UPDATES ON TWITTER: arudoudebito
DEBITO.ORG PODCASTS on iTunes, subscribe free
Hi Blog. In light of Chris Savoie’s U.S. court victory the other day, where his ex-wife was ruled guilty of inter alia false imprisonment of their kids in Japan, let’s look at the bigger picture — whether or not there will be official measures taken to stop this sort of thing happening again. One means is the Hague Convention on Child Abductions, to which Japan is not a signatory, and it shows.
Japan has once again made intimations (see JT article below) that it has plans to not only consider but even perhaps join the Convention, with a schedule for when it will perhaps join being announced this month.
This should be good news, but I’m not hopeful. Japan made similar intimations about joining this Convention more than three years ago (see Asahi article below that), so has clearly been less than keen. Moreover, during the domestic debates since then, lots of other intimations have been made that Japan will sign but will then create domestic laws and other loopholes so it doesn’t have to follow it.
This is within character. Japan has done precisely the same thing with other international agreements, including the UN Convention on the Elimination of Racial Discrimination (signed by Japan all the way back in 1995), which has similarly been exceptionalized to the point where we still have no national law in Japan’s criminal code outlawing or forbidding racial discrimination and hate speech.
The point is, I’m not hopeful. And I’ll say it again: Nobody, Japanese or NJ, should get married to a Japanese and have children under the current system in Japan. Divorce in Japan generally means one parent loses the kids. And I believe that will continue regardless of Japan’s agreeing to the Hague. Arudou Debito
ADDENDUM MAY 27: One clarification that is unclear upon rereading this post: I believe that Japan SHOULD sign the Hague. I have never argued that it shouldn’t. It is a step in the right direction. I am just questioning whether it will mean much in practice and enforcement, given the GOJ’s record regarding other treaties, and advising against getting one’s hopes up for a solution to the present situation. AD
Plan to join Hague pact on custody due in May
Thursday, April 28, 2011
The government will announce in May a plan to join the Hague Convention, which deals with cross-border child custody rows, official sources said Wednesday.
The Democratic Party of Japan-led government is expected to instruct the Justice and Foreign ministries to develop the necessary bills, with the aim of approving the plan to join the 1980 Hague Convention on the Civil Aspects of International Child Abduction during a regular Diet session next year.
Japan has been under international pressure to join the child custody pact, which is designed to help resolve cases in which foreign parents are prevented from seeing their children in Japan after their marriages with Japanese nationals fail.
If Tokyo remains out of the pact, it could mar international confidence in Japan, the sources said. Prime Minister Naoto Kan is expected to relay Japan’s policy at a Group of Eight summit in late May in Deauville, France.
The Hague Convention sets procedures for resolving child custody cases in failed international marriages. As Japan has yet to join, non-Japanese cannot see their children if their Japanese spouse takes them to Japan from the country where the family has been residing.
There has been heated debate over whether to join the treaty, as it is customary for mothers to take sole care of children after divorces and it is not unusual for kids to stop seeing their fathers after their parents break up. Critics have raised concerns over joining the pact, saying it could endanger Japanese parents and kids who have fled abusive relationships.
Japan to Sign Hague Child Abduction Convention
BY MIAKO ICHIKAWA
THE ASAHI SHIMBUN
Japan will sign a treaty obliging the government to return to the rightful parent children of broken international marriages who are wrongfully taken and kept in Japan, sources said Friday.
The Justice Ministry will begin work to review current laws with an eye on meeting requirements under the 1980 Hague Convention on Civil Aspects of International Child Abduction, the sources said. The government plans to conclude the treaty as early as in 2010.
The decision was reached amid criticism against Japan over unauthorized transfer and retention cases involving children. The governments of Canada and the United States have raised the issue with Japan and cited a number of incidents involving their nationals, blasting such acts as tantamount to abductions.
In one case, a Japanese woman who divorced her Canadian husband took their children to Japan for what she said would be a short visit to let the kids see an ailing grandparent. But the woman and her children never returned to Canada.
Once parents return to their home countries with their children, their former spouses are often unable to find their children. In Japan, court rulings and custody orders issued in foreign countries are not recognized.
Under the convention, signatory parties are obliged to set up a “central authority” within their government. The authority works two ways.
It can demand other governments return children unlawfully transferred and retained. But it is also obliged to find the location within its own country of a child unlawfully taken and retained, take measures to prevent the child from being moved out of the country, and support legal procedures to return the child to the rightful parent.
Sources said the Japanese government will likely set up a central authority within the Justice Ministry, which oversees immigration and family registry records. The ministry has decided to work on a new law that will detail the procedures for the children’s return.
