Enforcement measures eyed to settle child custody battles

The Mainichi

Enforcement measures eyed to settle child custody battles

TOKYO (Kyodo) — An advisory panel to the Japanese Justice Ministry proposed Friday that measures be enforced on divorced parents who take custody of their children against a court order to pay fines.

If the parents continue to refuse to let the children go, court officials will be entitled to take away the children, the panel said in an interim report on the reform of the nation’s child custody system.

The proposal has been made at a time when critics are criticizing the inconsistency between the state’s handling of such disputes between domestic and international marriages as the latter were already subject to rules of the so-called Hague treaty.

Japan in 2014 acceded to the Hague Convention on the Civil Aspects of International Child Abduction, which sets out rules and procedures for the prompt return to the country of habitual residence of children under 16 taken or retained by one parent, if requested by the other parent.

The Justice Ministry plans to solicit public comments on the report later this month. After reporting the outcome to the panel, the ministry is expected to submit a bill to revise the civil execution law to the Diet in 2018 at the earliest.

There is currently no stipulation in Japan’s legal system regarding parents who do not abide by a court order to give away children to their former marital partners. Such disputes have been handled based on regulations regarding the seizure of assets.

According to the proposal in the interim report, divorced parents who refuse to give away their children in defiance of a court order will be fined until their surrender to encourage them to voluntarily abide by the court decision.

If the parents continue to ignore the court order for two weeks, court officials will be allowed to take away the children and put them in the hands of the other parents.

If divorced parents fail to pay expenses to raise children, the report also proposes enabling courts to make inquiries to financial institutions on information about such parents’ financial assets.

Source:  “Enforcement measures eyed to settle child custody battles”, The Mainichi, 9 September 2017 

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Japanese family law “incompatible” with Hague Convention

There was a telling article published in the International Academic Forum’s Journal of Asian Studies Summer 2017 issue.  The author, Takeshi Hamano, of the University of Kitakyushu, spells out why the ratification of the Hague Convention has had a limited impact – because domestic Japanese family law is “incompatible” with the principle of the Convention.

I set out, below, the abstract and, below that, a link to the article itself – it is not a subscription website:

Author: Takeshi Hamano, University of Kitakyushu, Japan
Email: ian.mcarthur@sydney.edu.au
Published: August 4, 2017
https://doi.org/10.22492/ijas.3.1.03

Citation: Hamano, T. (2017). The Aftermath of Japan’s Ratification of the Hague Convention on Child Abduction: An Investigation into the State Apparatus of the Modern Japanese Family. IAFOR Journal of Asian Studies, 3(1). https://doi.org/10.22492/ijas.3.1.03


Abstract

The aim of this paper is to discuss the ways in which a recent international dispute has evoked an inquiry about the family ideology of modern Japan. Initially, it explains a recent issue on Japan’s ratification to the Hague Convention on child abduction. In April 2014, the Japanese government finally ratified the Hague Convention on child abduction, an international Convention to resolve disputes on international parental child abduction. However, skepticism toward Japan still remains, because, in order to put the international Convention into practice, Japan has not proceed to radical family law reform at this stage. To recognize this incongruent situation, this paper explains that the present Japanese family law is incompatible with the principle of this international Convention. Although the Convention premises shared parenting in the grant of joint child custody even after divorce, Japanese family law keeps the solo-custody approach, which is necessarily preserved in order to maintain Japan’s unique family registration system: the koseki system. Arguing that the koseki system, registering all nationals by family unit, is an ideological state apparatus of Japan as a modern nation state since the nineteenth century, this paper concludes that recent international disputes regarding parental child abduction in Japan inquires about a radical question on national family norm of Japan.

Keywords

Japan, family, the Hague Convention on the Civil Aspects of International Child Abduction, child custody, koseki

Link to article:  http://iafor.org/archives/journals/iafor-journal-of-asian-studies/10.22492.ijas.3.1.03.pdf

Hiroshima landslide – 3 years on

The article that appeared below yesterday about the third anniversary of the Hiroshima landslide – I posted a series of posts about it in August 2014 (which still holds the record for the largest number of posts in any one month) – was a reminder that it has been almost 3 years since I received any real news about my son.  It is preposterous that this is so and that the UK government shows no tangible interest in the issue of ongoing and historical international parental child abduction in Japan.

Hiroshima remembers victims of deadly landslides on third anniversary of the disaster

KYODO

A memorial service was held Sunday in Hiroshima to commemorate the third anniversary of the landslides that claimed the lives of 77 people.

