International parental abduction in Japan
Encyclopedia
International child abduction in Japan refers to the illegal international abduction
or removal of children from their country of habitual residence by an acquaintance or family member to Japan or their retention in Japan in contravention to the law of another country. Most cases involve a Japanese mother taking her children to Japan in defiance of visitation or joint custody orders issued by Western courts. The issue is a growing problem as the number of international marriage
s increases. Barring exceptional circumstances, the effects of child abduction are generally detrimental to the welfare of children
. Parental abduction often has a particularly devastating effect on parents who may never see their children again.
Japan, together with most Asian and African countries, is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction
, which obliges signatories to promptly return abducted children to their country of habitual residence. Critics of the Japanese legal system say this refusal has the practical effect of facilitating international child abduction. The issue has become a cause for significant concern to signatory nations, the majority of which are Western countries. The main impediment to Japan's signing the convention is that it would require an overhaul of the Japanese legal system. Japanese family law considers issues of divorce custody, child support or alimony as predominantly private matters. Consequently, Japan has no enforcement mechanism to enforce foreign custody rulings or recommendations made by its own domestic courts. Furthermore, Japan does not recognise joint parental authority or shared "residence" after divorce. As a signatory to the United Nations Convention on the Rights of the Child, however, Japan is supposed to recognize the right of a child to obtain non-custodial parent visitation
. However, the Supreme Court of Japan has recently ruled that this does not amount to the right of non-custodial parents to see their children (it has ruled that state-enforced visitation is the right of neither parent nor children). This ruling, in effect, makes visitation without the cooperation of the custody-holding parent a practical impossibility.
, a Geneva-based International NGO which specializes in international parental abduction, during the 1970s indicated that 79 sets of parents were from different birth countries and cultural difference between the partners was one of the main elements in the cases. Moreover, the majority (80 cases) of abductor were fathers. In these cases three reasons were often given as the reason for the abduction:
By 1990, of the 1,080 applications for the Hague Convention reveal, 70% of abductors were women and the most common reason for these abduction were claims, substantiated or not, that they were fleeing from domestic violence. International Social Services lists following motives in their report for parental abduction.
the Child Abduction Act 1984 provides that the offence of abduction of a child by a parent is committed only if the child is taken out of the U.K. for a period exceeding one month.
In the case of Japan, CNN quoted an unnamed official in the U.S. Embassy in Tokyo
who stated, "Our two nations approach divorce and child-rearing differently. Parental child abduction is not considered a crime in Japan." However, this statement is contradicted by several Japanese news media sources which report arrests involving parental abduction in Japan. The Supreme Court of Japan
categorically ruled that a parental abduction in which force and coercion is used to remove child constitutes the felony
of kidnapping of a minor irrespective of person's custodial right. The case concerned a couple who were separated but not divorced so the abducting father held joint custody. Therefore, while civil liability (or criminal liability in some countries) for parental abduction arise out of custodial interference of a parent and is not legally defined as kidnapping, in Japan, parental abduction is a kidnapping if it disrupts a child's residence or relationship with the primary caregiver. At the same time Japanese family courts have no enforcement mechanism in civil matters so they strongly encourage parents to engage in mediation in order to agree to custody arrangements on their own and rarely intervene in matters such as visitation and child support which are seen as private. Furthermore, it is rare for a nation to extradite one of its own citizens to another country for alleged parental abduction. On the other hand, a foreign national father, trying to re-abduct his child in Japan by force, may face arrest and possible criminal prosecution irrespective of his custodial status in the child's home country. Moreover, a foreign father trying to abduct children by force to another country would face the extra charge of "kidnapping for the purpose of transporting the kidnapped person to a foreign country" (Article 226(1) of the Penal Code), which carries the penalty of imprisonment with labor for a limited period of not less than two years. The law, which was originally designed as an extra penalty for the kidnapping of a minor for sexual slavery in China, is now used for preventing forced abduction from Japan by a parent. This provision of the Penal Code was amended in 2005 so that it covers kidnapping and abduction from any country, not just Japan. This means that it constitutes a criminal offence under Japanese law for a Japanese national to abduct his or her own child by force in another country and bring the child to Japan, and in such cases Japanese police and prosecutors could initiate criminal proceedings. However, this provision likely will not apply to cases where a Japanese mother who is the primary caregiver brings her children back to Japan in defiance of the custodial ruling of a foreign court, as this would not likely be seen to involve coercion or force against the child.
The United States Department of State
website states that,
According to the US Embassy, between 2005 and 2009 the number of child abduction cases of children from Australia, Canada, France, the United Kingdom, and the United States has quadrupled.
, there were at least thirteen cases of unresolved parental abduction to Japan. Australia
, unlike other nations, does not maintain a national database of parental abduction cases. Moreover, media restrictions on family law and juvenile matters mean that many cases go unreported.
related to Japan.
newspaper reported that, for 2008 alone, there are 336 cases and estimated 470 children were abducted from the UK and taken abroad illegally, an increase of 20% from 2005 figures. Pakistan (30 cases) top the list followed by the US (23), Ireland (22) and Spain (21). Other abduction hotspots included Australia, France and Egypt. The cases of international parental abduction are not well published in U.K. due to reporting restrictions that apply to any cases involving the welfare of minors. However, the Guardian provided anecdotal evidence. A reporter attended a day in London family court. Eight out of 14 cases heard involved child abduction, which may indicate that the problem is widespread. 40% (134 out of the 336) of international abductions in 2008 involve countries that are not signatories to the Hague Convention. These include Bangladesh, Russia, Iraq and Nigeria. Moreover, the problem is expected to worsen as immigration and international marriage become common. Moreover, The Independent
newspaper cites the Reunite International Child Abduction Centre which claims that 43% of parental abductions involve ethnic minority children taken abroad and often forced to marry. Moreover, cultural complicity, collusion and shame mean that many cases go unreported.
(316), Canada
(57), the United Kingdom (42), Japan
(37), India
(35), Germany
(34), the Dominican Republic
(25), Brazil
(21), Australia (18), and Colombia
(17), which together represent 602 cases out of the total of 776. Japan and India are the only non-signatory countries in this group. However, there has been a significant year by year increase. In 2009, there were 73 outstanding cases involving 104 children who have been abducted to or retained in Japan by parents. An additional 29 cases involve American parties in Japan with one parent denied access to his or her child. However, according to December 2009 figures, there appeared to be 79 child abduction cases involving 100 children. A State Department official stated in 2008 that no child has ever been returned to the US as a result of diplomatic or legal means Furthermore, embassy officials were only aware of three cases where children have returned to America, two involving reconciliation of parents and one in which a 15-year-old escaped to the American embassy.
between a Japanese
and a non-Japanese. In 2007, 40,272 international marriages between a Japanese national and foreigner occurred, representing 5.6% of total marriages (719,822). In 2000, the number was 36,263, and in 1980 the number was only 7,261. This is despite the fact that the foreigners represent only about 1.22% of the total population in Japan. An estimated 20,000 children are born to Japanese-foreign couples every year. The vast majority of these marriages are with Chinese
and Koreans, many of whom are second- or third-generation permanent residents of Japan, also known as zainichi
, and other neighboring nations such as the Philippines
and Thailand
. However, the cases of a Japanese woman marrying a foreign national husband, marriage to a U.S. national
is high (1,485), ranking second after Korean nationals
(2,209), followed by Chinese nationals
(1,016).