In 2006, there were about 44,700 marriages between Japanese and foreign nationals in Japan, about 1.5 times the number in 1996. Divorces involving such couples more than doubled from about 8,000 in 1996 to 17,000 in 2006.(IHT/Asahi: May 10,2008)
13 comments on “GOJ says it will schedule joining Hague Convention on Child Abductions this month. Wowee. Why I doubt that’ll mean anything even if signed.”
Not that I doubt your conclusion regarding the actual domestic laws once the treaty is signed, but the 2008 article you referenced pretty clearly says they were looking to sign “as early as in 2010”. It’s mid 2011, so pretty much par for the course for any government as far as keeping to deadlines. But it’s not the case that this is a new round of “we’re planning to sign”.
— Can’t say much for sure, to be sure, but we definitely can’t say that last sentence for sure.
“Divorce in Japan generally means one parent loses the kids. And I believe that will continue regardless of Japan’s agreeing to the Hague.”
Debito, I think you should expand upon this closing statement because I don’t see the connection between domestic divorce in Japan and the Hague convention on international child abduction; Perhaps we are viewing this statement from different frames of reference. Are you suggesting that this could be an opportunity for Japan to reevaluate family laws in general?
— Yes. I have been saying this for quite a while now. Read up.
She wasn’t found guilty, this was not a criminal court, she was given a civil penalty. The Japanese courts will not enforce a US judgement for punitive damages and are unlikely to enforce the non-punitive damages since they are excessive and she was found liable in absentia (and she faced criminal prosecution if she returned to defend herself). The only “real” option is for Savoie’s lawyers to take the case to Japan now and try to get a judgement there – and we all know that even if they get a judgement that with Japan’s weak civil laws they are unlikely to be able to collect anything.
And even if the Japanese Government does sign the Hague Convention my understanding is that it won’t matter to the Savoie case since by the Hague Convention the children’s “habitual residence” would be Japan.
I’m so glad you brought this up. The Hague Convention is just an outer layer that covers the surface of common interests in a broken inter-racial marital relationship. What’s more challenging is the legal constraints of the Japanese Family Law. To me, it’s getting more pessimistic to expect the government to revise the 1946 Constitution than sign off the treaty. The family law is +100 year old dinosaur–just like the US Constitutions in the 19th century (!). It’s really damning to non-Japanese (and even some naturalized Japanese citizens–just like you) to see the legal system revolving around the period of Dred Scott and Plessy v. Ferguson until today.
A big loophole for people who have broken the law, how nice and unsurprising…
“However, the legislation will also contain provisions to reject requests to return a child if there is danger the parent seeking the return of the child could physically abuse the child or other parent, or if the parent who has taken the child could face criminal prosecution in the other parent’s nation.”
“Government drafting bill on child abduction treaty”, Asahi Shinbun, May 15, 2011
The government is drafting legislation that would establish a legal structure to allow Japan to sign the 1980 Hague Convention on the Civil Aspects of International Child Abduction, sources said.
Prime Minister Naoto Kan received strong pressure from Western governments to have Japan sign the treaty, which enables children of broken international marriages who are wrongfully taken and kept in Japan to be returned to their previous country of residence.
A major component of the draft bill will set up a new central authority responsible for locating children who have been wrongfully brought to Japan.
Sources said the Kan Cabinet is expected to approve the outline of draft legislation soon.
The central authority would handle all administrative matters related to implementing the Hague Convention, including accepting requests from parents in other nations seeking the return of their children as well as investigating the whereabouts of the children in Japan.
The central authority would be given powers to seek relevant information and cooperation from local governments as well as central government agencies.
The draft legislation will also spell out procedures to order a parent who has wrongful custody of a child to return the child to the parent with legal custody.
However, the legislation will also contain provisions to reject requests to return a child if there is danger the parent seeking the return of the child could physically abuse the child or other parent, or if the parent who has taken the child could face criminal prosecution in the other parent’s nation.
In 2008, about 37,000 Japanese were married to foreign nationals, about eight times more than those who did so 40 years ago. Also in 2008, about 19,000 Japanese divorced their foreign spouses.
Notice the weak “voluntary return” part. Why would a parent who has abducted their child from another country give the child back voluntarily? And of course there is a big loophole stipulated for those that are facing criminal charges. Quite pathetic “effort” on the Japanese governments part.
“Cabinet endorses plan for Japan to join int’l child custody pact
Friday 20th May, 09:15 AM JST
The cabinet of Prime Minister Naoto Kan formally approved on Friday Japan’s policy of joining an international treaty that sets procedures for settling cross-border child custody disputes, after coming under foreign pressure to accede to the pact for years.
With the Cabinet approval, Japan launched preparations for signing the 1980 Hague Convention on the Civil Aspects of International Child Abduction by crafting domestic legislation to endorse the pact.
