Hanley- International Child Abduction in Japan PDF

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Hanley: International Child Abduction in Japan • Japan ratified the Hague Convention, effective 2014. Adoption of the Convention means that, upon the request of an overseas aggrieved parent, the Japanese Foreign Ministry will be obligated to locate the abducted child. Parental rights, such as child custody, will be determined by the judicial authority of the country where the family lived in with the child prior to their divorce. • Tradition: sole custody is usually given to one parent and in most cases, to the child's mother → question whether Japanese authorities are truly committed to fulfilling its obligations • parental child abductors invoke domestic violence article, international standard is higher than the Japanese standard → much easier to meet than the „grave risk“ standard of the Convention

I.

Overview of Japanese Family Law

• “Kyogi rikon” permits couples to negotiate the terms of their devorce, including issues of child custody and visitation, without any judicial oversight or guidance. • Japanese familu law doesn't recognize joint custody, non-custodial parents must relinquish their rights to their children upon divorce.

A. Child Custody Under Japanese Law • After divorce, the parents (normally husbands) who has no kangoken would lose the day to day interactios with their children, and may be completely cut out of children’s life. • Japanese judges have a history of discriminating against non-Japanese parents with Japanese spouses almost always getting sole custody over their foreign counterpart. Societal belief that it is better for the child to be raised in Japan with a Japanese parent than in a foreign place.

B. Visitation Under Japanese Law Although many studies has shown the importance of the continued interaction of both parents with the child upon divorce, sole custody is still considered better for the welfare of the child because it provided stability. Moreover, there is no right to visitation for a non-custodial parent under japanese law.

C. Nominal Role of Japanese Courts in Family Matters Japanese courts serve primarily as peacemakers to provide support and encouragement for the participants to reach an agreement, and show reluctance toward family matters.

D. Child Abduction Under the Japanese Criminal Code • In Japan, most parental kidnappings cases are not convicted of an abduction, even it does include imposing force or enticement during the actions.

II.

Applicable International Law

A. Convention on the Rights of the Child (CRC) • attempts to protect children from discrimination, neglect and abuse in terms of their economic, political, civil, social and cultural rights • Japan has not fulfilled its obligations under the CRC • Despite the CRC allows children to maintain family relations and have direct contact with both parents, the family law system in japan fails to secure regular visits from non-custodial parents.

B. Hague Convention on the Civil Aspects of International Child Abduction  Purpose of the Hague Convention: „to secure the prompt return of children wrongfully removed to or retained in any contracting state and to ensure that rights of custody and of access under the law of one contracting state are effectively respected in the other contracting states.“ 1. safeguard the immediate return of children 2. discover the whereabouts of a child 3. prevent further harm to the child 4. secure voluntary return of the child  Japanese domestic law is in direct conflict with the Hague Convention, which provides that a state is not obligated to return a child if 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.(the definition of grave risk is expanded greatly by Japan so that they may not be in compliance with the convention.)

1) What kind of cases are in the focus when people talk about "child abduction" in this context?

They refer specifically to international parental child abduction. This is, couples living abroad and in which one of the parties is Japanese. After a divorce, the Japanese parent (usually the mother) flees to Japan with the children. There they are outside the jurisdictional reach of international courts, as Japan authorities refuse to honor a foreign court order to these cases.

2) How does the Hague Convention on Child Abductions address these problems? The purpose of the Convention is to secure the prompt return of children wrongfully removed or retained in any contracting state. As wells as to ensure that rights of custody and access, are effectively respected in the other Contracting States. Article 7 specifies the measures that must be taken by State Parties: I.

Safeguard the immediate return of children

II.

Discover whereabouts of a child

III. Prevent further harm to the child IV.

Secure the voluntary return of the child or reach an amicable resolution of the issue

3) Why is Hanley of the opinion that many problems remain with abductions to Japan even after Japan has ratified the Convention? To what extent is the newspaper article by Scott confirming this view. Because he believes until Japan takes steps to dismantle its antiquated family law system, in particular, the practice of kangoken, granting sole custody to one parent with the near total exclusion of the other and the traditional bias shown by courts to Japanese spouses, Japan will not be in compliance with the mandate of the Hague Convention. Within his research he found there are still cases in which the “left behind parent” hasn’t been allowed to see the child since the abduction. Even more, a representative of the Children’s Rights Council of Japan affirmed that these matters in Japan shouldn’t be regarded with optimism.

The parents, whose ex spouse took away the children back to Japan, are still suffering even after Japan ratified the convention. Absent a significant change of policy erects a great barrier for the enforcement of return order. The legal limits on how to forcefully transfer possession of a child without harming the child physically or emotionally will always apply and the taking parents will continue to be able to effectively use the children as human shields against the judicial process....