At the same time, the number of international divorces in Japan is also increasing from 7,716 in 1992 to 18,220 in 2007. International divorces represent 7.15% of the total 254,832 divorces in Japan in 2007. Moreover, according to a 2007 figure, 10.53% of people under 20 experience the divorce of their parents. In 1990, the rate was 5.24%. In numerical terms, 245,685 under-20 year olds, had experienced the divorce of their parents, compared to 169,624 in 1990. In July 2008, Thierry Consigny of the Assembly for French Overseas Nationals (AFE) for Japan and North Asia, which has been advocating for right of foreign parents in Japan, further asserted that, according to a government survey, every year 166,000 children are separated from one of their parents in Japan following a divorce or separation, usually definitively. Furthermore 10,000 or more children of dual nationality fall into this situation as well. Foreign parents face an additional obstacle in maintaining access due to their immigration status which may be revoked after a divorce.
While the law in some countries, such as France
or the United States, provide for joint custody in divorce cases involving children, Japanese law does not provide for this arrangement. Jeremy D. Morley, an American lawyer who has handled many abduction cases in Japan, has pointed out that the practice of sharing child custody after a divorce is "alien" to Japanese and not found in Japanese culture or history, which may help to explain its absence from Japanese law. In Japan, when a marriage with children legally dissolves, full parental custody and authority is awarded to only one parent. Moreover, this custody ruling creates complete legal separation of the non-custodial parent from his or her biological children. An academic article discussing the work of Takao Tanase, notable legal scholar of comparative study of American and Japanese legal system, asserts that "the real difference lies in the two cultures' diverging conception of social parenthood, and thus of the identity of the person who holds parental rights: the noncustodial American parent remains a legal parent at least in part because he or she remains a social parent, in aspiration if not reality, while the traditional Japanese view is the opposite." The paper then goes on to describe a Japanese case whereby a father is granted a primary custody of the children after a divorce. A year after the divorce, the father marries another woman. Subsequently, the son from the previous marriage is adopted out without having given any notice to the son's biological mother and, moreover, her subsequent attempt to regain the primary custody of her biological child failed in court. In Japanese law, irrespective of her biological link, her separation from her son was complete at the point of losing the custody. The paper further states that in Japan it is seen as preferable that children make a permanent break with the non-custodial parent because creating a legal "right" for parent would cause conflict damaging to the welfare of the child. The Japan Times states that experts in Japan have been skeptical about the benefits of complete joint custody because the child is tossed back and forth between the parents for their own benefit.http://search.japantimes.co.jp/cgi-bin/nn20100514f1.html
The typical 'deal' in Japan is that, upon divorce, the father pays nothing for the child's support, and he never sees his child. It is noted that the decision by family courts in Japan with regard to both visitation and child support are unenforceable. There are several consequences to this lack of enforcement. At first, the courts strongly prefer that divorcing couples agree to child custody arrangements in mediation. If mediation fails, the court can intervene and has the power to determine which parent shall have parental authority. Article 819 of Japanese Civil Code states that "In the case of judicial divorce, the court shall determine which parent shall have parental authority." The primary custodian, or caregiver, as defined by the Japanese legal system, is the parent who has physical possession of the child at the time the case is initially brought to court in Japan. In other words, the court will likely choose the parent who already has possession. Colin P.A. Jones, a professor at Doshisha Law School, states that parental rights are not recognised in Japanese law, pointing out an academic debate in Japan over whether visitation
was a right of the parent or the child or something else. In regard to visitation/access, the Supreme Court held in 2000 that visitation was a right of neither parent nor child. http://search.japantimes.co.jp/cgi-bin/fl20100202zg.html
Consequently, court-mandated visitation in Japan only occurs with the cooperation of the custodial parent. U.S. Department of State website states that "compliance with Family Court rulings is essentially voluntary, which renders any ruling unenforceable unless both parents agree." Consequently, any attempt to obtain visitation (or child support and/or alimony) through legal enforcement would be futile. If the custodial parent, usually the mother, refuses to cooperate with visitation, the other parent, usually the father, will often refuse to pay child support. According to New York City-based international family lawyer Jeremy D. Morley:
In the 82 signatory countries custody rulings differ by country. While the mother usually gains sole or primary custody, there is an increasing trend in other developed countries to shift to shared parenting
and joint custody
. Enforcement of custody orders is also an issue in those countries that usually award sole or primary custody, as it is in Japan. In the UK, fathers' rights groups have advocated for changes to the Child Support Act including child support, shared parenting and access to children, and lack of enforcement of court orders.
Japan is one of two G8
members, the other being Russia
, and the only G7 nation, to not sign the Hague Convention on Child Abduction, which requires signatory governments to return children to their "habitual residence" when children are illegally removed or retained from that residence in violation of another party's, generally the other parent's, custodial rights. Most of the 82 signatory countries are Western nations
from Europe, North America, South America and Australia while most countries from Africa, Asia and the Middle East are not signatories of the convention. Since this treaty is not retroactive, the present ongoing cases cannot be resolved even if Japan signs on to the Hague convention. Rather, remedies must be sought under Japanese family law to enforce visitation orders.
Within signatory countries, children who were abducted are supposed to be sent back to their "habitual residence" after the abduction takes place. For nations which define such abductions as felonies, Interpol
can issue notices, and the abducting parent can be arrested during international travel. The Convention does not demand that any country recognize the ruling of a family court in other countries. Rather, the convention demands that signatories recognize and promptly return abducted children to their habitual residence. As a non-signatory, Japan will not return abducted children to their habitual residence even if they grew up overseas, while abduction or re-abduction of Japanese children in Japan by a foreign parent from de facto custodial Japanese parent would be considered as crime if force is involved, due to the heavy preference of Japanese courts to maintain the status quo of the children in Japan. Since The Hague convention came into effect, not a single Japanese case on international parental abduction has been solved through Japanese court ruling and enforcement.
professor specializing in international private law observed that Japan did not need to join the Hague Convention when it took effect in 1980 because of the low number of international marriages at the time, which is no longer the case in the present situation. Similarly, a spokesman from the Ministry of Foreign Affairs said that the Ministry was not opposed to the convention, but that “at present there is not enough support from Japanese nationals.”
In 2008, Japan Today had reported that, by 2010, Japan would become a signatory of the convention. However, this report has proven to be inaccurate. The 2009 election saw the Democratic Party of Japan
gain power. Yukio Hatoyama
stated in an interview,
However Hatoyama resigned as Prime Minister before any such change was implemented.
In a similar joint symposium held in American Embassy in May 2009, embassy officials from Canada, France, the UK, and the US issued a joint statement calling Japan to sign the Hague Convention. Following the Christopher Savoie incident (see "Specific Cases" section bewlo), a near identical statement was reissued in October 2009 with additional support from Australia, Italy, New Zealand and Spain. The latest 2009 statement from Foreign Minister Katsuya Okada
says that Japan is considering being a signatory, stating that "we are approaching the matter with an open mind, but we must also take public opinion into account."
The main problem, according to Jeremy Morley, a New York City
-based attorney who has worked on parental child abduction cases in Japan, is that Japanese family law is not currently in line with the Hague Convention and that new legislation must be introduced if Japan is to sign it. Hans van Loon, Secretary General of the Hague Convention on Private International Law point out that "Japanese civil law stresses that in cases where custody cannot be reached by agreement between the parents, the Japanese Family Court will resolve the issue based on the best interest of the child. However, compliance with Family Court rulings is essentially voluntary, which renders any ruling unenforceable unless both parents agree." Yuko Nishitani, an associate professor at Tohoku University and director of the Hague Academy of International Law, concurs, saying that "the real reason Japan has not signed the Hague Convention is that no enforcement mechanism exists in the country. Signing the convention would expose these flaws." An official of Ministry of Foreign Affairs stated that "The Japanese government's position is 'not interfering in civil affairs'.
