Japan signed abduction treaty but for ‘left-behind’ parents that doesn’t mean much

Japan signed abduction treaty but for ‘left-behind’ parents that doesn’t mean much

The Washington Post 

James Cook is a Minnesota man in a custody battle with the Japanese mother of his children. (James Cook,/Courtesy of James Cook)
James Cook wants his four children home in Minnesota. His estranged wife, Hitomi Arimitsu, says they want to stay with her in Japan. And so they have been going around in circles through the courts for almost three years.

If child custody battles are messy, expensive affairs when the parents live in the same country, they’re exponentially more so when the parents live in different countries and are fighting over where the children should live and which place should have jurisdiction.

Japan signed The Hague Abduction Convention, the treaty that governs international child abductions, in 2014 but is struggling to put its provisions into effect.

That is where the Cook family is caught.

“For three years of their lives, these kids have not had their dad. Kids need their dad, they need both their parents,” Cook said via Skype from his home in Minnesota. “I can’t describe to you the hell that this has been.”

Cook, who studied Japanese in college, and Arimitsu, a Japanese woman who attended a university in Minnesota, had lived in the United States for almost the whole time they had been together. But three years ago this week, with their marriage on the rocks, Cook agreed that Arimitsu could take their four children to Japan for the summer — with a notarized agreement that she would bring them back.

When that ended, they agreed that Arimitsu and the children would stay on a little longer, while Cook, who had lost his job, looked for work.

By the end of the year, Cook realized his family wasn’t coming back.

In the past two years, the pair has been going through acrimonious court battles in Osaka and in Minnesota, and each has won some and lost some rounds.

As is common in such cases, they have wildly different versions of events and focus on the rounds they’ve won.

Cook says an order in Minnesota last month, which found Arimitsu in contempt of court and upheld two orders from December that she return the four children to their father, should stand. In that case, the judge awarded Cook temporary sole legal and physical custody of the children.

But Arimitsu, through her lawyer Tomoko Kamikawa, said that because the Osaka High Court in February rejected Cook’s request to have the children returned, there is no valid return order under The Hague Convention. Cook has appealed this ruling to Japan’s Supreme Court.

The children do not want to return to the United States, Kamikawa said.

The crux of the problem, Cook and other “left-behind parents,” say, is that Japan — unlike other signatories — has no way of following through on its Hague commitments.

“Enforcement is one of the key problems,” said John Gomez, an American who heads the Kizuna Child-Parent Reunion group in Tokyo and is helping Cook. “Every country has to create implementation legislation to enforce their orders, but Japan basically cannot enforce their orders.”

The legislation that Japan passed to implement The Hague provision forbids the use of force, and stipulates that the children must be retrieved from the premises of the parent who has taken them. The “taking parent” must be present. The enforcement officers are basically bailiffs who are more used to repossessing washing machines than extracting children from emotionally charged situations.

This essentially means that enforcement involves an official at the gate calling for the children to come out, while the taking parent is inside with them.

“All of this was completely predictable,” said Colin Jones, a law professor at Doshisha University in Kyoto and an expert on child custody law in Japan. “Without dealing with enforcement methods, it was just a matter of time until a case like the Cook case happened.”

The U.S. government has expressed misgivings about Japan’s implementation of The Hague convention provisions. “The [State] Department is concerned about Japan’s ability to quickly and consistently enforce return orders,” it said in its 2017 annual report on international child abductions.

But the Japanese government says that it is making good progress.

“It’s been only three years since Japan entered into The Hague Convention,” said Hajime Ueda, director of The Hague Convention Division in the Foreign Ministry. “It takes time because every case is unique. From that point of view, we have been doing quite a good job.”

Eight children involved in five cases have been returned to the United States since Japan signed The Hague Convention, Ueda said.

The convention was a politically charged issue in Japan, with a substantial amount of opposition to signing it, so even becoming a signatory in 2014 was a major achievement. Experts note that it took other signatories some time to change domestic legislation to allow enforcement of The Hague Convention provisions; Germany, for instance, took about five years.

The U.S. Embassy in Tokyo is dealing with about 70 child abduction cases, 42 of them filed since Japan signed the convention, and 10 of those seeking the return of children to the United States.

The other cases just involve access — another thorny issue in Japan, where there is no concept of joint custody.

