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Hi Blog. An article came out today in the Japan Times that is so good it merits breaking holiday silence, from legal scholar Colin P.A. Jones on legal reforms to the post-divorce child custody system. It mentions something we’ve talked about on Debito.org before: How the signing of the Hague Convention on Child Abductions will probably be ineffectual, as both the legislative and judicial branches find ways to exceptionalize Japan from it, maintaining Japan’s status as a safe haven for international abductions. Excerpted below, please go to the JT site and read the whole thing. Now for me it’s back outside and on the bike. Arudou Debito
The Japan Times
Upcoming legal reforms: a plus for children or plus ca change?
Domestic revisions designed to ease fears over Hague Convention could actually encourage parental abduction
Those focused on the government’s stumbling efforts to protect the children of Fukushima from radioactive contamination may find this hard to believe, but Japanese family law just got more child-friendly — maybe. If Japan finally signs the Hague Convention on child abduction, as it appears it will, it could become even more so. There is a big “maybe” here too, so it remains to be seen whether these two steps taken by the Diet will steer the country away from its status as a black hole for parental abduction or leave it treading the same sorry path.
On May 27 a law was passed amending a number of provisions in the Civil Code relating to children and their parents. First, Article 766 of the code was revised to require parents seeking a cooperative (i.e., nonlitigated) divorce to decide upon visitation, child support payments and other matters relevant to their children’s upbringing after divorce. Furthermore, the new provision says that the welfare of the children must be the primary consideration when these matters are decided….
Another significant change in the law will make it possible for public authorities to suspend for up to two years the parental authority of those who abuse or neglect their children. The supposed inability of child welfare officials to act aggressively has been cited in recent high-profile child abuse cases. Under prior law the termination of parental authority was permanent, rendering it a very blunt instrument.
Of course, any change that clarifies the principles underlying the laws relating to children in Japan is certainly a welcome step forward. Yet at the same time, I believe that the character of these amendments reflects a continuation of what I see as the core problem with Japanese family law.
Both the amendments described above approach the problem by addressing deficiencies in Japanese parents. Other amendments to the Civil Code making it clear that even nondivorcing parents must exercise their parental rights and responsibilities for the benefit of their childrenfurther reinforce this impression…
Meanwhile, on the Hague Convention front, a legislative committee appears to be considering domestic legislation that will ensure no abducted child ever has to be returned after Japan signs it. A basic premise of the convention is that judicial determinations about children after their parents separate should be made in the country where the children have been living. Children who are unilaterally removed to another country should thus promptly be located and returned to their country of habitual residence.
The convention does contain an exception that says a child does not have to be returned if there is a “grave risk” that doing so “would expose the child to physical or psychological harm or otherwise place him or her in an intolerable situation.” The Japanese government appears poised to drive truckloads of abducted children through this very limited exception.
Based on current proposals that I have seen, Japanese authorities may be allowed to refuse to return a child if (a) either the child or taking parent have been subject to abuse (including “violent words”), (b) the taking parent cannot return to the child’s home country because of fear of criminal prosecution upon return, (c) the taking parent is the primary caregiver but cannot raise the child in the home country for financial or other reasons, or (d) the helpfully vague “there are other circumstances” making return potentially harmful to the child.
This may seem well-intentioned, but it is important to understand that the Hague Convention is not about “keeping” children in their home countries. It is about parents respecting the law of the countries in which their children live before they unilaterally change their residence…
Full article at http://search.japantimes.co.jp/cgi-bin/fl20110809zg.html
|Act now: Rep. Chris Smith (center), standing with relatives of American children abducted to Japan, urges swift action by Washington on the issue last September on Capitol Hill. AP PHOTO|
Hague campaigners doubt Japan’s sincerity
LONDON — Campaigners in Britain welcome Japan’s plans to sign up for a treaty on settling cross-border child custody disputes but feel new procedures are needed to effectively implement the agreement.