Any introduction of prerequisite legislation which would alter Japanese family court law will take at least a year in committee discussion and draft legislation could be introduced only in 2011 at the earliest and possibly later which mean that passing of legislation and signature of treaty, if ever happen, be later than 2011. Moreover, providing administration and judicial authorities to implement effective enforcement measures as required by the Convention is the main impediment for Japan signing the convention.
Presently, after a meeting with the ambassadors of numerous nations, the Japanese government has established a Vice-Ministerial-level work group to study the proposal set forth by these nations as to whether to ratify the Convention or not.
, a significant number of parental abduction cases filed in North America and Europe involve Japanese wives, and of those wives a number of them claim their husbands were abusive
.
Kensuke Onuki, a prominent Japanese lawyer who handles many international divorces, was reported as saying he opposes Japan signing the convention and claims that "[i]n over 90 percent of cases in which the Japanese women return to Japan, the man is at fault, such as with domestic violence and child abuse," but admits that "domestic violence is difficult to prove."http://203.140.231.151/category/quote-of-the-day/view/most-child-abductions-by-japanese-women-are-a-result-of-spousal-violence Attorney Mikiko Otani, an expert on family law who ultimately supports joining the Hague Convention, also expressed her reservation, saying that the convention is based on the principle of returning the child and only in very extreme violent cases has the Article 13 defense been successfully invoked. On the other hand, Colin Jones of Doshisha University, while accepting that domestic abuse defense in the convention is inadequate, nevertheless argued that if Japan signed the convention, abducting mothers would more than likely resort to this defense successfully to avoid their children being returned because Japanese family court is heavily biased in favor of the mother.
Domestic violence is also an issue of concern amongst signatory countries. Large numbers of signatory states report that domestic violence is an issue in the enforcement of the treaty. The Special Commission of the Hague Convention stated in its report that two-thirds of the abductions are committed by the child's primary caretakers, usually mothers, and that this is "giving rise to issues which had not been foreseen by the drafters of the Convention".
Merle H. Weiner in the Fordham Law Review pointed out that there was widespread media attention in the US during the late 1970s and early 1980s about international child abduction where the typical abductor was a foreign non-custodial male who abducted children from their primary caregiver. According to Weiner, this stereotype dominated the U.S. Congressional proceeding for ratification and resulted in a presumption in the US that abduction is always harmful to children. The Hague Convention makes no mention of domestic violence as a defense. Due to the focus on promoting return of children to their habitual residence, "the domestic violence victim's ability to defeat a Hague Convention application for the return of their child, if possible at all, often turns more on fortuity and the judge's sympathy than on any principled rule of law." The Australian delegate to the Hague Convention commission stated that:
There are cases where, if the child is returned, the abductor will not or cannot return with the child out of safety concerns. One of the crucial problems is that, upon return to the foreign country, abducting parents lack resources to hire a lawyer to obtain protective measures against domestic violence. A possibility that the implementation of the treaty would, in practice, tear the child away from the child's primary caregiver as they are unable to accompany the children to countries which have criminalized parental abduction has been cited as another concern for Japan in signing the treaty. Colin Jones, a law professor of Doshisha University
, commented that "[w]hatever the law says, it is very hard to imagine it being in the interests of the police and prosecutors to be seen taking crying half-Japanese children away from distraught Japanese mothers."
Japan is a signatory to the UN Convention on the Rights of the Child, which enumerates the fundamental civil, political, economic, social and cultural rights of children. There are a number of articles that deal indirectly or directly with child abduction in the Convention and demonstrate the violations of children's rights
that frequently occur during international child abductions:
Articles 7 and 8 of the Convention protect a child's right to a name and a nationality.
Article 9 protects a child's right to not be separated from his or her parents against their will and to maintain personal relations and direct contact with both parents on a regular basis, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests
of the child.
In accordance with Article 9, Article 10 stipulates that applications for international travel for purposes of family unification be dealt with in a positive, humane and expeditious manner and that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.
Articles 11 and 35 specifically exhort state parties to take all appropriate national, bilateral and multilateral measures to combat the illicit transfer and non-return of children abroad and promote the conclusion of bilateral or multilateral agreements or accession to existing agreements and measures to prevent the abduction of children.
– In 2009, Christopher Savoie's arrest in Japan made international headlines. Savoie is an American-born, naturalized Japanese father, who despite Japanese nationality law
, retains U.S. citizenship
. He divorced his wife, Noriko Saboi, in the US, and the Tennessee
family court granted Noriko custody due to her agreeing to remain in the US with Christopher being granted visitation rights. Noriko Saboi agreed as part of her signed divorce agreement to reside permanently with her children in Tennessee. She was allowed as part of the divorce decree to take the children for an extended six-week-visit to Japan every year. While she was supposedly on vacation in Japan, she enrolled the children in school and changed their residency to Japan. She and her children returned to Tennessee, and shortly thereafter she abducted them to Japan. Christopher Savoie was subsequently given full custody of the children by a Tennessee court. He flew to Japan and took his children while his ex-wife was dropping them off at school in Fukuoka
. Japanese police arrested him for suspicion of kidnapping as he was attempting to enter the local US consulate with his children but he was never charged or indicted. The case and the issue of parental abduction by Japanese nationals has gained significant publicity in U.S. and many countries. In 2011, a judge in Tennessee awarded Christopher $6.1 million (US
) from his ex-wife.
International child abduction
The term international child abduction is generally synonymous with international parental kidnapping, child snatching, and child stealing. However, the more precise legal usage of international child abduction originates in private international law and refers to the illegal removal of children...
or removal of children from their country of habitual residence by an acquaintance or family member to Japan or their retention in Japan in contravention to the law of another country. Most cases involve a Japanese mother taking her children to Japan in defiance of visitation or joint custody orders issued by Western courts. The issue is a growing problem as the number of international marriage
International marriage
This page is linked to:*Interracial marriage, marriage between two people of differing racial groups*International marriage agency, a business to introduce people of different countries for marriage...
s increases. Barring exceptional circumstances, the effects of child abduction are generally detrimental to the welfare of children
Child welfare
Child protection is used to describe a set of usually government-run services designed to protect children and young people who are underage and to encourage family stability...
. Parental abduction often has a particularly devastating effect on parents who may never see their children again.
Japan, together with most Asian and African countries, is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction
Hague Convention on the Civil Aspects of International Child Abduction
The Hague Convention on the Civil Aspects of International Child Abduction, or Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child internationally abducted from one member nation to...
, which obliges signatories to promptly return abducted children to their country of habitual residence. Critics of the Japanese legal system say this refusal has the practical effect of facilitating international child abduction. The issue has become a cause for significant concern to signatory nations, the majority of which are Western countries. The main impediment to Japan's signing the convention is that it would require an overhaul of the Japanese legal system. Japanese family law considers issues of divorce custody, child support or alimony as predominantly private matters. Consequently, Japan has no enforcement mechanism to enforce foreign custody rulings or recommendations made by its own domestic courts. Furthermore, Japan does not recognise joint parental authority or shared "residence" after divorce. As a signatory to the United Nations Convention on the Rights of the Child, however, Japan is supposed to recognize the right of a child to obtain non-custodial parent visitation
Contact (law)
In family law, contact is one of the general terms which denotes the level of contact a parent or other significant person in a child's life can have with that child...