The prevailing wisdom in Japan says it is upsetting or disruptive for children to continue to see both parents after a marriage breaks down, so one parent — almost always the mother — gets full custody and the other parent usually has two hours’ access to the children each month.

“Visitation is the most problematic thing with Japan. A lot of cases about return orders are actually about access, about the noncustodial parent being able to maintain a relationship with their child,” said Jones of Doshisha University.

According to Gomez’s research, about 3 million children in Japan have lost access to one parent after divorce in the past 20 years – about 150,000 a year.

Children age out of the system at 16, so time is on the taking parent’s side, according to people involved in custody disputes.

And nothing will change for international custody cases until the domestic system that favors sole custody changes, experts say.

This is difficult because Japan has a family registry system, which operates as the foundation for all documentation. A person can be on only one family registry so after a divorce, children are usually removed from their father’s family registry and placed on their mother’s.

“The parent who becomes noncustodial loses all of their parental rights and effectively becomes a stranger to the child,” said Bruce Gherbetti, another “left-behind” parent who is advocating for change through the Kizuna group.

For now, that leaves Cook, who has found work with a medical device company, sitting in Minnesota, having no contact with his children.

“I’m sad we are in this mess and I’m concerned about my children,” he said. “This is the heartbreak of being a ‘left behind.’ ”

An earlier version of this article misspelled the name of Hitomi Arimitsu. The story has been updated.

 

Source:  “Japan signed abduction treaty but for ‘left behind parents’ that doesn’t mean much”, The Washington Post, 16 July 2017

 

Two years after Japan signed Hague, children have been returned but old issues remain

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Two years after Japan signed Hague, children have been returned but old issues remain

The Japan Times

by

Apr 17, 2016

‘What brand of Champagne did you drink?”

The lawyer delivered the question with a dramatic flourish, and I suppose it was a reasonable question to ask, even if rhetorically. I was being cross-examined as an expert witness in a child custody-related trial in a Western courtroom. One parent wanted to relocate to Japan with the child, the other was objecting.

This was 2015. In a 2008 Japan Times column written about a rumor that Japan was preparing to sign the Hague Convention on the Civil Aspects of International Child Abduction, I had declared: “I do not plan to crack open any Champagne until an abducted child is actually returned home.” The rumor proved wildly premature, but Japan ultimately ratified the convention, which, together with a package of baroque implementing laws and regulations, came into effect from April 2014.

The question about my Champagne preferences (Veuve Clicquot, by the way, if anyone is buying) was reasonable as a challenge to my reliability as an expert, yet was arguably irrelevant to the issue at bar: What could the court expect in terms of preserving the relationship between the child and the left-behind parent after the other parent and their child relocated to Japan? Unfortunately, “Not very much” may still be the answer.

But first, credit where it is due: In the two years since Japan signed the convention, more children abducted to or unlawfully retained in Japan have been returned to their home countries than at any time in the past. The Ministry of Foreign Affairs, Japan’s “central authority” for convention purposes, has handled almost 200 applications for assistance, and returns have been achieved in both directions (see table).

The Foreign Ministry has put significant effort into implementing the treaty and performing its central authority role. (A ministry representative also kindly responded to my inquiries in connection with this column.) It has sought to deter abductions through awareness programs, as well as foster amicable resolutions to abduction and visitation disputes by supporting mediation programs specifically designed for convention cases. (I am a mediator for one of them.) It also provides financial assistance for the translation of court documents and has set up a special online system (named Mimamori) for supervised cross-border “virtual visitation.”

Amicable resolutions are great, but there is not always much amity left between parents when one of them unilaterally spirits the children away to another country. Sometimes fear of abuse is a factor, but not always. Sometimes it is not; sometimes the taking parent is just trying to erase the other parent from his or her life, which necessitates erasure from the children’s lives as well. Having spent over a decade watching countless cases like these transpire, I believe that intentionally denying a parent — a former spouse, or life partner at that — a loving relationship with his or her child may be the worst thing one human being can do to another, short of physical violence. It is rarely good for the child, either.

The Hague Convention makes this harder by requiring that children taken or retained across borders in violation of custody rights be returned to their home country (where the other parent is typically also resident). Returns are the rule, but there are exceptions. One of these is if the child is living in Japan with the consent of the other parent. Disputes over relocation during or after divorce also being common, a child may also end up living in Japan with one parent through the permission of a foreign court.

