Justice Ministry panel looks to enforce custody transfers in absence of uncooperative parents

Justice Ministry panel looks to enforce custody transfers in absence of uncooperative parents

KYODO, JIJI

A government panel is considering making it easier for children to be handed over to parents who have secured custody even if the former spouse defies a court order to let them go, sources close to the matter said Tuesday.

The Justice Ministry advisory panel plans to allow the hand-over of children to parents who have won custody, even in the absence of the parent defying the court order, the sources said.

In September the panel said that, in principle, removal of children by court officials would be possible only if the parent currently living with the children is present at the time.

But the panel is now proposing that only the presence of the parent who won custody is required.

The panel reviewed an earlier report after critics said the parent who had lost custody may intentionally hide to prevent the hand-over of children, and that the absence of such parents has prevented transfer of custody in the past.

Japanese legislation implementing the Hague Convention on the Civil Aspects of International Child Abduction is expected to be revised as it currently requires the parent living with the children to be at the scene when children are handed over to the parent with legal custody.

“I hope to see an effective (legal revision) that will also give maximum consideration to the mental and physical well-being of children,” Justice Minister Yoko Kamikawa told a news conference Tuesday.

The convention, to which Japan acceded in 2014, set out rules and procedures to allow for the prompt return of children under 16 taken or retained by one parent to the country of habitual residence, if requested by the other parent.

There is currently no stipulation in Japan’s legal system regarding parents who do not abide by court orders to hand over children to their former spouse. Such disputes have been handled based on regulations regarding the seizure of assets.

According to the proposal in the interim report, divorced parents who defy a court order and refuse to let their children go would be fined until they yield, in order to encourage them to voluntarily abide by the court decision. After compiling a fresh outline that includes the latest review the panel is set to submit its proposal to the Justice Ministry, possibly in autumn.

Last month, the U.S. State Department listed Japan as one of the countries showing a pattern of noncompliance with the Hague treaty in its annual report on the issue.

It said that Japan has made “measurable progress” since 2014, but pointed out the lack of “effective means” to enforce court return orders.

Source:  “Justice Ministry panel looks to enforce custody transfer in absence of unco-operative parents”, The Japan Times, 26 June 2018 (see also Brian Prager’s comment below the article)

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Two abduction-related articles in today’s Japan Times

There were two parental child abduction-related articles published in today’s Japan Times.

 
The first was by Professor Colin Jones, who regularly writes about the subject. Writing about the James Cook case – which was addressed by him before. Here, he writes of Cook’s (what will be) futile attempt to impeach the Supreme Court justices who ultimately found against him. That such an attempt is made at all shows how set in their ways the Japanese judiciary is.

 
The second piece, though not on child abduction specifically does address the treatment of children post a divorce in Japan. According to the Japanese Bengoshi who wrote the piece, the views of a 15 year old and above child will take “paramount importance” in determining what will happen in terms of custody. If aged between 10 and 15 the views of the child are “supposed to be respected” but if the child is under 10 “the probability that the mother wins custody is over 80.” If these arbitrary demarcations based on age were entirely accurate, that would in itself be somewhat disconcerting but the reality is that in most cases the child will stay with the parent with physical custody, invariably the mother. That the article says nothing about contact/visitation for the non-resident parent and also ignores the reality, particularly prevalent in abduction cases (such cases of course occur within Japan as well), of parental alienation.

 
Overall, the content of both articles is unsurprising but say a lot about how the judiciary conducts itself in Japan.

Step forward for campaign to close legal ‘loophole’ on child abduction in Scotland | HeraldScotland

27th May 2018
Step forward for campaign to close legal ‘loophole’ on child abduction in Scotland
Peter Swindon @PeterSwindon
Senior reporter, Sunday Herald

CAMPAIGNERS against abduction of children by a parent have hailed a Scottish Government consultation on a change in the law as a “positive development”.
Scottish minsters are under pressure to close a “loophole” which means a parent can’t always be prosecuted if they take a child overseas from Scotland without the consent of the other parent.
If a child is taken overseas from England and Wales it is a criminal offence under the Child Abduction Act 1984 but the law only applies in Scotland if a court order preventing travel is already in place.