. However, the Supreme Court of Japan has recently ruled that this does not amount to the right of non-custodial parents to see their children (it has ruled that state-enforced visitation is the right of neither parent nor children). This ruling, in effect, makes visitation without the cooperation of the custody-holding parent a practical impossibility.
Profile of parental child abduction
An analysis of 99 global cases of international child abduction conducted by International Social ServicesInternational Social Services
International Social Service or ISS is an international charitable, non-governmental organisation. It provides assistance in cases of family breakdowns with an international aspect, for example ascertaining a child's best interest where divorced parents live in different countries...
, a Geneva-based International NGO which specializes in international parental abduction, during the 1970s indicated that 79 sets of parents were from different birth countries and cultural difference between the partners was one of the main elements in the cases. Moreover, the majority (80 cases) of abductor were fathers. In these cases three reasons were often given as the reason for the abduction:
- a wish to control the cultural upbringing of the child (often expressed by abducting fathers)
- a fear of loss of the relationship with the child
- frustration in relation to the arrangement of residence and contact (custody and visitation in U.S.)
By 1990, of the 1,080 applications for the Hague Convention reveal, 70% of abductors were women and the most common reason for these abduction were claims, substantiated or not, that they were fleeing from domestic violence. International Social Services lists following motives in their report for parental abduction.
- a deep sense of unfairness felt by one parent in relation to the contact (visitation) arrangement
- hostility between the former or estranged parents resulting in a desire for revenge against the other parent
- domestic violence
- fear of the other parent
- the inability of the parents to communicate
- the proprietarial nature of some parents' relationships with their children
Parental child abduction in law
In some countries, international child abduction is a felony. The US made it so in the International Parental Kidnapping Crime Act of '93. In the United KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
the Child Abduction Act 1984 provides that the offence of abduction of a child by a parent is committed only if the child is taken out of the U.K. for a period exceeding one month.
In the case of Japan, CNN quoted an unnamed official in the U.S. Embassy in Tokyo
Embassy of the United States in Tokyo
The Embassy of the United States in Tokyo represents the United States to Japan. Along with consulates general in Osaka, Nagoya, Sapporo, Fukuoka, and Naha, the embassy provides assistance to American citizens and issues visas to foreign nationals who wish to visit or immigrate to the United...
who stated, "Our two nations approach divorce and child-rearing differently. Parental child abduction is not considered a crime in Japan." However, this statement is contradicted by several Japanese news media sources which report arrests involving parental abduction in Japan. The Supreme Court of Japan
Supreme Court of Japan
The Supreme Court of Japan , located in Chiyoda, Tokyo is the highest court in Japan. It has ultimate judicial authority to interpret the Japanese constitution and decide questions of national law...
categorically ruled that a parental abduction in which force and coercion is used to remove child constitutes the felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
of kidnapping of a minor irrespective of person's custodial right. The case concerned a couple who were separated but not divorced so the abducting father held joint custody. Therefore, while civil liability (or criminal liability in some countries) for parental abduction arise out of custodial interference of a parent and is not legally defined as kidnapping, in Japan, parental abduction is a kidnapping if it disrupts a child's residence or relationship with the primary caregiver. At the same time Japanese family courts have no enforcement mechanism in civil matters so they strongly encourage parents to engage in mediation in order to agree to custody arrangements on their own and rarely intervene in matters such as visitation and child support which are seen as private. Furthermore, it is rare for a nation to extradite one of its own citizens to another country for alleged parental abduction. On the other hand, a foreign national father, trying to re-abduct his child in Japan by force, may face arrest and possible criminal prosecution irrespective of his custodial status in the child's home country. Moreover, a foreign father trying to abduct children by force to another country would face the extra charge of "kidnapping for the purpose of transporting the kidnapped person to a foreign country" (Article 226(1) of the Penal Code), which carries the penalty of imprisonment with labor for a limited period of not less than two years. The law, which was originally designed as an extra penalty for the kidnapping of a minor for sexual slavery in China, is now used for preventing forced abduction from Japan by a parent. This provision of the Penal Code was amended in 2005 so that it covers kidnapping and abduction from any country, not just Japan. This means that it constitutes a criminal offence under Japanese law for a Japanese national to abduct his or her own child by force in another country and bring the child to Japan, and in such cases Japanese police and prosecutors could initiate criminal proceedings. However, this provision likely will not apply to cases where a Japanese mother who is the primary caregiver brings her children back to Japan in defiance of the custodial ruling of a foreign court, as this would not likely be seen to involve coercion or force against the child.
International parental abduction statistics
Megumi Nishikawa, a senior writer for the Mainichi newspaper, stated in an editorial that there were nearly 200 cases of such disputes in Japan.The United States Department of State
United States Department of State
The United States Department of State , is the United States federal executive department responsible for international relations of the United States, equivalent to the foreign ministries of other countries...
website states that,
...in cases of international parental child abduction, foreign parents are greatly disadvantaged in Japanese courts, both in terms of obtaining the return of children to the United States, and in achieving any kind of enforceable visitation rights in Japan. The Department of State is not aware of any case in which a child taken from the United States by one parent has been ordered returned to the United States by Japanese courts, even when the left-behind parent has a United States child custody decree.
According to the US Embassy, between 2005 and 2009 the number of child abduction cases of children from Australia, Canada, France, the United Kingdom, and the United States has quadrupled.
Australia
According to the Australian Embassy in Japan in 2010 there have been thirteen abductions to date., there were at least thirteen cases of unresolved parental abduction to Japan. Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, unlike other nations, does not maintain a national database of parental abduction cases. Moreover, media restrictions on family law and juvenile matters mean that many cases go unreported.
Canada
, there are 29 cases of unresolved parental child abduction to Japan, the highest of any destination country from Canada. In early 2007, there were 31 active cases of child custody and family distress dealt by Canadian Embassy and in 2006, there were 21 active cases.France
, there are 35 cases of international parental child abduction of French nationalsFrench nationality law
French nationality law is historically based on the principles of jus soli , according to Ernest Renan's definition, in opposition to the German's definition of nationality, Jus sanguinis , formalized by Fichte.The 1993 Méhaignerie Law required children born in France of foreign parents to request...
related to Japan.
United Kingdom
From 2003 to 2009, the United Kingdom has had 37 cumulative cases of British nationals being abducted to Japan by a parent, none of which have been resolved. For a yearly figure, The GuardianThe Guardian
The Guardian, formerly known as The Manchester Guardian , is a British national daily newspaper in the Berliner format...
newspaper reported that, for 2008 alone, there are 336 cases and estimated 470 children were abducted from the UK and taken abroad illegally, an increase of 20% from 2005 figures. Pakistan (30 cases) top the list followed by the US (23), Ireland (22) and Spain (21). Other abduction hotspots included Australia, France and Egypt. The cases of international parental abduction are not well published in U.K. due to reporting restrictions that apply to any cases involving the welfare of minors. However, the Guardian provided anecdotal evidence. A reporter attended a day in London family court. Eight out of 14 cases heard involved child abduction, which may indicate that the problem is widespread. 40% (134 out of the 336) of international abductions in 2008 involve countries that are not signatories to the Hague Convention. These include Bangladesh, Russia, Iraq and Nigeria. Moreover, the problem is expected to worsen as immigration and international marriage become common. Moreover, The Independent
The Independent
The Independent is a British national morning newspaper published in London by Independent Print Limited, owned by Alexander Lebedev since 2010. It is nicknamed the Indy, while the Sunday edition, The Independent on Sunday, is the Sindy. Launched in 1986, it is one of the youngest UK national daily...
newspaper cites the Reunite International Child Abduction Centre which claims that 43% of parental abductions involve ethnic minority children taken abroad and often forced to marry. Moreover, cultural complicity, collusion and shame mean that many cases go unreported.
