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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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

US Senate Foreign Relations Committee resolution on international parental child abduction – 19 April 2018

[Congressional Record Volume 164, Number 64 (Thursday, April 19, 2018)]
[Page S2330]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

SUPPORTING THE GOALS AND IDEALS OF “INTERNATIONAL PARENTAL CHILD
ABDUCTION MONTH”

Mr. McCONNELL. Mr. President, I ask unanimous consent that the
Foreign Relations Committee be discharged from further consideration of
and the Senate now proceed to the consideration of S. Res. 431.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report the resolution by title.
The senior assistant legislative clerk read as follows:

A resolution (S. Res. 431) supporting the goals and ideals
of “International Parental Child Abduction Month” and
expressing the sense of the Senate that Congress should raise
awareness of the harm caused by international parental child
abduction.

There being no objection, the Senate proceeded to consider the
resolution.
Mr. McCONNELL. I ask unanimous consent that the resolution be agreed
to, the preamble be agreed to, and the motions to reconsider be
considered made and laid upon the table.
The PRESIDING OFFICER. Without objection, it is so ordered.
The resolution (S. Res. 431) was agreed to.
The preamble was agreed to.
(The resolution, with its preamble, is printed in the Record of March
12, 2018, under “Submitted Resolutions.”)

____________________

Source:  US Congress, Congressional Record, vol 164, no 64, page S2330, 19 April 2018

See also:  “Lawmakers consider issue of international child kidnappings”, Voice of America News, 26 April 2018

Lawmaker: U.S. needs to pressure Japan to comply with international child abduction laws (USA Today)

Lawmaker: U.S. needs to pressure Japan to comply with international child abduction laws

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Japan remains a haven for parental child abductions and a U.S. lawmaker Wednesday urged the Trump administration to do more to pressure the country to fulfill its obligations under international law.

Rep. Chris Smith, R-N.J., said during congressional testimony that between 300 and 400 children of international marriages have been abducted from the U.S. to Japan since 1994, and that more than 35 are still awaiting reunification with their American parents.

“Every day these children are separated from their U.S. parent, the damage compounds,” Smith said before a Congressional subcommittee on global human rights. “We must do better. We must not leave any child behind.”

Under international pressure, in 2014 Japan signed The Hague Convention on International Child Abduction. The treaty requires the government to set up a process to allow foreign parents to appeal for visitation or return of their children. But Japan has been slack in administering the convention, according to Smith.

 “How many of these children have come home four years later?” asked Smith. “How many even have access to their left behind parent now?  Almost zero.”

James Cook, a Minnesota medical device specialist trying to gain custody of his four minor children from his estranged Japanese wife, also testified before Congress.

In July 2014, his Japanese wife Hitomi Arimitsu took their children to Japan to visit her family and refused to return. Cook submitted an application for return under the Hague treaty and the case has made its way through both the Japanese and American court system, but Cook has still not been able to see his children.

A Minnesota court ordered the return of Cook’s children in 2017, but the ruling wasn’t carried out in Japan.

A key issue is that Japan does not have a way of enforcing its Hague commitments. It requires the abducting parent to voluntarily turn the children over and doesn’t allow the use of force in extracting the children. There have been numerous cases of parents simply refusing to comply with the Hague rulings.

Cook’s wife petitioned a Japanese court against the ruling to return the children and it was overturned, a decision which Japan’s Supreme Court upheld in December 2017.

“[My wife] has achieved the perfect consequence-free abduction with the aid of Japan’s systemic non-compliance and [the US Department of State’s] inaction,” Cook said in his testimony.

“After over 2.5 years in this process, I have nothing,” he said. “This process has cost me everything.”

Attention to the issue within Japan has been growing in recent weeks. Last month, all EU Ambassadors to Japan signed an official letter of diplomatic protest to pressure Japan to follow international law and enforce decisions which give an international parent custody or visitation rights.

Also in March, Japan’s Supreme Court ruled that a Japanese mother who is refusing to return her child to their father in the United States is “illegally restraining” the child under the Hague Convention.

It was the first such ruling by a Japanese court.

The court ruling and international pressure are a cause for optimism, according to John Gomez, an American who is chairman of the Kizuna Child-Parent Reunion group in Japan.

Gomez said that barriers remain, including an underlying “continuity principle” in Japanese courts means that the abducted child stays with the abducting parent.