“I don’t want anyone else to become a victim or a person feeling like us,” said 77-year-old Takako Miyamoto, one of the speakers at the event. She lost her husband after torrential rain triggered landslides in residential areas close to mountains in the city early on Aug. 20, 2014.

“It is really painful and sad. Our lives were ruined after losing everything dear to us, homes destroyed,” said Miyamoto, who was seriously injured in the landslide.

Touching on recent natural disasters including the torrential rain in Kyushu last month, she said she “sincerely hopes that no one else dies in a disaster.”

Three years ago, about 400 houses were either washed away or damaged by the landslides that struck Hiroshima.

“Residents are providing mutual support and the work to protect each other has progressed,” Hiroshima Mayor Kazumi Matsui said at the ceremony. “We’d like to support these efforts.”

Jointly hosted by the Hiroshima municipal and prefectural governments, the event was held in Asakita Ward, one of the hardest-hit areas.

Families and residents visited the devastated sites early Sunday to offer flowers and pray for those who died. Some touched the names of victims listed on a monument, while others tearfully clasped hands.

Hina Sawamoto, a 16-year-old high school student in the city of Hiroshima, lost her grandmother after a mudslide smashed into her house that day. She sometimes recalls the mudslide when it rains heavily and becomes worried that disaster may strike again.

The teenager said she wants to give a helping hand to those affected by the downpours in Kyushu, just as she was helped by volunteers after the disaster in Hiroshima.

She went to Oita Prefecture last month with her father, Yasuhiro, 46, and helped a family whose house had been swept away by a mudslide. “I was supported by many people. So I wanted to show my gratitude,” she said.

Although she was helping out, Sawamoto said she did not really get to talk with the victims. “Sometimes people want to be left alone. I know how they were feeling.” At the time of the disaster, residents in the devastated area had not been informed of the landslide risk, as many of the sites were not designated within the warning zone in accordance with the law on prevention of landslide disasters.

Afterward, the state revised the law and obliged prefectural governments to swiftly make public the results of basic investigations of terrain and geological conditions. The revised law took effect in January 2015.

According to the Hiroshima Prefectural Government, emergency work since the disaster to make 57 locations more resistant to landslides was completed in May this year.

The prefecture is expected to designate around 50,000 locations as landslide warning zones, but only about 40 percent of the areas had been so designated as of Aug. 10.

Source:  “Hiroshima remembers victims of deadly landslides on third anniversary of disaster”, The Japan Times, 20 August 2017

New international family law convention proposed

New international family law convention proposed

Hague Convention
If created, the new international treaty would join the three existing Hague Conventions on family law matters – the 1980 Convention on the Civil Aspects of International Child Abduction; the 1996 Convention on Parental Responsibility and Protection of Children; and the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance.

Hague Conventions derive their name from the Dutch city of Den Haag (The Hague), where the first was signed as long ago as 1899. Since 1951 38 Conventions on different aspects of “private international law” have been created.

An expert’s group had been drawn together to explore issues surrounding the enforcement in participating countries of legal orders and agreements concerning children made in other participating states. Following their investigations they proposed the creation of the brand new Convention to facilitate this process and add value to the three earlier family law Hague Conventions.

A situation in which a family order made in one country is generally recognised and enforced in other nations was in the best interests of children they declared.

The three existing family law Conventions do not address longer term family arrangements – for example, child maintenance or contact, or other financial issues, including property. If created, the new Convention would provide an efficient and simple method for cross-border enforcement of such matters.

Stowe Family Law Web Team

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Source:  “New international family law convention proposed”, Stowe Family Law Blog, 16 July 2017

Most kidnapped children are taken by a parent. That doesn’t mean they’re safe

Most kidnapped children are taken by a parent. That doesn’t mean they’re safe

 

By Jane K. Stoever July 21
Jane K. Stoever is a clinical professor of law and director of the domestic violence clinic at University of California, Irvine School of Law.

When my client told me her abusive ex-boyfriend had shown up after a long absence, beaten her and kidnapped their children, I assumed the police would respond quickly and issue Amber alerts. But a D.C. police officer refused even to write a report, dismissing the complaint as a “private family matter” and opining, “What safer place for the children than with their dad?”
We were met with similar indifference from the child-abduction unit supervisor, who pondered, “Isn’t possession nine-tenths of the law?” (No, it’s not.)
The reaction of the judge in the family court’s domestic violence unit was equally alarming. She incorrectly questioned whether she had jurisdiction, now that the children were several states away. And when she learned that my client had declined her ex-boyfriend’s marriage proposal, and that he’d texted that if she wanted to see their children again she would agree to marry him, the judge said, “Aw, it sounds like he’s just heartbroken.”
Eventually, persuaded by my clinical law student’s recitation of the applicable law and by my client’s visible bruises, the judge entered a temporary protection order that awarded my client custody of the children. After several days on the road, the ex-boyfriend said he would return with the children if my client would not pursue criminal charges for abduction. She desperately wanted her children back home with her and readily agreed.