The outline of bills expected to be submitted to the Diet by the end of this year for concluding the treaty stipulates that the Japanese Foreign Ministry will be designated as the central authority to locate children wrongfully removed or retained by one parent and secure the voluntary return of them.
The domestic legislation would also indicate that children will not have to be returned when the parent has fled from an abusive spouse or could face criminal prosecution in his or her country of habitual residence.
An advisory panel to Justice Minister Satsuki Eda will start discussing in early June necessary judicial procedures for Japan to return children abducted by their parents under the Hague Convention based on the outline of the bills, government officials said.
Japan has been urged by European countries and the United States to join at an early date the treaty to deal with cross-border child custody disputes as a result of failed international marriages.”
Voluntary return is one of the functions of a central authority defined in article 7 of the convention.
a) to discover the whereabouts of a child who has been wrongfully removed or retained;
c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
Compulsory return is a function of the court.
#6 In many cases, US courts order return of a child to a foreign country on condition that the criminal charges against the abductor is dropped, which is called “undertaking”.
Read Paragraph 090.
Let’s watch the loopholes get sewn into the planned ratification of the Hague, as predicted:
Bills’ timing unclear, given political, public opposition
Process for signing Hague treaty begins
The Japan Times Friday, May 20, 2011
By MASAMI ITO Staff writer
The government officially decided Friday to prepare to ratify an international treaty that prevents cross-border parental child abductions.
The decision came just in time for Prime Minister Naoto Kan to announce it at next week’s Group of Eight summit meeting in France.
But since there is strong opposition to the pact in both the ruling and opposition camps, as well as from the public, it remains unclear how soon the Diet can actually agree to conclude the treaty and enact related domestic laws.
At a news conference Friday, Chief Cabinet Secretary Yukio Edano explained that Japan decided to join the 1980 Hague Convention on Civil Aspects of International Child Abduction from the viewpoint of “children’s welfare.”
“When (a marriage) crosses borders, the situation becomes increasingly difficult and the Hague Treaty is a certain standard or rule in the international community,” Edano said. “I believe it is desirable for Japan to be consistent with this standard amid deepening ties on various levels with the international society.”
To ratify the convention, the government will draft legislation and prepare to submit to the next extraordinary Diet session.
The bills will stipulate the Foreign Ministry as the central authority for overseeing cases related to the Hague Treaty, including locating abducted children, taking measures to prevent child abuse and advising parents on the voluntary return of children.
A new judicial procedure will also be included to issue court orders for the child’s return to his or her “habitual residence” and specify that returns will be denied in cases of child or spousal abuse.
The bills will state that the return of a child can be denied if “there is grave danger that the child will be placed in an intolerable situation” or “the child will suffer physical or mental damage.”
Rest at http://search.japantimes.co.jp/cgi-bin/nn20110520x1.html
I am curious what is meant by “habitual residence” is it where the child was born? Where they were living when they were abducted? It is my understanding that in most cases children children quite often have dual citizenship until they are adults?
Also I would love to know who decides the following:
” the return of a child can be denied if “there is grave danger that the child will be placed in an intolerable situation” or “the child will suffer physical or mental damage.”
I think I am probably not alone thinking that this a ‘katachi dake’ move by the Japanese government and simply a move to save face in France this week.
Darlene and everyone else thinking this is just a ‘katachi dake’ move: Have you actually read the Hague Convention text? Actually done a bit of research on the issue? You look rather silly complaining about Japan just going through the motions when they’re essentially adopting the actual Hague Convention text:
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
Believe it or not, there are cases of domestic abuse. There are cases where mothers have returned to Japan to get out of very bad domestic situations (I personally know of two cases – one in the US, one in Hong Kong). The text is in the Hague Convention for a reason.
— Agreed. Now find us a definition of “domestic abuse” in Japanese. A definition that is itself not easily abusable.
Debito, I respectfully submit that you’re missing the point.
If you want to complain about domestic abuse being a convenient loophole, you may be correct – but that has nothing to do with Japan, and certainly has nothing to do the Japanese government only ‘going through the motions’ (katachi dake). The thing is, any claim of domestic abuse is murky at best even in the US! Surely you’ve read stories about cops in the US arriving at a scene of some domestic disturbance, suspecting domestic abuse, but not having enough evidence or authority to do anything about it?
Short of photographic evidence, it is extremely hard to prove abuse. The Hague Convention includes it anyway, probably because otherwise, it could be used to force the return of children back to very bad situations, even in clear-cut cases of abuse.
That the clause might be used as a loophople is beside the point – there are plenty of issues where we could complain that the Japanese government isn’t doing enough – this isn’t one of them.