Happy Easter 2018

Maundy Thursday 2018

Hugo

This is just to wish you a very happy Easter this weekend.  There are national holidays in the UK tomorrow and Monday so I will be off work until Tuesday.  I mailed you some items in the post yesterday (see below) so these should be with you by the middle of next week.  I hope that you are keeping well, are doing well at school and that you have a nice weekend.  Your family in the UK miss you a lot, as do I.

 

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Supreme Court custody decision – Japan

Supreme Court breaks new ground, ruling in favor of U.S.-based Japanese father in international custody battle

BY TOMOHIRO OSAKI

STAFF WRITER

The Supreme Court ruled on Thursday in favor of a U.S.-based Japanese father seeking to reunite with his teenage son, who was taken by his estranged wife to Japan in 2016, concluding that the wife’s dogged refusal to abide by an earlier court order mandating the minor’s repatriation amounts to her “illegally confining” him.

The ruling is believed to be the first by the Supreme Court on cases where return orders by courts have been refused. It is likely to send a strong message regarding domestic legislation that is often slammed as impotent on cross-border child abductions, despite Japan’s commitments under the Hague Convention, following mounting criticism that return orders issued by courts have been ignored.

The Supreme Court sent the case back to the Nagoya High Court.

This latest case involved a formerly U.S.-based Japanese couple whose marital relationship began to deteriorate in 2008. According to the ruling, the wife unilaterally took away one of her children, then aged 11, in January 2016 and brought him to Japan where the two have since lived together.

Upon a complaint by the husband, a Tokyo court issued in September the same year a “return order” for the child under the Hague Convention, but the wife didn’t comply. When a court-appointed officer intervened to recover the child the following year the wife “refused to unlock the door,” prompting the officer to enter her residence via a second-story window, the ruling said. The mother then put up a fierce fight to retain the child, who also articulated his wish to stay in Japan.

On Thursday the top court overturned a Nagoya High Court ruling that acknowledged the child’s desire to stay in Japan. The latest ruling judged the minor was “in a difficult position to make a multifaceted, objective judgment about whether to remain under control of his mother,” citing his “heavy reliance” on her and the “undue psychological influence” she was likely exerting upon him in his life in Japan. The apparent lack of his free will, the ruling said, meant the mother’s attempt to keep the child equated to detention.

“It’s very common for taking parents to alienate the child against their left-behind parents,” said John Gomez, chairman of nongovernmental organization Kizuna Child-Parent Reunion, noting the lower court ruling ignored “the undue psychological influence, the alienation, by the taking parent against the other parent.”

“Previously, when the children give their opinion, ‘Oh I don’t want to return,’ the enforcement process would stop … But this ruling recognizes we shouldn’t only listen to the words themselves, but we should consider the context that they’ve been influenced,” Gomez continued. “It’s a very critical development.”

Japan belatedly signed the Hague Convention in January 2014, signaling a step toward overcoming its longtime notoriety as a “safe haven” for parents who abduct their children from other countries. But questions have long remained over the effectiveness of its domestic legislation tied to the treaty.

Since the pact entered into force in April the same year, there have been six cases where return orders resulted in bailiffs being dispatched to achieve the handover of children, but none were ultimately successful, according to the Foreign Ministry.

Under the law, a fine is first imposed on parents who refuse to comply with a court order to repatriate their children.

Should the parents still refuse to relinquish their control of the children, court-appointed enforcement officers will be dispatched to confront them. The bailiffs, who are tasked with convincing the parents with custody to hand over the children, are authorized to enter and search their premises as well as physically restrain them. But the law also stipulates that the officers are prohibited from exerting any physical force on the children themselves, compromising their ability to ensure the children’s return.

“So if it’s a case where a child is willing to leave but a parent is refusing to let go of the child, an enforcement officer can resort to physical force to restrain the parent. But if it’s the child who is protesting by clinging on to the parent, for example, the officer cannot do the same,” a Foreign Ministry official said.

In its 2017 Annual Report on International Parental Child Abduction, the U.S. government expressed concern over Japan’s “ability to quickly and consistently enforce return orders.”

