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

Justice Ministry panel looks to enforce custody transfers in absence of uncooperative parents

Justice Ministry panel looks to enforce custody transfers in absence of uncooperative parents

KYODO, JIJI

A government panel is considering making it easier for children to be handed over to parents who have secured custody even if the former spouse defies a court order to let them go, sources close to the matter said Tuesday.

The Justice Ministry advisory panel plans to allow the hand-over of children to parents who have won custody, even in the absence of the parent defying the court order, the sources said.

In September the panel said that, in principle, removal of children by court officials would be possible only if the parent currently living with the children is present at the time.

But the panel is now proposing that only the presence of the parent who won custody is required.

The panel reviewed an earlier report after critics said the parent who had lost custody may intentionally hide to prevent the hand-over of children, and that the absence of such parents has prevented transfer of custody in the past.

Japanese legislation implementing the Hague Convention on the Civil Aspects of International Child Abduction is expected to be revised as it currently requires the parent living with the children to be at the scene when children are handed over to the parent with legal custody.

“I hope to see an effective (legal revision) that will also give maximum consideration to the mental and physical well-being of children,” Justice Minister Yoko Kamikawa told a news conference Tuesday.

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

There is currently no stipulation in Japan’s legal system regarding parents who do not abide by court orders to hand over children to their former spouse. Such disputes have been handled based on regulations regarding the seizure of assets.

According to the proposal in the interim report, divorced parents who defy a court order and refuse to let their children go would be fined until they yield, in order to encourage them to voluntarily abide by the court decision. After compiling a fresh outline that includes the latest review the panel is set to submit its proposal to the Justice Ministry, possibly in autumn.

Last month, the U.S. State Department listed Japan as one of the countries showing a pattern of noncompliance with the Hague treaty in its annual report on the issue.

It said that Japan has made “measurable progress” since 2014, but pointed out the lack of “effective means” to enforce court return orders.

Source:  “Justice Ministry panel looks to enforce custody transfer in absence of unco-operative parents”, The Japan Times, 26 June 2018 (see also Brian Prager’s comment below the article)

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

Lawmaker: U.S. needs to pressure Japan to comply with international child abduction laws (USA Today)

Lawmaker: U.S. needs to pressure Japan to comply with international child abduction laws

LINKEDINCOMMENTMORE

Japan remains a haven for parental child abductions and a U.S. lawmaker Wednesday urged the Trump administration to do more to pressure the country to fulfill its obligations under international law.

Rep. Chris Smith, R-N.J., said during congressional testimony that between 300 and 400 children of international marriages have been abducted from the U.S. to Japan since 1994, and that more than 35 are still awaiting reunification with their American parents.

“Every day these children are separated from their U.S. parent, the damage compounds,” Smith said before a Congressional subcommittee on global human rights. “We must do better. We must not leave any child behind.”

Under international pressure, in 2014 Japan signed The Hague Convention on International Child Abduction. The treaty requires the government to set up a process to allow foreign parents to appeal for visitation or return of their children. But Japan has been slack in administering the convention, according to Smith.

 “How many of these children have come home four years later?” asked Smith. “How many even have access to their left behind parent now?  Almost zero.”

James Cook, a Minnesota medical device specialist trying to gain custody of his four minor children from his estranged Japanese wife, also testified before Congress.

In July 2014, his Japanese wife Hitomi Arimitsu took their children to Japan to visit her family and refused to return. Cook submitted an application for return under the Hague treaty and the case has made its way through both the Japanese and American court system, but Cook has still not been able to see his children.

A Minnesota court ordered the return of Cook’s children in 2017, but the ruling wasn’t carried out in Japan.

A key issue is that Japan does not have a way of enforcing its Hague commitments. It requires the abducting parent to voluntarily turn the children over and doesn’t allow the use of force in extracting the children. There have been numerous cases of parents simply refusing to comply with the Hague rulings.

Cook’s wife petitioned a Japanese court against the ruling to return the children and it was overturned, a decision which Japan’s Supreme Court upheld in December 2017.

“[My wife] has achieved the perfect consequence-free abduction with the aid of Japan’s systemic non-compliance and [the US Department of State’s] inaction,” Cook said in his testimony.

“After over 2.5 years in this process, I have nothing,” he said. “This process has cost me everything.”

