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  • Terrie’s Take 469: GOJ to sign Hague Convention on Child Abduction by 2010

    Posted by Dr. ARUDOU, Debito on May 25th, 2008

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    Hi Blog. The GOJ recently told the United Nations Human Rights Council that it suddenly has an interest in upholding international treaty against child abductions. Witness:

    ============================
    HUMAN RIGHTS COUNCIL
    Working Group on the Universal Periodic Review
    Second session, Geneva, 5 – 19 May 2008
    A/HRC/WG.6/2/L.10 14 May 2008
    DRAFT REPORT OF THE WORKING GROUP ON THE UNIVERSAL PERIODIC REVIEW
    Japan
    (excerpt)
    6. “Responding to various written questions submitted in advance, Japan stated its
    willingness to cooperate with Special Rapporteurs, including arranging visits to the country
    as time permits. Japan was also studying the relationship between the provisions of the
    Optional Protocol to the Convention against Torture protocol and domestic legislation,
    including on how the “visits” mentioned in the protocol will be carried out in practice. It
    stated that it regards the Hague Convention on the Civil Aspects of International Child
    Abduction and the Convention on Jurisdiction, Applicable Law, Recognition, and
    Cooperation in respect of Parental Responsibility and Measures for the Protection of
    Children as effective tools for children’s rights and welfare, and will continue to study the
    possible conclusion of the two conventions by giving due consideration to, inter alia, the
    current social system, and the cultural situation of Japan.”

    http://www.upr-info.org/IMG/pdf/UPR-_Japan_WG_report__text.pdf

    (More excerpts on Debito.org here.)

    ============================

    Well, what a nice little article in ABC News and a bit of pressure from a couple of governments won’t do! As witnessed in this nice little roundup in Terrie’s Take from last weekend. Forwarding in its entirety. Bests, Arudou Debito in Sapporo

    * * * * * * * * * T E R R I E ‘S T A K E * * * * * * *
    A weekly roundup of news & information from Terrie Lloyd.
    (
    http://www.terrie.com)

    General Edition Sunday, May 18, 2008 Issue No. 469 (excerpt)

    Two weeks ago, the Japanese government made a notable announcement that may make Japan more compatible with the legal conventions used internationally, and will be of particular benefit to non-Japanese spouses of Japanese. The announcement was that by 2010, Japan would sign the the 1980 Hague Convention on Civil Aspects of International Child Abduction, an international legal construct that attempts to deal with the thorny issue of court jurisdiction when children of international marriages are moved cross-border, often by a parent trying to thwart a court ruling in the previous jurisdiction.

    Currently, Japan is known as a haven for disaffected Japanese spouses who, in getting divorced, abscond with their kids back to Japan. Once in Japan they can dare their foreign spouses to try getting the kids back — something that despite around 13,000 international divorces a year in Japan and more overseas, has NEVER happened.

    The reason for this astounding statistic, that of zero repatriations of abducted children from international marriages after the kids have been abducted to Japan, is entirely to do with the attitudes of the Japanese judiciary and their wish to maintain 19th Century customs in the face of international pressure. Japan has ratified many parts of the Hague Convention treaties over the years, but in terms of repatriation of kids, they have been claiming for 20 years now to be “studying” the issue. That’s Japan-speak for “we’re not interested in making any changes”.

    Our guess is that the recent announcement occurred after pressure from the USA and Canada, in particular. Things started to come to a head about 5 years ago, when fed up by repeating occurences of child abductions from both of those countries, and despite court decisions there for custody to go to the local parent, the consular staff of a number of these foreign embassies started holding annual summits to discuss the problem. These discussions escalated to pressure on foreign governmental agencies and politicians in some of Japan’s biggest trading partners — and finally someone spoke to the Japanese government at a sufficiently high enough level to get their attention.

    The subject became especially sensitive when the Japanese were at the peak of their indignation over the North Korean abductions of Japanese citizens several years ago, and were seeking international support. All the while, Japanese law allowed similar types of abductions here.

    In case you’re not up on the state of play, there were 44,000 international marriages registered in Japan in 2006, and probably a good percentage of that number again of Japanese marrying overseas but not bothering to register back in Japan. The divorce rate within Japan is about 30%, and for Japanese living overseas (take the US as an example), it is typical of the local population, so more like 50%-60%. Thus there are a lot of international separations — many of which are not amicable.

    But it’s when the kids are involved that things start getting really nasty. Usually in the case of a divorced international couple going to court overseas and after custody is awarded, if one of the parents fears a possible adbuction situation, the couple can be placed under a restraining order not to travel without the other spouse’s consent. The USA, Canada, Australia, and UK all do this. The kids’ passports will often be withheld as well. Unfortunately, there have been a number of cases where the Japanese spouse then “loses” the kids Japanese passports and applies to the local consulate for replacements — only to hop a flight back to Tokyo a few hours later, with the kids in tow.

