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.

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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

Canadian Supreme Court decision – Office of the Children’s Lawyer v. Balev (and others)

The Supreme Court of Canada has now given judgment in the appeal that I posted about last November. The decision of the majority – it was a split court – is not an altogether welcome one in terms of the guidance that it has provided for deciding future cases.

The case concerned Canada and Germany.  The former couple concerned had two children.  They had, latterly, been living in Germany but were not doing well in school and the father agreed that the mother could take the children to Canada for the 2013-14 academic year on the basis that (subject to any decision on his part to extend the time that the children could spend in Canada) they would then return to Germany.  Anticipating rightly that the children would not be returned, the father issued proceedings under the Hague Convention.

The judge at first instance held that the children should be returned to Germany.  That decision was reversed on appeal to the Ontario Divisional Court which considered that the children were habitually resident in Canada.  The father appealed to the Ontario Court of Appeal which overturned the Divisional Court’s decision, finding that the children had to be returned to Germany.  Before the case reached the Supreme Court – the (now retired) Chief Justice of Canada remarked in her judgment how unacceptable the delay in the case being heard by the Supreme Court was given the issues it involved – the case had become academic.  However the Court still proceeded to determine it.

The sole issue was whether the children had been habitually resident, in Germany, at the time of the wrongful retention in Canada.  The only applicable “exception” to return under the terms of the Convention was objection on the part of the children.  Up until this decision, parental intention held sway:  the children’s return to Canada was “time-limited” so habitual residence did not switch from Germany to Canada.  However, the Court found that cases of this nature should now be decided on the basis of “a multi‑factored hybrid approach”.  Under this approach habitual residence can switch in the case of a time-limited visit abroad.  The effect of this is that a child can then be retained in the country that they were abducted to unless the deciding Court exercises discretion not to return them.  Central to that is the wishes and feelings of the child; if they object and are of a sufficient age and maturity to have their views taken on broad, that might well turn out to be determinative.

The decision is objectionable on two fronts.  First, where a parent in an international marriage agrees in good faith to a child living for a specified amount of time in their partner or former partner’s country (or indeed elsewhere), the child’s habitual residence, crucial to the determination of Hague cases, can switch.  That cannot be right as the move was agreed to be temporary and the Court is allowing a wrong-doing to benefit from the law.  The second concern is that because of this in some cases the wishes and feelings of the children will then become central to the final decision.  In Hague cases – and in family law cases generally – the is always a real risk of parental alienation, an appalling but all to real concept, in which the children are turned against the non-resident parent; as their wishes and feelings will be seen as central (particularly if they are older), that also sets a dangerous precedent.  Cases such as these to need to be resolved on a case-by-case basis; although the Court in this case stressed the importance of the individual circumstances, my fear is that this decision has set a most unfortunate precedent – one that may not be re-visited for many years.

The full decision can be read here.

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