institutions now exist to help achieve the amicable resolutions that should ideally end such cases. But visitation with taken children will still be difficult or impossible, return orders will remain unenforceable and, at the end of it all, courts will be able to find it best for the children to stay in Japan.

 

The baroque procedural regime adopted by Japan to implement the convention was designed to give lower courts various ways to avoid returning children. Now that the top court has ratified such a result, we can probably expect to see more cases like this.
Children will be the principal victims of such abductions. However, I can’t help but feel sympathy for Japan’s Ministry of Foreign Affairs. It bore the brunt of foreign criticism before Japan joined the treaty and, acting as Central Authority under it since , has devoted significant resources to resolving cases and helping the parents and children involved in such cases. This judgment will probably now make its job that much harder.

Escape hatches do their job

The case on which the court ruled has already been widely reported in the Western press. It involved the four children of an American father and Japanese mother.
According to the Supreme Court’s judgment they were brought to Japan by the mother in July 2014 with a promise they would be returned to their home in the United States the following month. They stayed. The following year the father applied to a Japanese court for a return order under the Hague Convention.
In 2016, the Osaka High Court issued an order that the children should be returned. The court found that the older children (11 at the time they were brought to Japan) were found to not want to return, but returning just the younger ones (who were both 6) would have been bad for all of them.
The basic concept underlying the convention is that children in these situations should be returned — promptly — by courts where they have been taken to their jurisdiction of habitual residence, and decisions about their long-term best interests should be made by courts there. The convention provides a few exceptions where returns can be refused, specifically: (i) if the child “objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views” and (ii) “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.”
Having obtained a return order, the father then set about trying to enforce it. Here he encountered the unpleasant reality that Japanese family court orders involving children are generally unenforceable. No adults get arrested or even punished for noncooperation, meaning abducting parents (and the family members who often help them) can flaunt the law and the rulings of Japanese courts. This is relatively common knowledge within Japan, where even domestic divorces can see a child unilaterally taken by one parent and the other losing all contact for years. That a case like this would arise under the Hague Convention was always predictable; it was just a matter of when it would happen.
Whilst refusing to cooperate with the return order, the mother filed a motion to have the whole matter reconsidered based on changed circumstances. This was one of the escape hatches built into Japan’s implementing act — the ability of a losing party to seek a new trial (after an appeal!), even though the whole point of the process is to get kids back home as quickly as possible.
The Osaka High Court did rule expeditiously on this motion (impressive when one considers it can take years or even decades for a wrongly convicted criminal defendant to get a retrial based on new evidence) and — lo and behold — found it was no longer appropriate to return the child because the father lacked the wherewithal to support them. (That the father had been forced to pursue ruinously expensive cross-border litigation to remedy the abduction did not seem to matter.)
This was the other bolt-hole built into Japan’s implementing act: the ability of judges to consider the child-rearing capabilities of both parents in determining whether the exception in (ii) above might apply. In other words, the court did a custody evaluation about what would be in the best interests of the children, which is one of the basic things that is not supposed to happen in Hague Convention cases. The basic premise, again, is that custody determinations should be made by courts where the children have been habitually resident.
That this escape hatch would be used in a difficult case such as this was also predictable. Otherwise Japan’s courts would have suffered the ongoing bother and embarrassment of a demonstrably unenforceable return order hanging out in limbo in a high-profile case.