“Until the ‘continuity principle’ by which judges in Japan issue rulings is actually discarded and kidnapped children are returned, we must keep pushing to the utmost for the children to be returned to their loving parents,” said Gomez.

Rep. Smith said in his testimony that the State Department needs to apply more pressure on Japan and other countries that have refused to cooperate in returning abducted children. A 2014 law that Smith sponsored, the Goldman Act, requires the State Department to develop an agreement with Japan about children that had been abducted and to hold Japan accountable.

However, Smith said that no action has been taken against Japan for past or current cases, and the State Department hasn’t even listed Japan as “non-compliant” in its annual report on the Hague convention.

Source:  “Lawmaker:  US needs to pressure Japan to comply with international child abduction laws”, USA Today, 11 April 2018 

Japan’s Supreme Court orders a child be sent home in a Hague parental abduction case. Maybe.

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Japan’s Supreme Court orders a child be sent home in a Hague parental abduction case. Maybe.

BY COLIN P.A. JONES

On March 15, Japan’s Supreme Court issued an important decision in a case arising under the Hague Convention on child abduction. Except it wasn’t about the convention, but about habeas corpus. Most press accounts have characterized the ruling as ordering that a child brought to Japan by his mother be returned to the United States, but it’s a bit more complicated.

A pitfall of comparative law is the ease with which familiar-sounding terminology can mislead. “Habeas corpus” is a prime example.

Latin for “produce the body,” habeas corpus is a centuries-old judicial procedure that in the Anglo-American system formed the bedrock of human rights law before the concept of human rights existed. A person subjected to arbitrary, unlawful detention could petition a court to issue a writ of habeas corpus. If the writ was issued, the detainer had to bring the detainee to court and explain the grounds for detention. If the detention was found to be unlawful, the detainee was immediately set free.

In England, habeas corpus led to a number of famous court decisions, such as the 1670 judgment establishing that jurors cannot be punished for their verdict, or the one in a 1772 that said nobody on English soil could be a slave. In the United States, habeas corpus was one of the few provisions about human rights contained in the U.S. Constitution before the Bill of Rights was added. In 2008 it was used to challenge the prolonged detentions without trial of terrorist suspects by the U.S. military at Guantanamo Bay.

Whittling down habeas corpus

Japan also has habeas corpus. Its Habeas Corpus Act was passed in 1948, specifically to give life to the ideals of the freshly minted Japanese Constitution by providing rapid and easy judicial relief for unlawful deprivations of liberty. Depressingly, the legislative history of the act reveals complaints about the old system — police using pretexts to detain suspects for long periods of time, coerced confessions, judges not protecting people’s liberty and so forth — that are similar to those made about the Japanese criminal justice system today.

The Supreme Court immediately used its power to create procedural rules to neuter habeas corpus. One rule it made required courts to reject petitions if there were “any other adequate means whereby relief may be obtained,” unless “it is evident that relief cannot be obtained within reasonable time.” With this, “rapid and easy” relief were excised from the law.

At the time, Japan’s entire code of criminal procedure was also revised to make it consistent with the numerous new constitutional guarantees of personal liberty and procedural justice. So perhaps the court’s thinking was that the procedural protections of the code would make habeas corpus unnecessary in most cases.

Yet seven decades later, the former head of school operator Moritomo Gakuen, Yasunori Kagoike, and his wife have been detained incommunicado for eight months without being put on trial. Ostensibly charged with fraudulently receiving public subsidies, their judicial renditioning is believed by some to be a way to prevent him from disclosing any embarrassing information about dealings with Prime Minister Shinzo Abe and his wife. By now, Japanese judges would have approved his prolonged detention multiple times. The Kagoikes’ treatment is not unusual, but habeas corpus is noticeably absent from discussions about him or any of the numerous famous so-called enzaicases — those where suspects were convicted and imprisoned for crimes based on questionable evidence or coerced confessions.

So, it is technically correct to say Japan has habeas corpus. It is also correct to describe the text of the law as providing prompt judicial remedies for unlawful detentions. In fact, habeas corpus offers a wonderful example of how you can state two factually accurate things about the Japanese legal system and still completely mislead your audience.

Old remedy gets second life

The Supreme Court also changed the law through a rule requiring detentions to be “conspicuously unlawful” in order to be eligible for habeas corpus relief. This was significant: “Minor” abuses by police or procedural violations by prosecutors or other judges would not be subjected to scrutiny through a habeas corpus hearing, because the petitions would be rejected for lack of conspicuousness.