I was relieved — but also disheartened that the justice system seemed to care so little about the plight of these children who had been abducted by their abusive, estranged father.

(Asked by The Washington Post this past week about parental abductions, a D.C. police spokeswoman said that the department “treats each missing persons case with seriousness and utmost zeal. We use the press, social media and a variety of other avenues to locate missing children as quickly as possible.”)
On the other side of the country, when I began representing abuse survivors in California five years ago, I saw the same state refusal to respond to abductions committed by abusive parents. One client found our domestic violence law clinic after her abuser reported her to immigration authorities, fled with their infant and went to extreme lengths to hide. His actions violated multiple laws. Moreover, we had serious concerns about the baby’s safety — our client had been granted a domestic violence green card because of the life-threatening abuse she experienced from this man. Yet several police departments refused to take a police report on the kidnapping, even when presented with evidence of the man’s domestic violence convictions. I had to read aloud to a police chief the criminal-code section detailing how taking, withholding or concealing a child from someone who has a lawful right to the child is the definition of child abduction. Even with a police report, though, the district attorney’s office did not act.

The case haunted my students in the legal clinic, my co-teacher and me. “Have you found my baby yet?” our client asked every time we spoke with her. And so we continued to search for possible leads, hired private investigators, hung “missing child” posters throughout the region and engaged in a media campaign that, one year after the baby went missing, proved key to recovering her.
Our society fixates on “stranger danger.” Popular media portrays abductors as pedophiles, serial killers and other strangers who prey on children. Parental and societal fears are fueled by the well-known murders of Danielle van Dam, Adam Walsh, Polly Klaas, Samantha Runnion and Carlie Brucia, and the stories of Elizabeth Smart, Erica Pratt and Jaycee Dugard, who lived to tell of their kidnappings.
But contrary to the dominant narrative, nearly all child abductions are perpetrated by family members. Stranger abductions — certainly alarming and tragic — actually occur with “lightning-strike rarity,” as a report in the journal Criminal Justice Studies put it, in contrast to the more than 200,000 parental abductions committed each year that meet the criminal criteria and are not merely delayed visitations or misunderstandings.

That might seem reassuring, but it shouldn’t be. Abduction by a parent can pose significant risk to a child’s safety and well-being. And for the domestic violence survivor whose child is abducted, this is the ultimate form of abuse.
Parental abduction frequently is part of a larger dynamic of domestic violence. Most left-behind parents report that the abductor physically abused them, threatened their lives and threatened to kidnap the child before doing so. Particularly when the victimized parent seeks to end the relationship, abusive partners commit abduction as a way to exert control, fulfill a quest for revenge or hurt them. And it works. Left-behind victims report that the trauma of losing their children far exceeds any physical, sexual or mental abuse they experienced during the relationship.

Abusive abductors may also be motivated by a fear of losing custody or a desire to gain custody of a child. Because such scenarios are common, and parental abductions occur in families in discord, police often dismiss complaints as messy family situations, assume complainants are overreacting or think that parents are embellishing reports of parental abduction to further their own custody claims.