United States
The U.S. State Department, which enforces the treaty in the U.S., has more than 2,000 active cases in 2009 involving nearly 3,000 children abducted from the U.S. or wrongfully retained abroad. The ten countries with the highest incidence of reported abductions in 2008 are MexicoInternational child abduction in Mexico
Mexico is amongst the world's most popular sources and destinations for international child abduction while also being widely regarded as having one of the least effective systems of protecting and returning internationally abducted children within its borders....
(316), Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
(57), the United Kingdom (42), Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
(37), India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
(35), Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
(34), the Dominican Republic
Dominican Republic
The Dominican Republic is a nation on the island of La Hispaniola, part of the Greater Antilles archipelago in the Caribbean region. The western third of the island is occupied by the nation of Haiti, making Hispaniola one of two Caribbean islands that are shared by two countries...
(25), Brazil
Brazil
Brazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
(21), Australia (18), and Colombia
Colombia
Colombia, officially the Republic of Colombia , is a unitary constitutional republic comprising thirty-two departments. The country is located in northwestern South America, bordered to the east by Venezuela and Brazil; to the south by Ecuador and Peru; to the north by the Caribbean Sea; to the...
(17), which together represent 602 cases out of the total of 776. Japan and India are the only non-signatory countries in this group. However, there has been a significant year by year increase. In 2009, there were 73 outstanding cases involving 104 children who have been abducted to or retained in Japan by parents. An additional 29 cases involve American parties in Japan with one parent denied access to his or her child. However, according to December 2009 figures, there appeared to be 79 child abduction cases involving 100 children. A State Department official stated in 2008 that no child has ever been returned to the US as a result of diplomatic or legal means Furthermore, embassy officials were only aware of three cases where children have returned to America, two involving reconciliation of parents and one in which a 15-year-old escaped to the American embassy.
Other nations
Justin McCurry of the GlobalPost claimed that the unofficial number of international parental abduction in Japan is much higher if failed marriages between Japanese and people from other Asian countries are included. Quoting Thierry Consigny of the Assembly for French Overseas Nationals (AFE) for Japan and North Asia, he point out that every year 166,000 children are separated from one of their parents in Japan following a divorce or separation, usually definitively, and 10,000 or more children of dual nationality fall into this situation.International marriage and divorce in Japan
Japan is experiencing a dramatic increase in the number of international marriagesTransnational marriage
A transnational marriage is a marriage between two people from different countries. A variety of special issues arise in marriages between people from different countries, including those related to citizenship and culture, which add complexity and challenges to these kinds of relationships.In an...
between a Japanese
Japanese people
The are an ethnic group originating in the Japanese archipelago and are the predominant ethnic group of Japan. Worldwide, approximately 130 million people are of Japanese descent; of these, approximately 127 million are residents of Japan. People of Japanese ancestry who live in other countries...
and a non-Japanese. In 2007, 40,272 international marriages between a Japanese national and foreigner occurred, representing 5.6% of total marriages (719,822). In 2000, the number was 36,263, and in 1980 the number was only 7,261. This is despite the fact that the foreigners represent only about 1.22% of the total population in Japan. An estimated 20,000 children are born to Japanese-foreign couples every year. The vast majority of these marriages are with Chinese
Chinese people
The term Chinese people may refer to any of the following:*People with Han Chinese ethnicity ....
and Koreans, many of whom are second- or third-generation permanent residents of Japan, also known as zainichi
Zainichi
Zainichi is a Japanese term meaning " residing in Japan," used often to point out Zainichi Koreans.*Zainichi Korean or Zainichi Chōsenjin or Zainichi Kankokujin .*Zainichi Gaikokujin , meaning "foreigner in Japan".*Zainichi Beigun...
, and other neighboring nations such as the Philippines
Philippines
The Philippines , officially known as the Republic of the Philippines , is a country in Southeast Asia in the western Pacific Ocean. To its north across the Luzon Strait lies Taiwan. West across the South China Sea sits Vietnam...
and Thailand
Thailand
Thailand , officially the Kingdom of Thailand , formerly known as Siam , is a country located at the centre of the Indochina peninsula and Southeast Asia. It is bordered to the north by Burma and Laos, to the east by Laos and Cambodia, to the south by the Gulf of Thailand and Malaysia, and to the...
. However, the cases of a Japanese woman marrying a foreign national husband, marriage to a U.S. national
United States nationality law
Article I, section 8, clause 4 of the United States Constitution expressly gives the United States Congress the power to establish a uniform rule of naturalization. The Immigration and Naturalization Act sets forth the legal requirements for the acquisition of, and divestiture from, citizenship of...
is high (1,485), ranking second after Korean nationals
South Korean nationality law
South Korean nationality law defines who is a South Korean citizen, as well as the procedures by which one may be naturalized into South Korean citizenship or renounce it.-Basic definition:South Korean nationality can be acquired in a number of ways:...
(2,209), followed by Chinese nationals
Chinese nationality
Chinese nationality may refer to the nationality or the right to carry a passport of a number of areas:* Nationality Law of the Republic of China, the law which defines who is or may become a ROC national....
(1,016).
At the same time, the number of international divorces in Japan is also increasing from 7,716 in 1992 to 18,220 in 2007. International divorces represent 7.15% of the total 254,832 divorces in Japan in 2007. Moreover, according to a 2007 figure, 10.53% of people under 20 experience the divorce of their parents. In 1990, the rate was 5.24%. In numerical terms, 245,685 under-20 year olds, had experienced the divorce of their parents, compared to 169,624 in 1990. In July 2008, Thierry Consigny of the Assembly for French Overseas Nationals (AFE) for Japan and North Asia, which has been advocating for right of foreign parents in Japan, further asserted that, according to a government survey, every year 166,000 children are separated from one of their parents in Japan following a divorce or separation, usually definitively. Furthermore 10,000 or more children of dual nationality fall into this situation as well. Foreign parents face an additional obstacle in maintaining access due to their immigration status which may be revoked after a divorce.