Rest at http://search.japantimes.co.jp/cgi-bin/nn20110809a4.html
8 comments on “Excellent Japan Times article on GOJ reforms (and probable non-reforms) of child custody system post-divorce”
typical BS on the part of the J-Gov.
More horse-s*** from the J-gov to make sure no child is ever returned.. Japan only wants to sign their own version of the treaty, thus making it useless for all other countries who are following it.
The Hague Convention already takes into consideration what “worries” the politicians, i.e fear of violence. But I especially like this one with respect to refusing a return “(b) the taking parent cannot return to the child’s home country because of fear of criminal prosecution upon return.” I can certainly think of a few examples where this would be applied (Murray Woods’ situation anyone?) It’s not about protecting the parent that did the kidnapping, its about protecting the child!
This provision, if passed/approved, is 100% condoning abduction. It basically says.. We recognize what you did in the other country is illegal by abducting your child to Japan and you will be prosecuted if you return there so because of that, the kid has to stay here.
The J-gov actually acknowledges the criminal nature of what happened.. but chooses to do nothing about it.
Just remember, the Hague Convention says nothing about returning the Abducting Parent to the child’s home country.. only the child
The violent words proviso provides not only an escape clause (or an “abduction OK” certificate) but also smacks of Japanese racism- the meta message being that the woman wouldn’t have brought the child home if there handn’t been something wrong iwth the gajin… the heated arguments they had = gaijin are violent and have different customs, so it’s probably better off that the child be brought by by proper Japanese people in Japan’s nice safety society (bar the odd catastrophic earthquake, network of crappy old nuclear reactors with care-less and corrupt oligopoly utility-government non-regulation and a culture of rampant media child exploitation (viz crap like AKB48 or whatever…)
Congressman Smith’s group is attempting to work out a side agreement between America and Japan, to cover the children who will have been abducted before Japan signs the Hague treaty.
This is important, because there are some 120-170 children in this category–all American citizens.
Close-mindedness toward culture of others renders Japan’s attitude semi-sincere at best. Signing the Hague Convention doesn’t resolve the issue at all– due to their willful blindness to pre-existing problems with Japan’s legal system—1) an outmoded family registration law; 2) a race/gender based family court system; 3) an absence of fairness doctrine; 4) an utterly lopsided ruling (i.e.,significant restrictions on visitation rights); and 5) problematic disregard of judicial ethics(i.e., voiding any court rulings outside Japan without a thorough review). Here are a couple of JT articles from Japan Times. The author’s story well illustrates the corruptive mechanics of family law that justifies an unethical practice of child abduction in Japan.
1. “Battling a broken system” by Richard Cory Tuesday, Sept. 21, 2010
2. “Behind the facade of family law” by Richard Cory Tuesday, Sept. 28, 2010
So basically Japan will fix the tatemae (we are a signatory of the Hague Convention), but leave in place the honne (continued sanctioning of child abductions by J-parents).
Following up what Abc said above, I stumbled across this story of a Spanish man and his somewhat culturally traumatized J-wife who abducted their child. Then her father accidentally caused the child to have third degree burns. THEN of course they wanted the gaijin to come and help, as he was a doctor. He ended up selling his house and health clinic in Spain to come to Tokyo to work at, and live in, a restaurant!Great. Theres a moral in this sad story somewhere:
Debito, you might want to re-post this somewhere more (in) appropriate, or even start a new thread.
About above, “A Japanese woman relinquished custody of her 2-year-son, Subaru, to his Spanish father in Tokyo. Ai, along with her parents, signed papers February 2011 giving sole guardianship to her husband, Javier Garcia Echevarria.
In the document, they (Ai and her parents) also admitted they had libeled Echevarria, accusing him of physically and mentally abusing Ai and Subaru.
It’s rare for a foreigner, especially a male, to receive guardianship. However, this is an unusual story.’
At least this time the foreigner won, sort of. And the parents admitted they libelled him. Wonders never cease…