Japan’s Supreme Court hands down a road map for parental child abductions


Japan’s Supreme Court hands down a road map for parental child abductions
by Colin P.A. Jones

Issues | LAW OF THE LAND

Dec 31, 2017

 

 

In 2014, after years of diplomatic pressure and countless horror stories about parents losing all contact with children taken to or retained in Japan, the nation finally joined the Hague Convention on the Civil Aspects of International Child Abduction. This should have relegated to history Japan’s growing reputation as a “black hole” of abduction of children by one parent — usually the Japanese one —after the breakdown of a marriage or other relationship.
Less than four years later, in a sadly predictable ruling issued on Dec. 21, Japan’s Supreme Court confirmed abductions can continue. The difference seems to be that lower courts will pay lip service to the ideals of the convention by going through the motions, and various well-intentioned institutions now exist to help achieve the amicable resolutions that should ideally end such cases. But visitation with taken children will still be difficult or impossible, return orders will remain unenforceable and, at the end of it all, courts will be able to find it best for the children to stay in Japan.

 

The baroque procedural regime adopted by Japan to implement the convention was designed to give lower courts various ways to avoid returning children. Now that the top court has ratified such a result, we can probably expect to see more cases like this.
Children will be the principal victims of such abductions. However, I can’t help but feel sympathy for Japan’s Ministry of Foreign Affairs. It bore the brunt of foreign criticism before Japan joined the treaty and, acting as Central Authority under it since , has devoted significant resources to resolving cases and helping the parents and children involved in such cases. This judgment will probably now make its job that much harder.

Escape hatches do their job

The case on which the court ruled has already been widely reported in the Western press. It involved the four children of an American father and Japanese mother.
According to the Supreme Court’s judgment they were brought to Japan by the mother in July 2014 with a promise they would be returned to their home in the United States the following month. They stayed. The following year the father applied to a Japanese court for a return order under the Hague Convention.
In 2016, the Osaka High Court issued an order that the children should be returned. The court found that the older children (11 at the time they were brought to Japan) were found to not want to return, but returning just the younger ones (who were both 6) would have been bad for all of them.
The basic concept underlying the convention is that children in these situations should be returned — promptly — by courts where they have been taken to their jurisdiction of habitual residence, and decisions about their long-term best interests should be made by courts there. The convention provides a few exceptions where returns can be refused, specifically: (i) if the child “objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views” and (ii) “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
Having obtained a return order, the father then set about trying to enforce it. Here he encountered the unpleasant reality that Japanese family court orders involving children are generally unenforceable. No adults get arrested or even punished for noncooperation, meaning abducting parents (and the family members who often help them) can flaunt the law and the rulings of Japanese courts. This is relatively common knowledge within Japan, where even domestic divorces can see a child unilaterally taken by one parent and the other losing all contact for years. That a case like this would arise under the Hague Convention was always predictable; it was just a matter of when it would happen.
Whilst refusing to cooperate with the return order, the mother filed a motion to have the whole matter reconsidered based on changed circumstances. This was one of the escape hatches built into Japan’s implementing act — the ability of a losing party to seek a new trial (after an appeal!), even though the whole point of the process is to get kids back home as quickly as possible.
The Osaka High Court did rule expeditiously on this motion (impressive when one considers it can take years or even decades for a wrongly convicted criminal defendant to get a retrial based on new evidence) and — lo and behold — found it was no longer appropriate to return the child because the father lacked the wherewithal to support them. (That the father had been forced to pursue ruinously expensive cross-border litigation to remedy the abduction did not seem to matter.)
This was the other bolt-hole built into Japan’s implementing act: the ability of judges to consider the child-rearing capabilities of both parents in determining whether the exception in (ii) above might apply. In other words, the court did a custody evaluation about what would be in the best interests of the children, which is one of the basic things that is not supposed to happen in Hague Convention cases. The basic premise, again, is that custody determinations should be made by courts where the children have been habitually resident.
That this escape hatch would be used in a difficult case such as this was also predictable. Otherwise Japan’s courts would have suffered the ongoing bother and embarrassment of a demonstrably unenforceable return order hanging out in limbo in a high-profile case.