Divorce, custody and visitation in Japan
In Japan, according to 2004 data from National Institute of Population and Social Security Research, mothers receive custody in roughly 80 percent of divorces involving children. This is a shift from 1970 which awarded custody to mothers only in 50 percent of cases. Similarly, in the U.S. one source estimates that fathers received sole or joint custody 26 percent of the time while mothers or someone other than the father received sole custody 74 percent of the time.While the law in some countries, such as France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
or the United States, provide for joint custody in divorce cases involving children, Japanese law does not provide for this arrangement. Jeremy D. Morley, an American lawyer who has handled many abduction cases in Japan, has pointed out that the practice of sharing child custody after a divorce is "alien" to Japanese and not found in Japanese culture or history, which may help to explain its absence from Japanese law. In Japan, when a marriage with children legally dissolves, full parental custody and authority is awarded to only one parent. Moreover, this custody ruling creates complete legal separation of the non-custodial parent from his or her biological children. An academic article discussing the work of Takao Tanase, notable legal scholar of comparative study of American and Japanese legal system, asserts that "the real difference lies in the two cultures' diverging conception of social parenthood, and thus of the identity of the person who holds parental rights: the noncustodial American parent remains a legal parent at least in part because he or she remains a social parent, in aspiration if not reality, while the traditional Japanese view is the opposite." The paper then goes on to describe a Japanese case whereby a father is granted a primary custody of the children after a divorce. A year after the divorce, the father marries another woman. Subsequently, the son from the previous marriage is adopted out without having given any notice to the son's biological mother and, moreover, her subsequent attempt to regain the primary custody of her biological child failed in court. In Japanese law, irrespective of her biological link, her separation from her son was complete at the point of losing the custody. The paper further states that in Japan it is seen as preferable that children make a permanent break with the non-custodial parent because creating a legal "right" for parent would cause conflict damaging to the welfare of the child. The Japan Times states that experts in Japan have been skeptical about the benefits of complete joint custody because the child is tossed back and forth between the parents for their own benefit.http://search.japantimes.co.jp/cgi-bin/nn20100514f1.html
The typical 'deal' in Japan is that, upon divorce, the father pays nothing for the child's support, and he never sees his child. It is noted that the decision by family courts in Japan with regard to both visitation and child support are unenforceable. There are several consequences to this lack of enforcement. At first, the courts strongly prefer that divorcing couples agree to child custody arrangements in mediation. If mediation fails, the court can intervene and has the power to determine which parent shall have parental authority. Article 819 of Japanese Civil Code states that "In the case of judicial divorce, the court shall determine which parent shall have parental authority." The primary custodian, or caregiver, as defined by the Japanese legal system, is the parent who has physical possession of the child at the time the case is initially brought to court in Japan. In other words, the court will likely choose the parent who already has possession. Colin P.A. Jones, a professor at Doshisha Law School, states that parental rights are not recognised in Japanese law, pointing out an academic debate in Japan over whether visitation
Visitation
Visitation may refer to:In history:* Heraldic visitation, tours of inspection to establish the right of a person to bear arms, and are used today in genealogical research.In law:...
was a right of the parent or the child or something else. In regard to visitation/access, the Supreme Court held in 2000 that visitation was a right of neither parent nor child. http://search.japantimes.co.jp/cgi-bin/fl20100202zg.html
Consequently, court-mandated visitation in Japan only occurs with the cooperation of the custodial parent. U.S. Department of State website states that "compliance with Family Court rulings is essentially voluntary, which renders any ruling unenforceable unless both parents agree." Consequently, any attempt to obtain visitation (or child support and/or alimony) through legal enforcement would be futile. If the custodial parent, usually the mother, refuses to cooperate with visitation, the other parent, usually the father, will often refuse to pay child support. According to New York City-based international family lawyer Jeremy D. Morley:
A charitable view of the Japanese system of divorce is that it favors a ‘clean break’ so that the divorced parties have little or nothing more to do with each other after the divorce. A less generous interpretation is that it permits the spouse with economic assets (usually the husband) to keep most of his assets, avoid payment of alimony and provide little or no child support, but the price he pays is the abandonment of any relationship with his children, while the other spouse is punished economically, but keeps her children.
In the 82 signatory countries custody rulings differ by country. While the mother usually gains sole or primary custody, there is an increasing trend in other developed countries to shift to shared parenting
Shared parenting
Shared parenting refers to a collaborative arrangement in child custody or divorce determinations in which the care of the children is equal or more than substantially shared between the biological parents.- Nature and History :...
and joint custody
Joint custody
Joint custody is a court order whereby custody of a child is awarded to both parties. In joint custody both parents are custodial parents and neither parent is a non-custodial parent, or, in other words, the child has two custodial parents. In the United States, many states recognize two forms of...
. Enforcement of custody orders is also an issue in those countries that usually award sole or primary custody, as it is in Japan. In the UK, fathers' rights groups have advocated for changes to the Child Support Act including child support, shared parenting and access to children, and lack of enforcement of court orders.
Koseki issue
Moreover, something that is somewhat unique in Japanese custody arrangements is the system of koseki, which legally defines households and persons' legal identity in Japanese law. When a non-Japanese marries a Japanese, the foreign spouse's name is recorded into Japanese spouse's koseki upon filing of the marriage, but the spouse's entry is not created in the koseki because of lack of Japanese citizenship. When their child is born, because the child has Japanese citizenship, an entry is created for the child in the Japanese spouse's koseki. There is a widespread misunderstanding that when a divorce occurs, the foreign spouse is removed from the koseki and the children's custody is automatically kept by the Japanese spouse who hold the koseki. Koseki and custody are not related. When a divorce is finalized at the city hall, the name of the custodial parent of each child must be written in the filing. The name of the custodial parent is then recorded in each child's entry in the koseki. Therefore, it is wrong to assume that unless custody is litigated in Japan, the Japanese parent will automatically hold custody of children in Japan, irrespective of the ruling of the foreign court. A divorce is not finalized in Japan unless custody is agreed to by the spouses or determined by the Japanese court. Furthermore, it is also wrong to assume that if the custodial parent dies, custody of the child is transferred within the koseki, which would mean that custody would be retained by the dead spouse's new married partner or Japanese grandparents who retain their custody as primary caregiver and would not be transferred to the surviving parent. When a sole custodial parent dies, the family court starts the procedure of appointing a guardian unless one has been designated in the will of the custodial parent.The Hague Convention
Japan is one of two G8
G8
The Group of Eight is a forum, created by France in 1975, for the governments of seven major economies: Canada, France, Germany, Italy, Japan, the United Kingdom, and the United States. In 1997, the group added Russia, thus becoming the G8...
members, the other being Russia
Russia
Russia or , officially known as both Russia and the Russian Federation , is a country in northern Eurasia. It is a federal semi-presidential republic, comprising 83 federal subjects...
, and the only G7 nation, to not sign the Hague Convention on Child Abduction, which requires signatory governments to return children to their "habitual residence" when children are illegally removed or retained from that residence in violation of another party's, generally the other parent's, custodial rights. Most of the 82 signatory countries are Western nations
Western world
The Western world, also known as the West and the Occident , is a term referring to the countries of Western Europe , the countries of the Americas, as well all countries of Northern and Central Europe, Australia and New Zealand...
from Europe, North America, South America and Australia while most countries from Africa, Asia and the Middle East are not signatories of the convention. Since this treaty is not retroactive, the present ongoing cases cannot be resolved even if Japan signs on to the Hague convention. Rather, remedies must be sought under Japanese family law to enforce visitation orders.
Within signatory countries, children who were abducted are supposed to be sent back to their "habitual residence" after the abduction takes place. For nations which define such abductions as felonies, Interpol
Interpol
Interpol, whose full name is the International Criminal Police Organization – INTERPOL, is an organization facilitating international police cooperation...
can issue notices, and the abducting parent can be arrested during international travel. The Convention does not demand that any country recognize the ruling of a family court in other countries. Rather, the convention demands that signatories recognize and promptly return abducted children to their habitual residence. As a non-signatory, Japan will not return abducted children to their habitual residence even if they grew up overseas, while abduction or re-abduction of Japanese children in Japan by a foreign parent from de facto custodial Japanese parent would be considered as crime if force is involved, due to the heavy preference of Japanese courts to maintain the status quo of the children in Japan. Since The Hague convention came into effect, not a single Japanese case on international parental abduction has been solved through Japanese court ruling and enforcement.
