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

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

BY COLIN P.A. JONES

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

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

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

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

Whittling down habeas corpus

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

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

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

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

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

Old remedy gets second life

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

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

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

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

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

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

‘Conspicuously unlawful’ case

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

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

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

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

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

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

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

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

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone.

Source:  “Japan’s Supreme Court orders a child be sent home in a Hague parental abduction case.  Maybe”, Colin P A Jones, The Japan Times, 1 April 2018 

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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

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

Letter in today’s Japan Times…

The Japan Times

Custody rights remain huge problem

Thank God for Christopher Savoie. I always remember the American father who forced Tokyo to act on the Hague Convention on International Child Abduction.

Years after Hague signing, parent who abducts still wins” in the May 1 edition and “Parental abduction victims hold rally to push for joint custody rights” in the May 6 edition are the most recent additions to my thick file of Japan Times stories on this issue which I began keeping in September 2009.

This is when Christopher Savoie famously, valiantly, virtuously and rightly tried to reclaim his kidnapped children from his Japanese ex-wife by seeking asylum inside the U.S. Consulate in Fukuoka. “Asylum” is self-evidently the right word for it. Ultimately, he failed. The consulate turned him over to Japanese authorities, but the Fukuoka police and prosecutors dropped their case and deported him instead. Prosecuting him would have been too shameful for Japan and cast the country in a humiliating bad light internationally. It was a textbook example of how it (sometimes) takes foreign pressure to move Japan forward.

More attention has been given to the plight of children and their alienated parents since then, but the application of the Hague Convention is not satisfactory. To make it satisfactory requires starting with acknowledging and treating the abducting parent (usually but not exclusively their Japanese mothers) as criminal kidnappers. Active intervention to repatriate the children followed by the prosecution and long imprisonment of the kidnapper are not excessive suggestions.

GRANT PIPER
NAKANO WARD, TOKYO