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

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

Judge writes personal letter to teen after High Court battle

BBC

Judge writes personal letter to teen after High Court battleAn envelopeImage copyright

A judge has written a personal letter to a 14-year-old boy explaining why he has rejected his request to move with his father to Scandinavia.

Mr Justice Jackson said he felt the teenager had brought the case to the High Court “as a way of showing your dad how much you love him”.

He told the boy he was “doing well in life” and did not believe that the move abroad would work.

He said: “I am confident that it is the right order for you in the long run.”

Mr Justice Jackson, who is based in the Family Division of the High Court in London, wrote the letter to the teenager which laid down his ruling after a hearing in July.

Sam, not his real name, had applied for permission to live with his father in a Scandinavian country, which his mother and step-father opposed.

The application was later taken over by his dad.

‘Duty by your dad’

In the letter, the judge told the boy he believed “that your feelings are that you love everyone in your family very much, just as they love you”.

However, he noted that Sam’s parents had “very different personalities” and the fact they found it hard to agree was “stressful for you”.

In the letter, the judge said he found Sam’s dad to be someone who was “troubled” and had a “lot of influence over you”.

“All fathers influence their sons, but your father goes a lot further than that. I’m quite clear that if he was happy with the present arrangements, you probably would be too. Because he isn’t, you aren’t.”

He questioned whether the idea for the proceedings came from Sam or his dad and said he believed the teenager had “brought the proceedings mainly as a way of showing your dad how much you love him”.

‘Lost sight’

He told the teenager: “Also, I may be wrong, but when you gave your evidence I didn’t get the feeling that you actually see your future in Scandinavia at all.

“Instead, what I saw was you doing your duty by your dad while trying not to be too unfair to your mum. But you still felt you had to boost your dad wherever you could.

“That’s how subtle and not-so-subtle pressure works. So I respect your views, but I don’t take them at face value because I think they are significantly formed by your loyalty to your father.”

The judge said Sam’s dad had a “manipulative side” and has “in some ways lost sight of what was best” for his son.

He told the boy he had no confidence that a move to Scandinavia would work and hoped his dad would decide to stay in England “for your sake”.

‘Justice was done’

The judge said the evidence showed Sam was doing well in life in England and that he “should make the most of the many opportunities that life here has to offer you”.

He went on: “If, when you finish your A-levels, you want to move to Scandinavia, you will be 18 and an adult – it will be up to you.”

Mr Justice Jackson dismissed his dad’s application to take Sam to live in Scandinavia and for Sam to apply for citizenship there.

He ruled that Sam would have contact with his dad on alternate weekends and any arrangement after he moved to Scandinavia alone would have to be agreed between both parents.

In the letter, he added: “Whatever each of your parents might think about it, I hope they have the dignity not to impose their views on you, so that you can work things out for yourself.”

The judge finished by saying he and Sam’s dad had enjoyed finding out they loved the film My Cousin Vinny – but for different reasons.

“He mentioned it as an example of a miscarriage of justice, while I remember it for the best courtroom scenes in any film, and the fact that justice was done in the end.”

Source:  “Judge writes personal letter to teen after High Court battle”, BBC News, 27 July 2017

When open minds fight closed courts in Japan

Open justice: Lawrence Repeta challenged court restrictions on note-taking and established a precedent studied by Japanese law students today.

| COLIN P.A. JONES
Issues | LAW OF THE LAND
When open minds fight closed courts in Japan
by Colin P.A. Jones
Special To The Japan Times

 

Jul 16, 2017

 

On Nov. 28, 2016, the Nagoya High Court overturned the acquittal of Hiroto Fujii, mayor of the Gifu city of Minokamo, sentencing him to 18 months imprisonment with labor, suspended for three years. Elected in 2013 at the age of 28, he remains Japan’s youngest mayor.
Fujii ran as an independent, defeating an candidate backed by the Liberal Democratic Party who was twice his age. He joined the LDP shortly after winning, but they expelled him the same day he was arrested for allegedly taking bribes from a businessman in connection with the installation of a school water system. It should be disheartening — but not surprising — that the party which rules the country apparently equates being arrested with being guilty.

 

The principal evidence against Fujii was testimony from the businessman who allegedly bribed him. Conveniently for prosecutors, he had already been arrested and convicted for the bribery and an unrelated fraud, a crime that literally involves lying to people. Finding the witness lacking in credibility and his account of sneaking cash to Fujii implausible, the Nagoya District Court acquitted the young mayor.
On appeal by prosecutors, the high court managed to decide that the convicted fraudster was more credible than either the mayor or the witness whose testimony supported his innocence. Not only that, the esteemed high court judges supposedly made this evaluation based solely on the record of the lower court proceedings. They did hear testimony from the fraudster, but this turned out to have been tainted (and thus unusable) because he had inexplicably received a copy of the district court’s decision. This meant he and prosecutors had months to iron out discrepancies before testifying again to the high court, which, supposedly unaffected by this testimony, nonetheless found him credible based just on the record of the lower court proceedings. The high court never bothered to hear testimony from the mayor and his witness before essentially deciding both were lying.
The citizens of Minokamo apparently have a different view; Fujii was re-elected mayor in May. He ran unopposed, so popular despite his conviction that apparently no other parties thought it worth standing opposition candidates. Now on appeal before the Supreme Court, his case offers a cautionary tale for young people who challenge Japan’s wrinkly-faced establishment. It is also a sad reminder of how low one should set expectations of the nation’s criminal justice system. This is not just because of the result at the high court, but because the process started with a judge rubber-stamping a democratically elected sitting mayor’s arrest and prolonged detention, the latter on the farcical grounds that he was a flight risk. In just a few days an astounding 40 percent of Minokamo voters signed a petition calling for him to be released on bail.
Just as with all trials, Fujii’s was about competing narratives — his and the prosecutors’. Judges are supposed to balance the evidence and decide which is true. Yet apart from the testimony and other evidence submitted in the courtroom, at a higher level there is also a separate narrative playing out about whether trials themselves are being conducted fairly. Authoritarian institutions and marketing executives both appreciate that controlling narratives such as these is critical.
Judicial efforts to control the narrative played out in a shocking fashion in Fujii’s case. By law, the judgment of a court in a criminal case must be read to the defendant in open court, though it may take several days from being requested for a formal written judgment to be delivered to the defendant and his lawyers. In high-profile cases, however, courts have a practice of issuing a summary of the judgment to the media so they can report on it immediately.
In Fujii’s case, accredited media were given a 60-page “summary” of the high court’s decision the day it was rendered. At the same time, the same court refused to give Fujii’s counsel the same summary — that was for the media only. The defendant and his lawyers were supposed to wait until the official judgment was ready. This left them (and the government of Minokamo) to field questions from journalists who were better equipped with information about the judgment than they were. Control of information is a source of power — both to criticize and prevent criticism. Japanese courts — like all government institutions — know this very well.
Which brings me to why we should all be sorry to see Lawrence Repeta leaving Japan.