Japanese support for the convention
In a joint symposium on child abduction held at the Canadian Embassy in Tokyo in 2006, Jun Yokoyama, a Hitotsubashi UniversityHitotsubashi University
is a national university specialised in the social sciences in Tokyo, Japan. The University has campuses in Kunitachi, Kodaira, and Kanda.Hitotsubashi is considered as one of the most prestigious universities in Japan. It is ranked 25th in the world in 2011 by École des Mines de Paris.Hitotsubashi...
professor specializing in international private law observed that Japan did not need to join the Hague Convention when it took effect in 1980 because of the low number of international marriages at the time, which is no longer the case in the present situation. Similarly, a spokesman from the Ministry of Foreign Affairs said that the Ministry was not opposed to the convention, but that “at present there is not enough support from Japanese nationals.”
In 2008, Japan Today had reported that, by 2010, Japan would become a signatory of the convention. However, this report has proven to be inaccurate. The 2009 election saw the Democratic Party of Japan
Democratic Party of Japan
The is a political party in Japan founded in 1998 by the merger of several opposition parties. Its socially liberal platform is generally considered center-left in the Japanese political spectrum...
gain power. Yukio Hatoyama
Yukio Hatoyama
is a Japanese politician who served as Prime Minister of Japan between 16 September 2009 and 2 June 2010, and was the first ever Prime Minister from the modern Democratic Party of Japan....
stated in an interview,
My heart goes out to the fathers and mothers. There are cases of mothers as well. We support ratifying and enforcing the Hague Convention, and involved in this is a sweeping change to allow divorced fathers visitation of their children. That issue affects not just foreign national fathers, but Japanese fathers as well. I believe in this change.
However Hatoyama resigned as Prime Minister before any such change was implemented.
In a similar joint symposium held in American Embassy in May 2009, embassy officials from Canada, France, the UK, and the US issued a joint statement calling Japan to sign the Hague Convention. Following the Christopher Savoie incident (see "Specific Cases" section bewlo), a near identical statement was reissued in October 2009 with additional support from Australia, Italy, New Zealand and Spain. The latest 2009 statement from Foreign Minister Katsuya Okada
Katsuya Okada
is a Japanese politician. A member of the House of Representatives of Japan, he is Secretary-General of the Democratic Party of Japan and was previously its President. From September 2009 to September 2010, he was Foreign Minister of Japan....
says that Japan is considering being a signatory, stating that "we are approaching the matter with an open mind, but we must also take public opinion into account."
The main problem, according to Jeremy Morley, a New York City
New York City
New York is the most populous city in the United States and the center of the New York Metropolitan Area, one of the most populous metropolitan areas in the world. New York exerts a significant impact upon global commerce, finance, media, art, fashion, research, technology, education, and...
-based attorney who has worked on parental child abduction cases in Japan, is that Japanese family law is not currently in line with the Hague Convention and that new legislation must be introduced if Japan is to sign it. Hans van Loon, Secretary General of the Hague Convention on Private International Law point out that "Japanese civil law stresses that in cases where custody cannot be reached by agreement between the parents, the Japanese Family Court will resolve the issue based on the best interest of the child. However, compliance with Family Court rulings is essentially voluntary, which renders any ruling unenforceable unless both parents agree." Yuko Nishitani, an associate professor at Tohoku University and director of the Hague Academy of International Law, concurs, saying that "the real reason Japan has not signed the Hague Convention is that no enforcement mechanism exists in the country. Signing the convention would expose these flaws." An official of Ministry of Foreign Affairs stated that "The Japanese government's position is 'not interfering in civil affairs'.
Any introduction of prerequisite legislation which would alter Japanese family court law will take at least a year in committee discussion and draft legislation could be introduced only in 2011 at the earliest and possibly later which mean that passing of legislation and signature of treaty, if ever happen, be later than 2011. Moreover, providing administration and judicial authorities to implement effective enforcement measures as required by the Convention is the main impediment for Japan signing the convention.
Presently, after a meeting with the ambassadors of numerous nations, the Japanese government has established a Vice-Ministerial-level work group to study the proposal set forth by these nations as to whether to ratify the Convention or not.
Domestic violence
Japan has argued that becoming a signatory of the convention may not protect Japanese women and their children from abusive non-Japanese husbands. According to an editorial from the Asahi ShimbunAsahi Shimbun
The is the second most circulated out of the five national newspapers in Japan. Its circulation, which was 7.96 million for its morning edition and 3.1 million for its evening edition as of June 2010, was second behind that of Yomiuri Shimbun...
, a significant number of parental abduction cases filed in North America and Europe involve Japanese wives, and of those wives a number of them claim their husbands were abusive
Domestic violence
Domestic violence, also known as domestic abuse, spousal abuse, battering, family violence, and intimate partner violence , is broadly defined as a pattern of abusive behaviors by one or both partners in an intimate relationship such as marriage, dating, family, or cohabitation...
.
Kensuke Onuki, a prominent Japanese lawyer who handles many international divorces, was reported as saying he opposes Japan signing the convention and claims that "[i]n over 90 percent of cases in which the Japanese women return to Japan, the man is at fault, such as with domestic violence and child abuse," but admits that "domestic violence is difficult to prove."http://203.140.231.151/category/quote-of-the-day/view/most-child-abductions-by-japanese-women-are-a-result-of-spousal-violence Attorney Mikiko Otani, an expert on family law who ultimately supports joining the Hague Convention, also expressed her reservation, saying that the convention is based on the principle of returning the child and only in very extreme violent cases has the Article 13 defense been successfully invoked. On the other hand, Colin Jones of Doshisha University, while accepting that domestic abuse defense in the convention is inadequate, nevertheless argued that if Japan signed the convention, abducting mothers would more than likely resort to this defense successfully to avoid their children being returned because Japanese family court is heavily biased in favor of the mother.
Domestic violence is also an issue of concern amongst signatory countries. Large numbers of signatory states report that domestic violence is an issue in the enforcement of the treaty. The Special Commission of the Hague Convention stated in its report that two-thirds of the abductions are committed by the child's primary caretakers, usually mothers, and that this is "giving rise to issues which had not been foreseen by the drafters of the Convention".
Merle H. Weiner in the Fordham Law Review pointed out that there was widespread media attention in the US during the late 1970s and early 1980s about international child abduction where the typical abductor was a foreign non-custodial male who abducted children from their primary caregiver. According to Weiner, this stereotype dominated the U.S. Congressional proceeding for ratification and resulted in a presumption in the US that abduction is always harmful to children. The Hague Convention makes no mention of domestic violence as a defense. Due to the focus on promoting return of children to their habitual residence, "the domestic violence victim's ability to defeat a Hague Convention application for the return of their child, if possible at all, often turns more on fortuity and the judge's sympathy than on any principled rule of law." The Australian delegate to the Hague Convention commission stated that:
There is concern that the Convention is now being used by abusive (usually male) parents to seek the return of children and primary carers back to the country of habitual residence and that the Convention is moving away from what it was meant to deter. Recent statistics demonstrate that the majority of abducting parents are women, often those fleeing situation[s] of abuse and domestic violence. There is also growing concerns regarding the correlation between incidents of child abduction and the presence of domestic violence and that the Convention does not give due consideration and sufficient weight to such mitigating circumstances in the context of a "grave risk" argument.