Top court decides on custody

It is this ruling that the five judges on the Supreme Court’s 1st Petty Bench upheld. Judgments of Japan’s Supreme Court are often terse, particularly when dealing with subjects like excessive detention, police misbehavior, constitutional violations and so forth. Part of the rationale may be that, except in rare cases, the top court only considers appeals as to matters of law and does not revisit lower court findings of fact, and the judgment just needs to contain conclusions about the applicable law.
When it comes to family cases, however, the court sometimes breaks from this staid mold and its judges presume to explain what is best for children they have never even met. In their December ruling the court declared in no uncertain terms that “the appellant (father) lacks the financial basis to appropriately care for the children, and cannot be expected to receive ongoing support in their care and support from his family.” It would thus be bad for the children to be returned to America.
That in the course of ruminating on the best interests of the children the judges did not find it worth mentioning that they had been denied all contact with their father during the entire process is simply indicative of how little importance the Supreme Court attaches to the parent-child relationship, at least when it is inconvenient to the result that best suits the court system.
At risk of sounding repetitive, who is best suited to care for the children is precisely the type of decision that the Hague Convention expects to be made in the home country. Moreover, Article 20 of the treaty clearly states that “a decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.” Perhaps the court just found this language inconvenient when for all intents and purposes it conclusively determined the merits of the custody issues in this particular case — where the children would grow up and who would raise them.
There you have it. Courts in other countries should now be on notice that, despite Japan joining the Convention and a diligent Central Authority providing assistance to parents of taken children, return orders issued by the nation’s courts remain unenforceable, contact can be safely denied, Japanese judges looking for ways to let children stay in Japan can simply find fault with the left-behind parent’s imagined parenting capabilities and higher courts will ratify that decision as being “in the best interests of the children.”
By demonstrating such a low threshold for refusing returns and condoning noncooperation with enforcement proceedings, the Supreme Court’s ruling seems likely to serve as a road map for further abductions to come.
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 hands down a road map for parental child abductions”, The Japan Times, 31 December 2017

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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 

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

JT leading article (from Jan 2017): “Rules” on handing over a child

The Japan Times

Rules on handing over a child

Court rulings ordering a divorced parent to hand over a child to his or her former spouse are often ignored — largely because there are no specific procedures under the law governing enforcement of such a custody transfer. A revision of the relevant law is imperative to ensure that court decisions on child custody are enforced. There are two important points for consideration — creating a clear rule for the compulsory enforcement of a court order by a legally empowered official, and imposing financial penalties on the parties defying court orders to get them to comply. Either way, due consideration should be paid to the welfare of the children, including the potential psychological damage from the procedure.

In the absence of a specific legal procedure for custody transfers between divorced parents, the Civil Execution Law’s provision on the transfer of movable property is currently referred to in enforcing a court ruling ordering a divorced parent to hand over a child to the other party. But it would not stand to reason to treat children as if they were “property.”

In the case of international marriages, the compulsory execution of a court order on a custody transfer is possible under the 1980 Convention on the Civil Aspects of International Child Abduction, popularly known as the Hague Convention. As of November, 95 countries were parties to the convention, which Japan signed and ratified in 2014. A law setting domestic procedures needed to implement the convention has been enacted and put in force.

The law includes a detailed provision stating what an enforcement officer in charge of removing a child from a parent who abducted that child to Japan and handing that child over to the other parent should and should not do, including the need to try to persuade the abducting parent and asking for police assistance if necessary. The provision says an officer can use some form of power to restrain or make a parent who resists giving up the child comply, but prohibits the officer from using this power if it causes harmful effects on the child. The law says that if a court rules that a child must be moved back to his or her “state of habitual residence,” the parent who won the case can in principle ask for the decision to be executed by an enforcement officer after two weeks have passed. This rule leaves room for the disputing parents to agree on the transfer of the child in an amicable way without the involvement of an enforcement officer.