While courts in Japan have ordered returns under the Convention, the Japanese authorities “were not regularly able to enforce these orders,” the report said, citing one particular case that remained pending for more than 12 months in which law enforcement failed to enforce the return order.

Source:  “Supreme Court breaks new ground, ruling in favor of US-based Japanese father in international custody battle”, The Japan Times, 15 March 2018 

Courts fail to return disputed children

Courts fail to return disputed children

The Yomuri Shimbun

 

All domestic legal procedures to compel divorced parents who are refusing to obey finalized court orders to return their children to the children’s country of habitual residence, in keeping with an international treaty, have so far failed, according to the Foreign Ministry.

The Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) stipulates how to handle the cases of children who have been taken by their father or mother to a foreign state due to divorce or other reasons.

In domestic trials involving the convention, some parents have not obeyed even finalized orders to return such children to the state where they habitually resided. According to the Foreign Ministry, six legal procedures have been conducted to separate children from such parents, but all have failed to bring about the return of the children.

This has led the effectiveness of the Hague Convention to be questioned, and some experts are calling for improvements to the relevant systems.

The Hague Convention is an international rule under which, if a parent takes his or her children to his or her home country without the permission of the other parent, the parent must in principle return the children to the state where the children have their habitual residence.

Parents residing in foreign countries file a suit with family and other courts demanding the return of their children to their countries. The courts then decide whether to accept such demands through trials or other procedures.

If the other parent refuses to return their children in defiance of the court decision, implementation by proxy (see below) of the children’s return will be carried out, following the implementation of fines.

The Hague Convention went into effect in April 2014. According to the Foreign Ministry, from then until January this year, there have been 23 cases in which courts have ordered, through a trial, the return of children to states where they have their habitual residence.

Of these cases, implementation by proxy was conducted in six cases involving 14 children. However, the parents would not agree and refused to hand over their children, holding them tightly in their arms or using other means. As a result, none of the children were returned in these six cases.

Under the Japanese law for implementation of the convention, it is impossible to forcibly separate children from parents through implementation by proxy.

A lawyer for a male U.S. national who had filed such a suit under the Hague Convention pointed out the weak effectiveness of the Japanese implementation law, with the U.S. system — in which parents who do not obey court decisions can be detained — in mind.

Shinichiro Hayakawa, a professor of international private law at the University of Tokyo, said: “The current situation in which parents are allowed to refuse to return their children is problematic. It’s necessary to consider improving the system to enhance the effectiveness of the treaty while paying attention to the mental and physical condition of children.”

Decision could be overturned

On Monday, the first petty bench of the Supreme Court held a hearing for a case filed by a father living in the United States who is demanding the return of his 13-year-old son. The boy’s mother lives in Japan and refused to obey an order to return the son to the United States and accept implementation by proxy.

The case was closed the same day, after hearing from both sides. A ruling will be handed down on March 15, and may be overturned by the Nagoya High Court’s Kanazawa branch that refused the father’s demand.

At the hearing, the father’s side claimed that the mother’s act ignored the purpose of the convention. The mother’s side claimed that their son wants to live in Japan and so he should not be returned to the United States even though a return order was issued under the treaty.

The parents in this case are both Japanese nationals. They divorced in the United States, and the mother took their son to Japan in 2016. The father filed a suit demanding the return of the son under the implementation law.

The Tokyo High Court’s order to return him was finalized. However, when court enforcement officers arrived at the home of the mother and son, the mother wrapped herself and her son in a futon and refused to cooperate. Therefore, the boy could not be returned.

Implementation by proxy

If a person does not obey court orders or other directives, court enforcement officers and other people visit the person to implement the relevant orders in a compulsory manner. Under the Japanese implementation law for the Hague Convention, such officers and parents demanding their children’s return visit the relevant children and ask the other parent living with the children to return them. Court enforcement officers are allowed to unlock and search homes, and to attempt to persuade the other parent. However, they are not allowed to forcibly separate parents and children who refuse to accept the implementation.

Source:  “Courts fail to return disputed children”, The Japan News, 6 March 2018