When Japan was not a convention signatory, it was a red flag to foreign judges whenever a parent sought leave to take the children to Japan, whether to visit or live. “Just taking the kids back for the summer to see Grandma” and then staying is a pretty common abduction scenario everywhere (with Grandma sometimes playing a role in persuading the parent to stay). In Japan it was almost always a successful strategy — one that would frustrate whatever a judge in the country of origin might have decided about the child custody arrangements. Now, this type of “abduction by retention” should result in a Japanese court issuing a return order.

With Japan having joined the treaty, parents and foreign judges alike may now feel more secure about the idea of a child being brought here to live. Yet if that happens with the consent of the other parent or permission of a foreign court, a return order will then be difficult — if not impossible — to obtain. While judges in American states may be accustomed to retaining jurisdiction over children taken to another state and being able to enforce their rulings on custody, this probably won’t work with a child taken to Japan; if the scenario does not constitute an “abduction,” parents will likely be left to seek relief in Japanese family courts outside the convention framework, and they should lower their expectations accordingly.

Judges still finding their way

First, conversations with lawyers indicate that even in abduction cases that clearly fall under the convention, the Osaka and Tokyo family courts charged with resolving them are still figuring things out. Family court judges are likely accustomed to resolving domestic cases without being constrained by the rules of evidence and procedure that should apply in Hague cases.

At the same time, however, such cases are supposed to be resolved more expeditiously, despite involving complex issues such as the interpretation of foreign law: What do “rights of custody” mean in Country X, for example? (There is an international network of “Hague judges” in which Japanese judges participate, but apparently not to the extent of using it as an informal source of information on foreign law and practice in specific cases.) Similarly, which party has the burden of proving what — a parent’s consent, for example? And what if a parent or foreign court’s permission to relocate to Japan with a child is based on the relocating parent’s promise of cooperation with visitation — a promise that is immediately broken after getting off the plane?

Some of my lawyer interlocutors complain about a lack of procedural clarity. Perhaps this is a matter of time and more cases will resolve these issues.

Mixed messages on visitation

Second, visitation in Japan remains patchy and difficult to enforce. The convention provides for facilitation of cross-border access (aka visitation) but with limited substance. While the Foreign Ministry offers support, it is just that — support, such as contacting the other parent and offering online visitation and mediation. Such support has reportedly resulted in visitation in some cases, and even led to a few instances of children being returned.

If cooperation is not forthcoming, however, the parent seeking visitation is left seeking recourse in family courts, pretty much like everyone else. Here the stories I hear seem have not changed dramatically: parents going for months without seeing their children, mediation sessions where nothing seems to happen, judges who seem unduly solicitous of parents engaging in alienating behavior, and courts making decisions based on expediency rather than the best interests of children.

There are some signs of changes: Courts seem to be awarding visitation more, and I hear more about overnight stays, though recent judicial statistics show them occurring in less than 10 percent of cases. Also, in a December 2014 decision, the Fukuoka Family Court transferred legal custody of a child from mother to father due to the former’s obstruction of visitation. Only last month, the Matsudo branch of the Chiba Family Court ordered a mother to hand over her daughter to the father after years of blocking contact between the two. Japanese family court professionals have long written about the “good parent rule” — giving custody to whichever is more understanding of visitation with the other — as a remedy for such intransigence, but these are the first instances I have seen of it actually being applied.

Yet such developments should be treated with caution. Seemingly revolutionary decisions have to survive appeals and be enforced to be truly meaningful. In the Fukuoka case, only legal custody was transferred, something that can be accomplished simply by filing the judgment with the family registry; it does not automatically equate with the father getting contact, only the mother needing to seek his cooperation to take legal acts like applying for a passport on their child’s behalf.

As for the other case, branch family courts have long been the dumping ground for judges disfavored by the judicial hierarchy, meaning the Chiba case could be an anomaly as much as a harbinger of true change. Even the family courts’ increased acceptance of visitation seems to be tied to growing use of supervised visitation through NPOs staffed by (surprise!) retired family court personnel. In other countries supervised visitation is limited to cases where a parent is abusive or potentially dangerous; in Japan it seems to be becoming the easy-to-award/recommend default solution for when the custodial parent is intransigent.