Attention to the issue within Japan has been growing in recent weeks. Last month, all EU Ambassadors to Japan signed an official letter of diplomatic protest to pressure Japan to follow international law and enforce decisions which give an international parent custody or visitation rights.

Also in March, Japan’s Supreme Court ruled that a Japanese mother who is refusing to return her child to their father in the United States is “illegally restraining” the child under the Hague Convention.

It was the first such ruling by a Japanese court.

The court ruling and international pressure are a cause for optimism, according to John Gomez, an American who is chairman of the Kizuna Child-Parent Reunion group in Japan.

Gomez said that barriers remain, including an underlying “continuity principle” in Japanese courts means that the abducted child stays with the abducting parent.

“Until the ‘continuity principle’ by which judges in Japan issue rulings is actually discarded and kidnapped children are returned, we must keep pushing to the utmost for the children to be returned to their loving parents,” said Gomez.

Rep. Smith said in his testimony that the State Department needs to apply more pressure on Japan and other countries that have refused to cooperate in returning abducted children. A 2014 law that Smith sponsored, the Goldman Act, requires the State Department to develop an agreement with Japan about children that had been abducted and to hold Japan accountable.

However, Smith said that no action has been taken against Japan for past or current cases, and the State Department hasn’t even listed Japan as “non-compliant” in its annual report on the Hague convention.

Source:  “Lawmaker:  US needs to pressure Japan to comply with international child abduction laws”, USA Today, 11 April 2018 

Special Advisor for Children’s Issues to Travel to Japan and the Republic of Korea

Special Advisor for Children’s Issues to Travel to Japan and the Republic of Korea

Media Note

Office of the Spokesperson
Washington, DC
December 1, 2017

The Special Advisor for Children’s Issues, Suzanne Lawrence, will travel to Tokyo and Seoul from December 4-14.

Special Advisor Lawrence will lead the U.S. delegation in a conference focused on the Hague Abduction Convention in Tokyo, which will provide an opportunity to engage with representatives from countries throughout the Asia Pacific region on the critical issue of international parental child abduction. The Special Advisor will also meet with government officials in both Tokyo and Seoul to discuss intercountry adoption and international parental child abduction issues.

The United States is dedicated to supporting intercountry adoption as a viable option for children in need of permanency, and to preventing and resolving international parental child abduction cases.

For more information about the Department of State’s Office of Children’s Issues, visit: www.adoption.state.gov and www.travel.state.gov/childabduction

Source:  “Special Advisor on Children’s Issues to travel to Japan and the Republic of Korea”, US Department of State press release, 1 December 2017


Our Leadership

Suzanne Lawrence
Special Advisor for Children’s Issues
U.S. Department of State
Bureau of Consular Affairs

Ambassador Suzanne Lawrence

Suzanne Lawrence is the Special Advisor for Children’s Issues. Prior to arriving in Washington, she served as the Deputy Chief of Mission at the U.S. Embassy in Athens, Greece. Ms. Lawrence has also served as a Senior Advisor for the Assistant Secretary in the U.S. Department of State’s Bureau of Consular Affairs.

Ms. Lawrence is a career member of the U.S. Senior Foreign Service, class of Minister-Counselor. Previously, she has served as the Director of the Senior Level Division in the Office of Career Development and Assignments in the Bureau of Human Resources, and as Director of the Office of Policy Coordination and Public Affairs for the Bureau of Consular Affairs.

Overseas, Ms. Lawrence was the U.S. Country Consular Coordinator for Australia and Deputy Principal Officer and Consular Section Chief at the U.S. Consulate General in Sydney, Australia. Ms. Lawrence also has served overseas in Jerusalem, Dublin and Caracas.

Domestically, Ms. Lawrence has worked as a desk officer in the Bureau of Western Hemisphere Affairs, as the East Asia and Pacific Division Chief in the Office of Overseas Citizens Services/American Citizens Services and Crisis Management, and as the spokesperson for the Bureau of Consular Affairs.

Suzanne holds a Bachelor of Science in Foreign Service from Georgetown University’s School of Foreign Service. Her graduate studies include a Master’s degree in international management from the American Graduate School of International Management (“Thunderbird”) and a Master’s degree in strategic studies from the National War College at the National Defense University.

Suzanne is married and has a daughter.

Source:  US Department of State (accessed on 11 December 2017)