It also meant that in the rare case that a petition was granted, the hearing held as a result would be meaningless. Why? Because by granting the petition, the court had already decided the detention was conspicuously unlawful — no bothersome arguing of facts and law in a courtroom for us, please!

The Supreme Court rules created numerous escape hatches for judges to allow even serious deprivations of freedom to continue. Under the rules, a court can grant a remedy other than immediate freedom — for a conspicuously unlawfuldetention! Another rule says that a petition cannot be brought over the objection of a detainee’s freely expressed objections.

Habeas corpus never became the tool for protecting the Japanese people from the state as originally intended. Instead, for several decades it took on an odd second life as an occasional player in custody battles, becoming the means by which estranged parents sought to recover detained children. Courts used habeas corpus proceedings to decide which parent was “better” and should thus raise the children while their divorce was sorted out.

In a 1993 ruling, however, the Supreme Court decided that even in this narrow context habeas corpus was being overused, and henceforth most disputes of this type should be resolved through the less adversarial proceedings of Japan’s family courts, whose specialized personnel had more suitable expertise. This may have had some logic, but if left parents of abducted children with no real remedies, since family court orders involving children — whether about visitation or transferring them from one parent to another — generally have limited enforceability. Habeas corpus had the advantage that failing to bring the detainee (i.e., the child) to court as ordered subjected the detaining person (parent) to the possibility of criminal penalties.

Since 1993, habeas corpus has served as a remedy that might be available after all others at family court have been exhausted. It certainly has not been a “rapid and easy” remedy, since the “conspicuously unlawful” threshold in the Supreme Court was satisfied only after a recalcitrant parent had steadfastly and repeatedly refused to comply with previous court orders. And an order to bring the child to the court meant that whatever hearing the court was supposed to hold was meaningless, since the fact that it was being held meant the result was a foregone conclusion.

‘Conspicuously unlawful’ case

Last month’s Supreme Court ruling concerned a dispute between a Japanese mother and father living in the U.S. Their marriage failing, the mother unilaterally brought the child back to Japan in January 2016. In July of that year, the father sought a return order from the Tokyo Family Court, which was granted in September.

The mother refused to comply, so civil enforcement under Japan’s Hague Convention implementation act was attempted in May 2017. This involved court enforcement officers going to the mother’s residence and seeking to take custody of the child.

The mother continued her resistance, and the enforcement officer had to forcibly enter through the second-floor window and … tried to convince her and the child to cooperate. The mother obstinately clung to the child under a blanket. The enforcement officer gave up and the effort was deemed unsuccessful. This is as far as civil enforcement will get you in a child custody case in Japan.

Finally we get to habeas corpus: A petition to bring the child to court was filed with the Kanazawa Branch of the Nagoya High Court. The court appeared to have done all the things Japanese courts did before the nation joined the Hague Convention — finding conveniently that the child was happy in Japan despite having been born in and spent the first decade of his life in the U.S., and that he didn’t like his dad. Since the child was freely expressing his objections to the petition and given his age and the circumstances, his “detention” by Mom wasn’t deemed to be conspicuously unlawful. Petition denied.

To its credit, not only did the Supreme Court find the lower court in error, it even acknowledged the possibility that children unilaterally deprived of contact with one parent might express views unduly influenced by the other, abducting parent. It questioned whether the child was freely expressing his will, and further noted that in international cases such as these, children face the added burdens of dealing with different cultures and languages and, if they are dual nationals, possibly ultimately a choice in nationality. The court also made a clear ruling that absent special circumstances, failure to comply with a return order under the Hague Convention should be considered “conspicuously unlawful” for the purposes of granting habeas corpus relief.

All good stuff, but the end result was to remand the case back to the lower court so that it could procure the child’s presence in the courtroom and consider the matter further. Given that 18 months has passed since the child’s return was ordered, you have to wonder if that court appearance will actually happen.

Moreover, given that as far back as 2003 the Supreme Court upheld the conviction for international kidnapping of a foreign father trying to remove his child from Japan, it seems odd that it has taken the court so long to conclude that abductions going the other way might be “conspicuously unlawful.”

Habeas corpus could have been used to remedy child abductions to Japan long before the nation signed the Hague Convention. The real problem has always been the judiciary’s lack of willingness to take action. Perhaps this decision is a harbinger of long-overdue change.

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 orders a child be sent home in a Hague parental abduction case.  Maybe”, Colin P A Jones, The Japan Times, 1 April 2018