Top court decides on custody

It is this ruling that the five judges on the Supreme Court’s 1st Petty Bench upheld. Judgments of Japan’s Supreme Court are often terse, particularly when dealing with subjects like excessive detention, police misbehavior, constitutional violations and so forth. Part of the rationale may be that, except in rare cases, the top court only considers appeals as to matters of law and does not revisit lower court findings of fact, and the judgment just needs to contain conclusions about the applicable law.
When it comes to family cases, however, the court sometimes breaks from this staid mold and its judges presume to explain what is best for children they have never even met. In their December ruling the court declared in no uncertain terms that “the appellant (father) lacks the financial basis to appropriately care for the children, and cannot be expected to receive ongoing support in their care and support from his family.” It would thus be bad for the children to be returned to America.
That in the course of ruminating on the best interests of the children the judges did not find it worth mentioning that they had been denied all contact with their father during the entire process is simply indicative of how little importance the Supreme Court attaches to the parent-child relationship, at least when it is inconvenient to the result that best suits the court system.
At risk of sounding repetitive, who is best suited to care for the children is precisely the type of decision that the Hague Convention expects to be made in the home country. Moreover, Article 20 of the treaty clearly states that “a decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.” Perhaps the court just found this language inconvenient when for all intents and purposes it conclusively determined the merits of the custody issues in this particular case — where the children would grow up and who would raise them.
There you have it. Courts in other countries should now be on notice that, despite Japan joining the Convention and a diligent Central Authority providing assistance to parents of taken children, return orders issued by the nation’s courts remain unenforceable, contact can be safely denied, Japanese judges looking for ways to let children stay in Japan can simply find fault with the left-behind parent’s imagined parenting capabilities and higher courts will ratify that decision as being “in the best interests of the children.”
By demonstrating such a low threshold for refusing returns and condoning noncooperation with enforcement proceedings, the Supreme Court’s ruling seems likely to serve as a road map for further abductions to come.
Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone.

Source:  “Japan’s Supreme Court hands down a road map for parental child abductions”, The Japan Times, 31 December 2017

Top court reverses 2016 international child custody decision

National
Top court reverses 2016 international child custody decision
Kyodo

Dec 29, 2017

 

The Supreme Court has ruled in favor of a mother who sought to revoke a January 2016 decision to hand over her children to their U.S.-based father, saying he lacks the capacity to raise them. The original decision was based on an international treaty to help settle international child custody disputes.
The original Osaka High Court ruling also stated that returning to the United States would be beneficial for the children.

 

However, according to the Dec. 21 ruling by the Supreme Court’s First Petty Bench, the father lost their home, and his capacity to raise the children has “worsened to the point that it cannot be overlooked.”
The court said the father “does not have the financial capacity to properly take care” of the children, given his inability to provide a stable residence. This kind of arrangement will “not benefit” the children, according to the court.
Originally, the family lived in the United States until the mother returned July 2014 to Japan with the four children, aged 6 to 11. The two parents disagreed on whether to return to the United States, prompting the father in August 2015 to petition for their return to the U.S.
The original high court ruling was finalized January 2016. But in February the same year, the house in the United States was put up for auction, and the father started living at an acquaintance’s house. Additionally, the children refused to return to the United States.
Japan joined the 1980 Hague Convention on the Civil Aspects of International Child Abduction in April 2014. The Hague treaty sets out rules and procedures for promptly returning children under 16 taken or retained by one parent as a result of a failed marriage to their country of habitual residence, if requested by the other parent.
Before Japan joined the treaty, it had been accused of being a haven for international child abductions.
Domestic legislation relevant to the Hague pact stipulates that a decision can be changed if it is deemed that sticking to the original decision would be unreasonable based on a change in circumstances.
Bearing in mind this provision and a change in the father’s financial capacity to raise the children, the mother petitioned to have the 2016 ruling changed.

 

Source:  “Top court reverses 2016 international child custody decision”, The Japan Times, 29 December 2017

Happy Christmas 2017

Happy Christmas, son.  Today marks your 7th Christmas in Japan.  Here’s wishing you a very happy day.  I mailed some items (see photographs below) to you on 6 December, the Post Office’s last posting day for Japan.  According to the tracking, the package arrived, a bit on the early side of Christmas, on 12 December.  I will post another message for you around New Year time.  God bless you.

 

Christmas 2017 tracking

14 December 2017

Hello Hugo

It is my 40th birthday today.  I was aged 30 the day that you were born in late 2008.  I have tried to “involve” you in my day today:  the first thing that I did today was to once again visit the spot at Heathrow Airport where I last saw you.  After that I took the train to Paddington from where I walked to the nearby Regent’s Park.  This is one of my favourite places in London and I remember being taken there by my own parents when I was a similar age to you.  I have now come into work for a few hours but plan to leave early to visit the National Portrait Gallery, Westminster Cathedral and the theatre later today.  Below are some photographs that I took of the Park.