    Once in Japan, the jurisdiction suddenly falls to the Japanese courts, even if there is a foreign arrest warrant out for the absconding partner, and in several cases, even if there is an Interpol arrest warrant out. In Japan, there is no concept of joint custody, and the partner allowed to keep the kids is the one that has held them for the previous few months.

    The courts’ opinion here is that kids need a stable environment, and the act of being the only guardian for a period of time, even if that guardian was in hiding, qualifies for this — unless the kids are under 5 years old, in which case they will typically be returned to the mother (if the father is the abscondee), or to the father if the mother has deceased. But not always. There are cases where the Japanese mother has died and the Japanese grandparents have kept the kids, instead of returning them to the foreign father. You can read more about this sad state of affairs at http://www.crnjapan.com/en/.

    You won’t believe that this kind of thing is still going on in a first-world country like Japan in the 21st century.

    The Japanese court attitude thereby encourages Japanese spouses wanting to hang on to their kids to hightail it back to Japan and lie low for 6 months. Currently there has been no case, even after the Japanese Supreme Court has awarded rightful custody to the foreign parent, where that aggrieved foreign parent has been able to go get their kids back. The reason is quite simply that Japan doesn’t have a mechanism for properly enforcing civil suit judgments, and typically a breach of an order in a civil suit does not result in the offender being subject to a subsequent criminal suit.

    Thus, the Hague Convention on child abduction provides a mechanism whereby if children are illegally removed from their country of habitual residence, they must be returned, and the jurisdiction for subsequent court decisions is taken out of the hands of the Japanese courts. This is the first step in making international court rulings involving kids, stick.

    We believe that this is going to be a long and slow process, but once the treaty is signed and the first few cases start to be heard, either the kids involved will be returned or the parent trying to hang on to them will create an international brouhaha that will highlight to the world the lack of protection of rights for international parents here in Japan. Who knows, maybe this will start another process — that of allowing foreigners actually residing within Japan to also regain the simple right of access to their children after a divorce.

    But in reality we think this level of change will take several more generations and a lot more foreigners living in Japan to achieve…
    ENDS

    6 Responses to “Terrie’s Take 469: GOJ to sign Hague Convention on Child Abduction by 2010”

    1. Mark in Yayoi Says:

      “The divorce rate within Japan is about 30%, and for Japanese living overseas (take the US as an example), it is typical of the local population, so more like 50%-60%.”

      Terrie, if you’re reading, do you have a source for this? I was under the impression that international marriages are significantly more lasting than typical domestic marriages, which famously break up half the time.

      I would also argue that Japan’s divorce rate for parents with children is lower than the total figure. Is the recent increase in divorces not due to “teinen rikon”, where a 60+ wife gets tired of having her retired husband around the house all the time? In these families, the kids are already grown.

    2. Adam Says:

      Great News ! I`m not in such process but I think this is something good and will help many foreigners to have their kids back or at least see them. I only hope it won`t end up only on signing convention but actually to follow procedure. As we know Japanese Laws are often “not laws” what I mean is nobody cars even if there is law. As example see careless parents driving with jumping kids in the car, riding mothers with 2 kids on bicycle etc. All these are forbidden by law, but nobody cares, because they know, there is no-one (Police) around.
      Bad news in article is:
      “But in reality we think this level of change will take several more generations and a lot more foreigners living in Japan to achieve…”
      When will this happen when Japanese at least once make quick decision, like a real man ?

    3. HO Says:

      “The subject became especially sensitive when the Japanese were at the peak of their indignation over the North Korean abductions of Japanese citizens several years ago, and were seeking international support. All the while, Japanese law allowed similar types of abductions here.”

      What is so “similar” between North Korean abductions and child custody disputes? I think this linkage is a wrong strategy taken by the support group, and resulted in unnecessary resentment by ordinary Japanese against the group.

      “the couple can be placed under a restraining order not to travel without the other spouse’s consent.”

      I am not sure such restraining is possible under Japanese laws.
      Article 22 of Constitution of Japan
      “Every person shall have freedom to choose and change his residence and to choose his occupation to the extent that it does not interfere with the public welfare.”
      Let us suppose that a Japanese citizen marries with an American citizen in the US, has a child, gets divorced, and gets the custody of the child. Since the Japanese citizen does not have a US citizenship, and his/her visa status is unstable due to the divorce, s/he may well think it is a good idea to move to Japan where both s/he and the child have citizenship. Such relocation is justifiable for starting a new life, and I do not think it fair to call it “abduction”.

      “Once in Japan, the jurisdiction suddenly falls to the Japanese courts”

      The Hague Convention also says the courts of the country where the child is (in this case, Japan) have the jurisdiction as to return of the child. See Article 13 of the Convention.

      “The courts’ opinion here is that kids need a stable environment, and the act of being the only guardian for a period of time, even if that guardian was in hiding, qualifies for this.”

      Let us see the 2nd para of the article 12 of the Convention.
      “The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.”
      I do not think the reasoning by Japanese courts is not far from the Convention.