Lawyer Yousif Ahmed, from Glasgow, is leading a campaign to remove the requirement for a court order so that Scotland’s law on child abduction is brought into line with the rest of the UK.
A meeting between campaigners and Scottish Government officials was held this week after it was announced that the so-called loophole will be examined as part of a wider consultation on family law reform.
Ahmed said: “The current Scottish framework fails to protect children and parents in Scotland and far too many children and parents have been let down by a loophole that fails to protect them from this abuse.
“Scottish ministers need to take action to address this ongoing problem. In a joint effort, we have highlighted in great detail the various shortcomings and failures that exist in the Scottish framework and the changes that are needed.
“The Scottish Government has heard the voice of the campaign and has taken our message on board. We are very pleased that as a result of our campaign work, it has now issued a consultation on proposals to reform the law. This is a fantastic achievement within a short space of time.”
Scottish Government figures show the number of international child abduction cases have risen over the last 10 years, from two cases in 2007 to 20 cases in 2016.
The government consultation on the Children (Scotland) Act 1995 is “seeking views on how civil and criminal child abduction by parents can be further prevented”.

The consultation states there may be a need for a “minor change” to Section 2 of the 1995 Act which would mean a court order is no longer required for it to be an offence to remove a child from Scotland without appropriate consent.
Ahmed, who is director of legal services at Cannons Law Practice, added: “I would ask everyone to get behind this extremely positive development by encouraging the Scottish Government to implement the proposals set out in the consultation and effect the positive legislative change that is needed in Scotland.
“Together, we can make a difference and achieve a positive and lasting change that will help to protect children and parents all across the country from this abuse.”
A Scottish Government spokesman said: “There is already legislation in place making it an offence in Scotland for a person connected with a child under 16 to take or send the child out of the UK without the appropriate consent where a court order is in place awarding custody of the child to another person or prohibiting removal of the child from the UK.
“Depending on the circumstances of the case, someone suspected of child abduction may also be charged with the common law offences of abduction or plagium.
“The consultation on the Children (Scotland) Act 1995 seeks views on a range of issues, including whether to change the law in Scotland on parental child abduction and we welcome the constructive contribution from campaigners on this issue.”

 

Source:  “Step forward for campaign to close ‘legal loophole’ on child abduction in Scotland”,  The Sunday Herald, 27 May 2018

US State Department 2018 report on child abduction – Japan excerpt

Country Summary: The Hague Abduction Convention entered into force between the United States and Japan in 2014. Since then Japan has made measurable progress on international parental child abduction. The number of abductions to Japan reported to the Department has decreased since the Convention came into force for Japan. Despite this progress, in cases where taking parents refused to comply with court return orders, there were no effective means to enforce the order, resulting in a pattern of noncompliance. As a result of this failure, 22 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average these cases were unresolved for one year and 10 months. The Department continues to urge Japan to resolve the 21 pre-Convention abduction cases that remained open at the end of the year, all of which have been outstanding for many years.

 
Initial Inquiries: In 2017, the Department received three initial inquiries from parents regarding possible abductions to Japan where no completed applications were submitted to the Department.

 
Central Authority: The United States and the Japanese Central Authorities have a strong and productive relationship that facilitates the resolution of abduction cases under the Convention. The Japanese Central Authority has focused effectively on preventing abductions, expanding mediation between parents, and promoting voluntary returns. The average number of children reported abducted to Japan each year has decreased by 44 percent since 2014, when the Convention came into force in Japan.
Voluntary Resolution: The Convention states that central authorities “shall take all appropriate measures to secure the voluntary return of the child or to bring about an amicable resolution of the issues.” In 2017, four abduction cases were resolved through voluntary means.

 
Location: The competent authorities regularly took appropriate steps to locate children after a Convention application was filed. The average time to locate a child was 15 days.
Judicial Authorities: The judicial authorities of Japan routinely reached timely decisions in accordance with the Convention. Japanese courts routinely issued orders pursuant to the Convention for children’s return.

 
Enforcement: Unless the taking parent voluntarily complied with a return order under the Convention, judicial decisions in Convention cases in Japan were not enforced. There are two cases (accounting for 100 percent of the unresolved cases) that have been pending for more than 12 months where law enforcement has failed to enforce the return order. Japan’s inability to quickly and effectively enforce Hague return orders appears to stem from limitations in Japanese law including requirements that direct enforcement take place in the home and presence of the taking parent, that the child willingly leave the taking parent, and that the child face no risk of psychological harm. As a result, it is very difficult to achieve enforcement of Hague return orders. In addition, the enforcement process is excessively long. Left-behind parents who have obtained Hague return orders can spend more than a year in follow-on legal proceedings seeking an order to enforce the Hague order.

