Japan Times: Japan to beef up law to enable handover of children to parents with custody when the other resists

NATIONAL

Japan to beef up law to enable handover of children to parents with custody when the other resists

KYODO

The Cabinet on Tuesday approved a bill revising the enforcement of civil law to enable the handover of a child to a parent who is awarded custody, even if the other parent refuses to abide by a court order to transfer guardianship.

Currently, the law has no clear stipulation on such handovers, leaving court officials to rely on a clause related to asset seizure to enforce child custody orders. The current system has drawn criticism due to the fact it treats children as property.

Legislation implementing the Hague Convention on the Civil Aspects of International Child Abduction, an international treaty providing a framework allowing the return of a child internationally abducted by a parent, will similarly be revised.

At present, legislation requires a parent living with a child to be present when the child is handed over to the other parent, but the proposed revision will allow a transfer without both parents being there.

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

The bill to modify the Civil Execution Law also includes revisions to allow courts to obtain debtors’ financial information and bar registered crime syndicate members from acquiring foreclosed real estate properties in public auctions.

The amendments are aimed at helping authorities seize money and properties from parents who fail to meet their court-ordered child support obligations and from people who do not pay compensation to crime victims.

The revised execution law will make it easier for courts to require financial and public institutions to provide information on debtors, including data related to their savings and places of employment.

Japan maintains a system of sole custody and, in a large majority of cases, when a dispute reaches court mothers are awarded custody after divorce. It is not unusual for children in Japan to stop seeing their fathers after their parents break up.

Source:  “Japan to beef up law to enable handover of children to parents with custody when the other resists”, The Japan Times, 19 February 2019 

South China Morning Post article

IS JAPAN A HAVEN FOR PARENTS WHO KIDNAP THEIR OWN CHILDREN?

Foreign parents who had children stolen by a spouse say nothing has changed because court orders to reunite families are not enforced

 

BY JULIAN RYALL

 / UPDATED ON 

Walter Benda has only seen his two daughters once in the past 23 years. His wife disappeared from their home in Chiba, east of Tokyo, in July 1995 after he had gone to work one morning, utterly unprepared for the disappearance of his family.

After learning that his wife had disappeared with their children, he received no help from Japanese authorities to find his daughters, despite the US government issuing an international arrest warrant against his wife for kidnapping.

The one time he saw his daughters since was a fleeting glance after a private detective had tracked them down.

There was a glimmer of hope in April 2014 after Tokyo agreed to sign the Hague Convention on the Civil Aspects of International Child Abductions – after years of pressure from foreign governments trying to solve hundreds of similar abductions by Japanese nationals – but now Benda says he is no closer to finding his children.

Foreign parents who had children stolen by a spouse say nothing has changed because court orders to reunite abducted children are not enforced in Japan. Even though the law is on their side, the parents emphasise, they are still unable to be reunited with their children.

“Since the Hague treaty was introduced, we have not seen a very significant improvement in children who have been abducted by a Japanese parent being reunited with their other parent,” Benda told This Week in Asia. “The only positive improvement that I have noted is that there seems to be a decline in the overall number of international abductions to Japan, so implementation of the convention does seem to have had something of a deterrent effect on the frequency of international child abductions to Japan.”

In 2017, there were nine abductions involving 13 children from the United States, of which five cases were resolved. But a quick look at the website of the US-based Children’s Rights Council – of which Benda is a founding member – shows more than a dozen outstanding cases, some of which go back more than a decade.

Benda’s assessment is echoed by the US state department’s annual report on international child abduction. Released in May, it identifies the main problem in Japan being “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 non-compliance.”

Legislators approve the Hague Convention after unanimous vote in Tokyo. Photo: AFP

The report concludes that Japan is one of the worst countries in the world for complying with the Hague agreement, a finding that Benda says is “definitely justified”.

“I do not believe there is a sincere commitment on the part of the Japanese government to strongly intervene in these cases,” he said. “And I am particularly concerned that there has been virtually no progress made in providing access, let alone reunification, for parents who merely want access to their children through the Hague process, or through other official means.”

Japanese law makes it difficult for children who have been taken by a parent to be reunited with the other parent. It requires police and court officials to visit the home of the abducting parent, the child must willingly leave the taking parent and the child must not be at risk of psychological harm. The drawbacks to these conditions are clear – particularly if a child has been effectively brainwashed to choose the abducting parent.

There are also long delays in the Japanese legal system that make enforcement more difficult, Benda points out, adding that the state department report makes clear, “unless the taking parent voluntarily complied with a return order under the Convention, judicial decisions in Convention cases in Japan were not enforced”.

Justice minister Yoko Kamikawa says Japan will overhaul its law regarding the Hague Convention on child abduction. Photo: AFP

Yoko Kamikawa, the justice minister, said late last month that the ministry would begin to overhaul laws that implement the Hague Convention, including allowing for the return of a child when the parent who abducted the child is not present – although Benda says he still has deep reservations over whether authorities tasked with intervening in such cases will side with a foreign parent.

Brian Thomas, who was the joint founder of the Japan branch of Children’s Rights Council and last saw his son, Hajime, in April 1993, agreed that greater enforcement of the law was needed.

“It is encouraging that Japanese courts are now siding with foreign parents who have had their children abducted, although that breakthrough is completely negated by the courts failing to insist on the abducting parent abiding by these rulings,” he said.

Thomas said abducting parents often hid behind the law’s requirement that a child must be shielded from psychological or physical harm.

Japan’s courts have been accused of preventing foreign parents from seeing their children. Photo: AFP

“They are aware that is a loophole in the law. The courts and these abducting parents are treating the children like chattel rather than living, breathing people who deserve to be loved by both parents, no matter what,” he said.

Benda said he advocated a carrot-and-stick approach to existing cases, with outstanding international arrest warrants rescinded after the abducting parent has agreed to honour international access orders. For parents who still refuse to comply, then they need to understand from the Japanese authorities that they face extradition orders to face kidnapping charges overseas.

“If the Japanese government shows it is serious about enforcing these international orders, I believe it will send a powerful message to resolve current cases as well as prevent future cases,” Benda said. 

Source:  “Is Japan a haven for parents who kidnap their own children?”, South China Morning Post, 15 July 2018

Nagoya High Court orders mom to return son to dad in U.S.

Nagoya High Court orders mom to return son to dad in U.S., despite boy’s claim ‘he wants to stay in Japan’

KYODO

The Nagoya High Court ordered a woman on Tuesday to return her son to his father in the United States, saying her failure to comply with an international convention on child abductions is illegal.

The court ruled in favor of the father in a dispute between parents, who are both Japanese, over the custody of their U.S.-born son, who was brought to Japan by his mother without the father’s consent in 2016.

Presiding Judge Hisashi Toda of the high court said that although the son “claims he wants to stay in Japan, he has been living in the country being largely dependent on his mother, who wields unjust psychological influence on him.”

The mother had been ordered by the Tokyo Family Court to return the son to the United States based on the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

But she ignored the order, prompting the father to file a habeas corpus appeal with the high court’s Kanazawa branch.

The high court branch rejected his claim last November, saying, “Custody transfer would go against the son’s will.”

However, the Supreme Court in March overturned the ruling, saying it sees “clear illegality” in the mother’s failure to comply with the order, and sent the case back to the high court.

The Hague treaty 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 as a result of failed marriages, if requested by the other parent. Japan joined the convention in 2014.

Source:  “Nagoya High Court orders mom to return son to dad in US, despite boy’s claim ‘he wants to stay in Japan'”, The Japan Times, 18 July 2018

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.

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