Last year, Justice Minister Katsutoshi Kaneda asked the Legislative Council, an advisory body, to look into revising the Civil Execution Law to set down specific procedures to enforce court decisions ordering the handover of children between divorced parents. Based on its recommendation, the government is expected to submit a bill for the revision to the Diet as early as next year.

Setting down the relevant procedures makes sense given what is happening to divorced parents and their children. In 2015, there were 97 cases in which divorced parents with parental prerogatives or the care and custody right over their children asked that their former spouses turn the children over to them, but the children were handed over in only 27 of the cases, according to the Supreme Court.

Merely setting the procedures for a compulsory execution of the court order — which would involve an enforcement officer stepping in to physically remove a child from one parent and hand him over to the other — may be too rigid and may not serve the intended purpose of the amendment. The procedures should include an indirect approach that may seem lukewarm but will eventually lead to the transfer of a child. One option would be to fine a parent who refuses to comply with the court and, to encourage compliance, the size of the fine would rise as long as the parent keeps refusing to obey the order.

Priority should be placed on the indirect approach so that the child handover can take place in a more amicable manner. But a mechanism should also be included that will trigger a compulsory enforcement if, for example, it’s suspected that a parent ordered to give up the child is seeking to dodge the ruling by continuing to make the payments. The law to implement the Hague Convention says that the removal of a child must be carried out when the child is together with the parent who took him or her to Japan, out of consideration for the psychological effects on the child. The advisory council should take into account how to minimize the risk of trauma on children in executing court rulings.

Source:  “Rules on handing over a child”, The Japan Times (leader), 26 January 2017 

New bill seeks to promote parent-child interaction following divorce

The Japan Times

New bill seeks to promote parent-child interaction following divorce

JIJI, KYODO

A cross-party group of lawmakers has drawn up a bill to promote parent-child interactions after divorces and marital separations, encouraging parents to maintain ties with their children mainly via visitations.

According to the bill, parents who are getting divorced would be required to put into writing the frequency of the visitations and how to share the child-rearing costs.

The lawmakers, including members of the ruling Liberal Democratic Party and the main opposition Democratic Party, aim to submit the bill to the Diet on June 18.

Among the bill’s basic principles are one that says parents must try to maintain sustainable relationships with their children after divorce. They also call for efforts to secure opportunities for the children to express their will and to ensure that their growth and personality development will not be impeded.

In addition to urging parents to maintain favorable relationships with their children through periodic visitations and other exchanges in a stable manner, the bill calls on the state to carry out related educational activities and provide the necessary support. It also urges local governments to make similar efforts.

On the other hand, the bill underscores the need for special consideration in cases of child abuse and domestic violence, including by banning visitations and exchanges.

It also asks the state to consider introducing a joint parental custody system under which the custody of a child is awarded to both parents after divorce.

The Legislative Council, which advises the justice minister, is discussing a potential amendment to the civil execution law to clarify rules for the handover of a child between divorced parents.

In Japan, where custody of a child must be decided between a father and a mother when they are divorced, conflicts often emerge over the issue of visitations, especially when parents are unable to communicate calmly, raising the need for the swift involvement of a third party.

Experts have called for setting up places to offer consultation services that can be easily accessed by parents, as there is a limit to what they can do by themselves to seek settlements.

Masayuki Tanamura, a professor at Waseda University, said many Western countries have support systems that enable parents to have consultations over how to raise their children after they get divorced.

“In Japan, the level of support before divorce is inefficient, leading to escalation of conflicts between husband and wife and resulting in lawsuits,” Tanamura said.

“There should be many cases that can be resolved beforehand, so the state and local governments need to enhance their support.”

According to government’s population survey, the number of divorces in Japan reached 226,215 in 2015, up from 222,107 cases the previous year, indicating that divorces are no longer uncommon in the country.

In line with the increase in divorces, the number of mediation and judgments at family courts has been on the rise over conflicts between a parent seeking access to his or her child and another parent rejecting the demand.

Source:  “New bill seeks to promote parent-child interaction following divorce”, The Japan Times, 6 February 2017