 

Larry is a friend of mine and was, until recently, a law professor at Meiji University. Had you been sitting in the public seats at the Nagoya High Court when it reversed Fujii’s acquittal, you could have pulled out a memo pad and — like Fujii’s lawyers — frantically tried to take notes as the judgment was read out. If you had done so, you would owe a debt of gratitude to Larry Repeta.
When I first observed a Japanese criminal trial, courthouses had signs on the walls saying “Taking notes prohibited.” This didn’t apply to everyone, though: Journalists accredited to the court’s “press club” could do so, but other observers could not. Press clubs are an omnipresent narrative control device in Japan; journos who write anything too critical of the institution can have their accreditation revoked, losing access to precious information. Members of the general public are not subject to this sort of control.
Larry first came to Japan in the early 1980s as a young lawyer and researcher. He encountered the ban on note-taking when trying to observe the trial of a bubble-era stock promoter for tax fraud. Repeated requests to the presiding judge for permission were rejected without explanation. Aided by the Japan Civil Liberties Union, he brought suit on the grounds that the prohibition on note-taking violated the Japanese Constitution’s guarantee of open courts, freedom of expression and equal protection. To a young American-trained lawyer, it seemed so obvious.
As so often seems to be the case in Japanese constitutional litigation, Larry won by losing, with all but one of the Supreme Court’s 15 judges acknowledging that “note-taking by spectators in the courtroom is worth respecting and should not be hindered without due reasons,” although such behavior was nonetheless subject to “restrict(ions) or prohibit(ions) if it interferes even slightly with the administration of the fair and smooth trial proceedings in the courtroom.”
Declining to find any clear constitutional violation (and, in my view, fudging on equal protection by simply declaring it reasonable to give journalists special privileges), the court rejected his appeal while at the same time declaring that permitting note-taking should be the rule rather than the exception. This was driven home when the Supreme Court’s General Secretariat issued a directive to courts throughout the country to permit note-taking by spectators. That the court’s administrators are able to issue edicts to judges about how to conduct trials is one of the lesser-known but vaguely disturbing aspects of Japan’s judicial system.
Nonetheless, Larry’s case wrought change, though not through law but through narrative, by establishing a high-profile negative story about closed courts — Larry embarrassed the judiciary into submission. In this respect it probably helped that he was a conspicuous Westerner, though it would be nice if more Japanese people had been — still are — embarrassed that it took a foreigner to care enough to fight for this right.
Despite the technical result, Larry’s case was regarded as a great victory. It is one of the basic precedents studied by Japanese law students. Thanks to his efforts, research on trial practice and citizen monitoring of judicial behavior is easier, and an entire new genre of nonfiction exists — books based on watching trials, and more recently court-watching bloggers. Larry is rightfully a folk hero among progressives, civil libertarians and others who care about informational justice, a field he has devoted himself to since becoming an academic. He has also published countless articles on Japanese law (including a book chapter for which I was co-author).

 

Retired from his teaching position in Japan, Larry returns to Seattle, where he graduated from law school and once practiced as a lawyer. Before his departure we caught up over beer in Kyoto. Asked to reflect on what had changed in the 35 years since he first started asking questions about Japan’s criminal justice system, his response was: “The saiban’in (lay judge) system has been introduced and there have been some other changes, but the fundamental rules have not changed, and they are the rules of an authoritarian system where the presumption of innocence is denied.”
The defendant in the trial where he had tried to take notes was ultimately acquitted of the principal charge yet ended up being detained for over two years during the course of a trial that lasted four. Prolonged deprivations of freedom regardless of guilt or innocence remain a foundation of the criminal justice system.
We discussed the case of Okinawan anti-base activist Hiroji Yamashiro, recently released on bail after five months’ pre-trial detention for relatively minor charges. I asked about right-wing criticism about Yamashiro’s activities being too unruly and aggressive. Larry’s response was: “Without civil disobedience in America, where would African-Americans be today?” This may seem very American, but all too often in Japan the expectation — unspoken requirement — that people be polite and obedient can be the opening for all sorts of rights-infringement scenarios, whether involving government use of land or questioning by police.
In any case, at Yamashiro’s trial people will be able to watch, take notes and debate their own evaluations of the evidence against him. For that, thank you again, Larry Repeta.
Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone. Send your comments and story ideas to community@japantimes.co.jp.

Source:  “When open minds fight closed courts in Japan”, Colin Jones in The Japan Times, 16 July 2017