Visitation thus still seems to be driven by what the custodial parent can be convinced to agree to, rather than what might be meaningful for the child. The Foreign Ministry’s Mimamori online supervised visitation system seems to be an extension of this logic: that any contact is better than none, and might lead to something more meaningful (which is sometimes the case). Understandably, some parents who have done no wrong yet are expected to accept being treated like criminals in order to interact with their own children find this abhorrent.

Lack of enforcement — and details

Third, an order from a Japanese court to return a child, whether across the street or to another country, can often still be frustrated by a parent simply refusing to comply, or getting the child to refuse. This is said to have already been an issue in convention cases, which should not surprise anyone: Before the treaty came into force, the nation’s shikkōkan — the bailiffs who enforce civil judgments — announced that it would likely be impossible to enforce return orders without the child’s cooperation. While the process of implementing the Hague Convention has brought some clarity to the theory and practice of enforcing returns, without sanctions for contempt (which Japanese judges lack in these cases) or other police-like powers to back them up, court orders can end up being meaningless pieces of paper.

Fourth, and finally, after two years and a number of cases, the workings of Japan’s Hague courts remain invisible. No judgments have been published, nor do there appear to be any statistics available on case resolutions. There is no way for outsiders to know how Japanese courts are deciding whether or not to return children.

At least I can drink some Champagne (Moet & Chandon is fine too): Japan did join the convention, and lawyers tell me it is having a real effect in deterring abductions. Yet it shouldn’t be forgotten that the convention’s potential remains limited by the constraints of the Japanese family justice system as a whole. Describing those requires more words than a single column allows, so keep watching this space.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone. Law of the Land appears on the second Monday Community Page of the month. Your comments and story ideas: community@japantimes.co.jp

(April 1, 2014, to March 31, 2016) APPLICATIONS FOR HELP WITH RETURNS APPLICATIONS FOR HELP WITH VISITATION
APPLICATIONS TO MINISTRY OF FOREIGN AFFAIRS RELATING TO CHILDREN IN JAPAN (AND THE FOREIGN COUNTRY INVOLVED)
  • U.S.11
  • France4
  • Australia4
  • Germany3
  • Canada2
  • U.K.2
  • Singapore1
  • Italy1
  • Spain1
  • Russia1
  • Switzerland1
  • Belgium1
  • Sri Lanka1
  • Turkey1
  • Fiji1
  • Colombia1
  • South Korea1
  • U.S.39
  • U.K.6
  • France5
  • Australia4
  • Canada4
  • New Zealand3
  • Singapore3
  • Mexico2
  • Germany1
  • Costa Rica1
  • Subtotal37
  • Rejected*8
  • Total45
  • Subtotal68
  • Rejected*7
  • Total75
APPLICATIONS TO MINISTRY OF FOREIGN AFFAIRS RELATING TO CHILDREN IN FOREIGN COUNTRIES
  • Thailand6
  • Russia4
  • Brazil4
  • South Korea3
  • U.S.3
  • Germany2
  • Canada2
  • France1
  • U.K.1
  • Italy1
  • Spain1
  • Switzerland1
  • Slovakia1
  • South Africa1
  • Peru1
  • Romania1
  • Sri Lanka1
  • Belarus1
  • Sweden1
  • U.S.5
  • Russia3
  • Canada3
  • Germany2
  • Ukraine2
  • Thailand2
  • Australia1
  • South Korea1
  • Uruguay1
  • Netherlands1
  • Poland1
  • Hong Kong1
  • Subtotal36
  • Rejected applications*3
  • Total39
  • Total23
Total Applications 84 98**

STATISTICS IN TABLE COURTESY OF MINISTRY OF FOREIGN AFFAIRS

Notes

* Applications for assistance may be rejected by the Foreign Ministry because they do not satisfy requirements for assistance (e.g., the requesting parent is unable to demonstrate rights of custody or visitation). In some instances, rejections reflect the fact that the taking parent has already returned with the child voluntarily, rendering the application moot.

** The far greater number of requests for visitation assistance for children in Japan in part reflects the fact that Japan allowed applications for assistance with visitation with children in Japan even in cases pre-dating the Hague Convention’s coming into force.