Domestic violence is also a motivating factor in a smaller number of abduction cases in which an abused parent seeks to safeguard a child from harm. Abuse survivors who flee with their children tend to do so when the courts and law enforcement have failed to provide needed protection.
As with stranger abduction, children kidnapped by their parents are often traumatized and harmed. Unsurprisingly, these children face greater physical danger when the abducting parent has a history of perpetrating domestic violence. A Justice Department study concluded that one-third of children abducted by a parent suffer serious sexual, physical or mental harm, with many more children experiencing other emotional and physical trauma. The abducting parent’s deception, which may involve adopting a fugitive lifestyle, creates its own set of problems. Children may be pulled out of school, denied medical attention, coached to lie and warned away from making friends. While some abducting parents return children on their own and some left-behind parents succeed in their self-initiated efforts, 20 percent of abducted children remain missing for more than a month, and some are never recovered.
These kidnappings can end tragically. In one prominent case, Simon Gonzales violated a restraining order and abducted his three daughters in Colorado in 1999. Their mother sought help from police seven times on the phone and twice in person in the hours that followed, but she was rebuffed with comments such as, “At least you know the children are with their father.” Gonzales went to a police station that night and opened fire. After a shootout, police found the bodies of the three girls inside his truck.
Despite the harms of parental abduction, and state and federal laws prohibiting parental kidnapping and custodial interference, these crimes are not typically viewed as requiring legal intervention. Police response and prosecution are rare.
The Justice Department reports that although an estimated 155,800 children are victims of “serious” parental abductions each year, only 30,500 police reports are officially registered, 9,200 cases are officially opened in prosecutors’ offices, an estimated 4,500 arrests for parental abduction are made, and 3,500 criminal complaints are filed. In a national survey of law enforcement offices, about half of the 17,000 responding offices said they always refuse to take a missing-child report for a parentally abducted child, instead viewing it as a private family issue or a matter for family court.
The failure to initiate investigations, take reports or obtain photographs is contrary to national guidelines recommending that police be immediately dispatched in response to all complaints of missing or abducted children. Police often instead misinform parents that the child has to be taken across state lines or be missing for a specified period of time before they can respond. Parental abductions most often occur during scheduled visitation with the non-custodial parent, so police instruct the left-behind parent to wait, presuming the issue will resolve itself. However, the first few hours are crucial for locating an abducted child, and any delay favors abductors.
The reluctance to intervene does not reflect legal gray areas. Although the 1932 Federal Kidnapping Act, which made abduction a federal offense, excluded parental abduction based on the presumption that parents always act out of concern for their children, numerous federal and state laws now address parental abduction. For instance, the 1990 National Child Search and Assistance Act prohibits law enforcement agencies from creating waiting periods before accepting a missing-child report, regardless of custody status. Congress went further with the International Parental Kidnapping Crime Act of 1993 and the Uniform Child Abduction Prevention Act of 2006. Current laws could be improved — especially at the state level, where some states require preexisting custody orders to act and others lack family violence defenses — but the failure to implement and enforce existing laws is the first hurdle.
So how can the failure of legal authorities to respond to parental abduction be explained? Although domestic violence is increasingly recognized as a serious crime, we still tend to be socialized to believe that danger lurks outside the home and that harm doesn’t often occur within a family. Violent crimes committed by strangers garner significantly more resources and attention, and are more likely to lead to arrests and prosecution, than identical crimes committed against family members or intimate partners.
At the same time, our society longs for parental engagement, especially by fathers. Judges tend to reward fathers who demonstrate interest in custody of their children — overlooking histories of domestic abuse.
Gendered and racialized intervention practices are also telling. The majority of parents who abduct their children, including abusive abductors, are white men . Yet women are more likely than men to be convicted and incarcerated for abduction-related offenses, even when they are fleeing to protect their children from family violence. Studies show that police and courts trivialize and distrust legal complaints from women but don’t apply the same skepticism to complaints from men.
And beyond the context of parental abduction, the state has shown itself to be more comfortable targeting, regulating and punitively intruding on families of color, especially poor ones, than it appears to be with white families. For example, poor parents of color are disproportionately incarcerated for not paying child support, which is pitched as a crime against the state. Low-income women of color who experience abuse are often charged with neglect for exposing their children to domestic violence or for living in conditions of poverty. Officials also increasingly arrest and prosecute abuse survivors who inflict defensive wounds, and they incarcerate victims who refuse to testify against their abusers.
Although state intervention is unwarranted and unwanted in some family matters, it is desperately needed to prevent and respond to abusive abductors.
Because histories of violence and kidnapping threats commonly precede parental abduction, family court judges could issue more restrictive visitation or custody orders to prevent kidnappings. Law enforcement, prosecutors and judges also need training on the many laws that facilitate abduction investigations, authorize protective court orders, and enforce and prosecute custodial interference or child abduction. And they need to be able to distinguish between the very different motives and situations of abusive abductors and survivor abductors. Exemptions or affirmative defenses for family violence victims also need to be available and used.
I woke up on Thursday to an email from a fellow West Coast lawyer who represents abuse survivors, seeking help recovering a child who was abducted by an abusive parent to the Midwest. The parent had fled their state with the child in violation of a domestic violence protection order, but, still, law enforcement officials refused to intervene because the child was with a parent.
These children, and the left-behind parents who desperately ask, “Have you found my baby yet?,” deserve the help of our justice system.

Twitter: @jane_stoever

Source:  “Most kidnapped children are taken by a parent.  That doesn’t mean they’re safe”, The Washington Post, 21 July 2017