 
Access: In 2017, the U.S. Central Authority acted on a total of 37 open access cases under the Convention in Japan. Of these, three cases were opened in 2017. A total of 36 access cases have been filed with the Japanese Central Authority, including two of the three cases opened in 2017. By December 31, 2017, six cases (16 percent) have been resolved and five cases have been closed for other reasons. Of those resolved, one was as a result of a voluntary agreement between the parents. By December 31, 2017, 26 access cases remained open, including 23 that have been active for more than 12 months without achieving meaningful access. The total number of Convention access cases at the beginning of 2017 includes 14 pre-Convention abduction cases that later filed for access under the Convention. Of these, one resolved, four closed for other reasons, and nine remained open at the end of 2017. In addition to filing for Hague access, these LBPs continue to seek the return of their abducted children.

 
Pre-Convention Cases: At the end of 2017, 12 pre-Convention abduction cases remained open in Japan. In 2017, seven pre-Convention cases were resolved and one pre-Convention case was closed for other reasons. In these cases, the parents have chosen not to file for access under the Convention.

 
Department Recommendations: The Department will continue its engagement with relevant Japanese authorities to address the areas of concern highlighted in this report.

 

 

Read the full report here (section on Japan at pages 21 to 22)

 

 

See also:  “US cites Japan for non compliance with Hague treaty on cross border parental child abductions”, The Japan Times, 18 May 2018

Japan Times “in search of” column (13 May 2018)

There was a child abduction related piece in The Japan Times today; I set out below relevant extracts from it.  The full article can be read here.


 

How-tos | LIFELINES

The Japan Times

Readers reach out to lost friends and family in Japan
by Louise George Kittaka
Contributing Writer

May 13, 2018 

 

Here is another of our occasional “in search of” columns featuring people hoping for a blast from their pasts, along with an update on efforts to help children and parents in international abduction cases.

 

[…]

 

Next is a father looking for his daughter. Michael Spangler lost touch when his Japanese girlfriend — and the mother of his child — married someone else. His daughter was born on Dec. 16, 1996, christened Tina, and later renamed Mina. He notes that his former girlfriend chose to end contact at that time but assured him that she would support their daughter if, upon reaching adulthood, she wanted to get back in touch with her father. As Mina is now 21, Michael hopes this will be possible. “I am not trying to interfere in their lives in any way. I only would like to find a way to have some type of connection and relationship with my daughter,” he writes.

 

[…]

 

On parental child abduction

Also helping to connect loved ones is Kizuna Child-Parent Reunion (Kizuna CPR), a Japan-based NPO that has been mentioned before in Lifelines. Kizuna CPR advocates for international families torn apart through divorce or child abduction, with the aim of enabling children to have stable relationships with both parents under such circumstances. Representative John Gomez talked to Lifelines about the NPO’s latest news.
“We launched the G-7 Kidnapped to Japan Reunification Project with the objective of putting the parental child-abduction problem on the agenda of the G-7 Summit, to be held in Canada on June 8 and 9. Kizuna Child-Parent Reunion has entered into a working relationship with International Alliance Partners to achieve this objective. These partners are parents in member countries of the G-7 with abduction cases to Japan, and are from Canada, France, Germany, Italy, the U.K. and the U.S.”
In 2014 Japan formally joined the Hague Convention on the Civil Aspects of International Child Abduction, which states that children under 16 should be returned to their country of “habitual residence” if abducted across international borders by one parent. The treaty is not retroactive, however. According to Gomez, Japan is not complying with the Hague Convention and two other international treaties on children’s rights, the United Nations Convention on the Rights of Children (UNCRC) and the Vienna Convention.
“If applicable, these can be used as a legal premise in cases to petition for access to children if they were taken prior to when the Hague Convention took effect in Japan. In the Hague Convention, rights of access could be applied for in cases that occurred before the Hague took effect, if the child was living outside of Japan prior to being taken,” Gomez explains. “The UNCRC is applicable in all cases. The Vienna Convention should enable consular officials to access the children in Japan.”
For more information about Kizuna CPR, visit http://www.kizuna-cpr.org/g7-kidnapped-to-japan. For comments and questions, or if you have any information that might assist the readers searching for family and friends, please contact lifelines@japantimes.co.jp