Returns

• The data regarding returns reflects applications to the Foreign Ministry for assistance in achieving the return of a child either in Japan or in a foreign country, which in the first instance involves encouraging the taking parent to return voluntarily or to mediate with the other parent. Accordingly, only some of these cases are ultimately resolved through court.

• According to the ministry, 14 children were returned from Japan, through mediation or other voluntary arrangements, alternative dispute resolution or court orders, and nine children were returned to Japan.

• These figures do not include some voluntary returns in cases where the Foreign Ministry was not formally involved.

• Three returns from Japan and one to Japan reportedly resulted from the visitation assistance process rather than the return process.

 Source:  “Two years after Japan signed Hague, children have been returned but old issues remain”, The Japan Times, 17 April 2016

Foreign Secretary’s Visit to Hiroshima, Japan

As posted this time last week, our Foreign Secretary, Philip Hammond, is at present in Hiroshima, Japan, the city remembered by all but me for other reasons.  In my case it is the city in the world that has the greatest resonance in my heart because my son is there, abducted from his father.  That much at least I know.

I have not heard from the Foreign Office in response to my email as reproduced in the post of a week back.  Nor was there a response to an earlier email to the Foreign Office – covering similar ground – as far back as 16 August 2014.

The news reports of Mr Hammond’s visit to Japan stress the importance given to security issues.  No one would seek to detract from that.  But I struggle to understand why – as I fear must be the case – Mr Hammond and his officials, even without sight of my email, failed to free up a few moments with the Japanese Foreign Minister to raise the issue of pre-Convention cases of international child abduction.  That is something that should be one of the very few issues of real contention between the UK and Japan, two countries that for a long time have enjoyed a good relationship.  The current UK guidance on parental child abduction to Japan recognises the problem but has nothing to say about the resolution of it. The guidance simply states that:

The Hague Convention cannot be used retrospectively.  If children were taken to Japan before 1 April 2014, left behind parents will be unable to use the UK Convention to return their children to the UK.

So what is the Foreign Office’s answer to this statement of the obvious?  And why was nothing apparently said at this meeting?

The G7/G8 meeting of Foreign Ministers in Hiroshima today – Mr Hammond is sat to the immediate left of US Secretary of State Kerry; source:  Mr Hammond’s Twitter account

Mr Hammond meeting with his Japanese counterpart, Mr Fumio Kishida; again taken from Mr Hammond’s Twitter account

Welcome reception today at the Grand Prince Hotel, Hiroshima; see article on MOFA website here

 

 

 

 

Parents invited to ‘meet’ their children online

Parents invited to ‘meet’ their children online following failure of couple’s international marriage

JIJI

Jul 26, 2015
The Foreign Ministry has launched a program enabling parents and children to meet online despite being split across international borders following the failure of the parents’ marriage.

Launched in June, the program uses third-party monitors to follow the conversation and watch for parents threatening their children or leveling unfair accusations against their former partners. If that happens, the conversation is terminated.

The program is based on the Hague Convention on the Civil Aspects of International Child Abduction, a treaty focusing on child custody after the breakup of international marriages. The program allows parents whose children were abducted by their former partners to ask signatory countries to help set up meetings with their children.

Under Japan’s system, online meetings using personal computers or smartphones are set up if a request by one parent is approved by the other.

The plug is pulled if third-party monitors decide that the conversation is inappropriate.

“The presence of third-party monitors can increase options for meetings between parents and children,” one official said.

The monitors are from three Japanese institutions, including the Family Problems Information Center, a public-interest corporation tasked with addressing family problems.

Some other nations also convene online meetings of this kind, but it is rare to have the involvement of third-party monitors, ministry officials said.

Cases that date from before Japan joined the treaty are also eligible for the meeting support program, they said.

Source:  “Parents invited to ‘meet’ their children online following failure of couple’s international marriage”, The Japan Times, 26 July 2015

First Annual Report on International Parental Child Abduction

The US Department of State has published its first Annual Report on International Parental Child Abduction.  The statutory requirement to produce such a report every year was imposed on the Department by the Sean and David Goldman International Child Abduction Prevention and Return Act, about which I have written before – most notably here but also elsewhere.  The Act was only signed into law last year and, as such, the first report only covers cases in the last quarter of 2014.  It would therefore be unwise to draw any firm conclusions from the data.