      “The reason is quite simply that Japan doesn’t have a mechanism for properly enforcing civil suit judgments, and typically a breach of an order in a civil suit does not result in the offender being subject to a subsequent criminal suit.”

      The above is true, but the Hague Convention does not address this point.

      “Thus, the Hague Convention on child abduction provides a mechanism whereby if children are illegally removed from their country of habitual residence, they must be returned, and the jurisdiction for subsequent court decisions is taken out of the hands of the Japanese courts.”

      Wrong. The Hague Convention says to the contrary.

      “allowing foreigners actually residing within Japan to also regain the simple right of access to their children after a divorce.”

      Yes, this is what the support group should do, rather than bring in North Korea issue or file criminal charges against its members’ ex-spouses.

    4. Jib Halyard Says:

      This is good news indeed — if it actually occurs.
      Hopefully, we will not see a repeat of Japan’s agreement with several Canadian provinces to recognise their drivers’ licences. For the first few years that agreement was in force, the Japanese licensing authorities simply pretended it did not exist, and made Canadian license holders go through the (expensive) driver’s lessons and tests of a beginning driver. Only after years of pressure from the Canadian federation of traffic administrators did they finally live up to their end of the deal, in 2003 iirc, and allow canadians to swap their licences, as japanese in canada were doing already (although all sorts of extra little catches and caveats are applied on this side of the pacific).
      so i will believe the japanese govt’s good intentions when i finally read about an abduction case actually being resolved.

    5. Ziggy Stardust Says:

      September 29, 2007 – The worst day in my life, I can home to a missing child and wife. My wife and I were having problems but, I never thought she would get up ran. However, now I understand why. Although I am still legally married and a divorce is pending and in the process of negotiation and I have done nothing wrong; I am treated like the villian…It sucks, I can’t see my child or even talk to my child. Any advise? please help…

    6. Gary Richards Says:

      In response to the comments submitted by HO, I agree that limited benefits may be achieved by the parents left behind in these situations. I know this to be true because I am a left-behind parent. My ex-wife, a Japanese national, abducted our daughter from California in 2005 following our marriage, the birth of our child, and divorce; all of which occurred on US soil.

      Recognizing the odds against repatriating the child, I moved to Japan roughly nine months after the abduction, found a job, and began the process of learning the language and assimilating to life in Japan because I knew if the Hague Convention was ever signed, the Japanese courts would still take a prejudicial view against past child abductions and point out that the child had become adapted to its new environment. However, if the law is overturned, I can effectively argue for return of the child and point out that there is a common language and will continue to be a common local environment where the abducted child can be transferred to without undergoing undue trauma.

      Unfortunately, most people do not have the wherewithal to drop everything and begin a new life in Japan. For most parents left behind, Japan’s ratification of the Hague Convention most likely will not result in the return of their children; neither do I see it having any effect on divorces and child custody battles involving foreign nationals who were married and divorced in Japan. The only people who will benefit from Japan’s ratification of the Hague Convention are those who experience my situation in the future. In these instances where an abduction following a marriage, birth and divorce that all occurred in a foreign country under the legal authority of a foreign government; the Japan courts will have no jurisdiction to rule as an authority on the best interests of the abducted child. In fact, in these situations Japan’s previous argument that the child is settled in its new environment will work against the abducting parent, who has taken the child from its settled environment.

      As for the difference between North Korea and Japan, foreign governments make little distinction between foreign governments who commit unlawful acts and those who knowingly harbor the fugitives. Japan would never be considering signing the Hague Convention were it not for the North Korea abductions. Former Prime Minister Abe made it clear how politically powerful this issue was by being swept into office ahead of many of his fellow, more-seasoned, LDP party members based on the public popularity he achieved from this singular issue. The current Prime Minister Fukuoda, with his popularity at record lows in the public opinion polls, is desperate for something that can improve his public image before mandatory elections are held next year.

      When Fukuoda met US President George Bush last year during his first official visit as a Head of State, he brought with him the mother of one of the North Korea kidnap victims in an attempt to convince Bush to maintain hard-line diplomatic relations with North Korea. Bush did not say anything publicly, but privately foreign governments have already started informing Japanese leaders that Japan must join the rest of the world and sign the Hague Convention before any pressure will be applied against North Korea with respect to the abducted Japanese citizens. As mentioned earlier, foreign governments make little distinction between foreign governments who commit unlawful acts and those who knowingly harbor the fugitives

      To date, Canada is the only country whose leader has publicly reprimanded Japan for harboring its citizens who have abducted children of foreign nationality from foreign soil.

      Historically, the leadership of Japan has been very slow to make peace and align itself with the common social interests of the greater global community; sometimes resulting in disastrous consequences. Let’s hope the Hague Convention is ratified and the child abduction issue is resolved before it gets out of hand and causes serious diplomatic problems between Japan and the rest of the world.

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