In relation to Japan, Table 2 (at page 17 of the report) shows that there were 6 new Hague Convention abduction cases reported to the Department of State of which, at the end of the reporting period, 1 was submitted to the Japanese authorities to deal with and 2 were not referred; the other 3 must still have been pending action at the year’s end.  One case was ‘resolved’ as at the end of the reporting period.  Figure 2 (at page 6 of the report) states that a resolved case is where:

The child is returned to the country of habitual residence, pursuant to the Hague Abduction Convention or other bilateral procedures, if applicable;

The judicial or administrative branch, as applicable, of the government of the country in which the child is located has implemented, and is complying with, the provisions of the Hague Abduction Convention or other bilateral procedures, as applicable;

The left behind parent reaches a voluntary arrangement with the other parent;

The left behind parent submits a written withdrawal of the application or the request for assistance to the Department of State;

The left behind parent cannot be located for one year despite the documented efforts of the Department of State to locate the parent; or

The child or left behind parent is deceased.

Table 2 also shows that here were 40 applications for contact over the 3-month reporting period.  Of these, only 6 (14%) were resolved.  This is an important indicator of the scope of the (continuing problem in Japan:  many of these 40 cases are applications from left behind parents whose children cannot be returned to the States under the Convention because the abduction took place prior to the coming into force of the Convention.  The contact provisions contained within the Convention, about which I recently wrote here, do apply to pre-1 April 2015 abductions if the child remains under 16.

This issue is tackled head-on in the report which contains the following extended passage on the situation in Japan (at page 26):

As an example of the USCA’s [United States Central Authority] policy of promoting Convention partnership worldwide, the USCA spent more than a decade actively pressing Japan to ratify the [Hague] Convention.  The USCA maintained close contact with the government of Japan in 2012 and 2013 as Japan’s parliament prepared and passed the necessary legislation to implement the Convention.  On April 1, 2014, the Convention entered into force between the United States and Japan.  Since April, the USCA has developed a close and productive working relationship with the Japan Central Authority.

The USCA continues to urge Japanese action on non-Convention cases.  There are still more than 50 non-Convention cases of abduction to Japan, all of which predate Japan’s ratification of the Convention.  Many of these have been pending for years.  In these cases, parents are not able to seek return of their children under the Convention; however as of December 31, 2014, US left behind parents have filed 31 Convention access applications.  Of the few cases of which the USCA is aware in which parents have sought redress in Japanese family courts, none have resulted in either meaningful parental access or the return of the child to the United States.  [Emphasis added].

The USCA and the US diplomatic mission in Japan work with the Japanese government to bring about the return of abducted children to the United States or to obtain parental access.  The Department’s efforts have included individual requests through diplomatic channels seeking Japanese assistance in enforcing US parents’ rights and in persuading taking parents to provide access; exchanges and training for lawyers and officials; and outreach and public diplomacy efforts.  The Department continues to encourage the government of Japan to remove obstacles that parents still face in gaining access to or return of their children.  Meanwhile, the Japanese government is developing its own resources to address issues related to child abduction since joining the Convention.  Many of these initiatives, such as promoting mediation and alternative dispute resolution methods as a way for parents to reach agreement, using video-conferencing to foster communication between parents and children, and engaging in pubic outreach activities, may assist in non-Convention cases as well.  Despite these encouraging steps, during the reporting period almost all of these cases remained unresolved.  [Emphasis again added].

Japan also features in Table 3 (at page 22 of the report), a list of countries that qualify for ‘recommendations’ to apply to them because they have 5 or more pending abduction cases as at the end of the reporting period.  Six ‘recommendations’ are available in these circumstances (see the list at page 20 of the report); Table 3 indicates that the 3 less significant ones fall to apply, namely in the case of Japan:

The State Department promotes training with judicial and administrative authorities on the effective handling of international parental abduction (IPCA) cases.

The Department promotes training with law enforcement entities on how to effectively locate children and enforce court-ordered returns.

Embassy and consulate public affairs and consular sections promote the resolution of IPCA cases with public diplomacy and outreach activities.

These sanctions are, of course, a very light touch.  Japan was not on the more serious list of ‘countries demonstrating a pattern on non-compliance’ (see Table 4 from page 30 of the report) but the first year’s report only covered 3 months – it will be interesting to see whether, over the course of 2015, Japan so lets down children and parents that it makes it into this hall of shame.