There are cases where, if the child is returned, the abductor will not or cannot return with the child out of safety concerns. One of the crucial problems is that, upon return to the foreign country, abducting parents lack resources to hire a lawyer to obtain protective measures against domestic violence. A possibility that the implementation of the treaty would, in practice, tear the child away from the child's primary caregiver as they are unable to accompany the children to countries which have criminalized parental abduction has been cited as another concern for Japan in signing the treaty. Colin Jones, a law professor of Doshisha University
Doshisha University
, or is a prestigious private university in Kyoto, Japan. The university has approximately 27,000 students on three campuses, in faculties of theology, letters, law, commerce, economics, policy, and engineering...
, commented that "[w]hatever the law says, it is very hard to imagine it being in the interests of the police and prosecutors to be seen taking crying half-Japanese children away from distraught Japanese mothers."
United Nations Convention on the Rights of the Child
Children's rights
Children's rights are the human rights of children with particular attention to the rights of special protection and care afforded to the young, including their right to association with both biological parents, human identity as well as the basic needs for food, universal state-paid education,...
that frequently occur during international child abductions:
Articles 7 and 8 of the Convention protect a child's right to a name and a nationality.
Article 9 protects a child's right to not be separated from his or her parents against their will and to maintain personal relations and direct contact with both parents on a regular basis, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests
Best interests
Best interests or best interests of the child is the doctrine used by most courts to determine a wide range of issues relating to the well-being of children. The most important of these issues concern questions that arise upon the divorce or separation of the children's parents...
of the child.
In accordance with Article 9, Article 10 stipulates that applications for international travel for purposes of family unification be dealt with in a positive, humane and expeditious manner and that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.
Articles 11 and 35 specifically exhort state parties to take all appropriate national, bilateral and multilateral measures to combat the illicit transfer and non-return of children abroad and promote the conclusion of bilateral or multilateral agreements or accession to existing agreements and measures to prevent the abduction of children.
Specific cases
The following is a list of cases of international parental abduction in Japan reported in the media. Some cases involve a divorce suit filed in Japan and therefore do not involve the violation of custodial arrangements made in a foreign court or international parental abduction.- Patrick Braden – Braden and Ryoko Uchiyama had a relationship but were never married; from that relationship came Melissa Hinako Braden. According to Braden, Uchiyama had been estranged from her family, due to a number of issues including her allegation that her father sexually molestedChild sexual abuseChild sexual abuse is a form of child abuse in which an adult or older adolescent uses a child for sexual stimulation. Forms of child sexual abuse include asking or pressuring a child to engage in sexual activities , indecent exposure with intent to gratify their own sexual desires or to...
her. After the girl's birth, Uchiyama renewed contact with her family. Wishing to mend that relationship, she made clear her desire to return to Japan. In response, Braden filed for joint custody of Melissa, which was granted by a Los AngelesLos ÁngelesLos Ángeles is the capital of the province of Biobío, in the commune of the same name, in Region VIII , in the center-south of Chile. It is located between the Laja and Biobío rivers. The population is 123,445 inhabitants...
courtCalifornia lawCalifornia law consists of several levels, including constitutional, statutory, and regulatory law, as well as case law.-Constitutional law:...
. Ten days after the court's decision, Uchiyama left with Melissa for Japan, and obtained a restraining orderRestraining orderA restraining order or order of protection is a form of legal injunction that requires a party to do, or to refrain from doing, certain acts. A party that refuses to comply with an order faces criminal or civil penalties and may have to pay damages or accept sanctions...
upon arrival. Braden successfully sued Uchiyama's attorney for malpractice, claiming that the attorney knew Uchiyama’s plan in advance, but his suit against ANA Airlines for allowing her to travel was not successful. He has not seen his daughter since 2006, and continues efforts to see her but after several years says he is not optimistic.
- Yamila Castellanos – Her Japanese husband abducted their two-year-old daughter from Cuba to Japan. Allegedly, he forged Castellanos’ signature to obtain a divorce. He has denied Castellanos any access to their child, even though she holds legal custody in Cuba. She has been fighting in Japanese court without any results. In 2005 she was denied the visa extension needed to stay in Japan.
- Shane Clarke — In 2008, the wife of BritonBritish peopleThe British are citizens of the United Kingdom, of the Isle of Man, any of the Channel Islands, or of any of the British overseas territories, and their descendants...
Shane Clarke abducted their two daughters on the pretense of making a trip to Japan with them to see her ill grandmother. When Clarke next saw his wife in Japan, she informed him that would seek custody in proceedings in Japan. He is now convinced that he will never see his children again.
- Steve Christie – He claims his son was living with him in Japan and that his wife abducted their child and has denied him access. He co-founded the International Association for Parent and Child Reunion in 2009.
- Michael Gulbraa – In 1996, Michael Gulbraa and Etsuko Tanizaki divorced in Utah, and custody was awarded to Tanizaki, who remarried. Gulbraa alleged that his ex-wife's new husband physically abused their children, which was later found to be unfounded. Tanizaki and her new family then moved to Japan despite warnings to not leave the country. Gulbraa subsequently sued for custody. Because Tanizaki did not appear in Utah for court, Gulbraa won the case by default in 2002, and was awarded custody of his two sons, but as the children were in Japan, the ruling could not be enforced. The case is further complicated by the fact that Etuko Tanizaki and her new husband are devout members of LDS church while Michael Gulbraa is no longer a member. Gulbraa sued the LDS church, claiming that church officials instructed other church members not to give him information about his children and that LDS church ordained the children against the express wish of the custodial parent. This suit failed in court. In 2006, the youngest son, who says he did not want to be ordained, traveled on his own to the U.S. Consulate in OsakaOsakais a city in the Kansai region of Japan's main island of Honshu, a designated city under the Local Autonomy Law, the capital city of Osaka Prefecture and also the biggest part of Keihanshin area, which is represented by three major cities of Japan, Kyoto, Osaka and Kobe...
, and via Tokyo returned to the United States.
- Alan Kaneda – In 2003, Alan Kaneda and Chiharu Wakao divorced in HawaiiHawaiiHawaii is the newest of the 50 U.S. states , and is the only U.S. state made up entirely of islands. It is the northernmost island group in Polynesia, occupying most of an archipelago in the central Pacific Ocean, southwest of the continental United States, southeast of Japan, and northeast of...
where the state judge ordered a joint custody agreement for their daughter Marina. After more than a year of both parties abiding by the agreement, Wakao moved to Japan without informing her ex-husband. From the safety of Japan she alleges that he was abusive to their daughter, an allegation that was not made while she resided in Hawaii. She has since been indicted on a charge of first-degree custodial interference, a felony.
- Franchesca Miyara – On July 20, 2006, Puerto RicanPuerto Rican peopleA Puerto Rican is a person who was born in Puerto Rico.Puerto Ricans born and raised in the continental United States are also sometimes referred to as Puerto Ricans, although they were not born in Puerto Rico...
Franchesca Miyara's ex-husband Tetsuo Nemoto took their son from day care without permission and refused to return him. Under extreme duress, Miyara held a kitchen knife under her neck and threatened to kill herself if the husband's parents didn't return their baby. She was arrested and detained for three months in jail before trial, in which Miyara received a six-month sentence suspended for three years. Despite Miyara's countless efforts to regain Shinta's custody, the Mito Family Court has refused to intervene in the situation, favoring and even aiding the abductor Tetsuo Nemoto. Currently there is a pending arrest warrant for Nemoto in Los Angeles where the couple met and married in 2004. In 2008, Miyara took part in a Tokyo-based LeftBehind-Parents Support Group and has been since then an active member, taking part in public demonstrations and volunteering time to help the cause.
- Engle Nieman, a Dutch national, re-abducted his one-year-old daughter by force then tried to flee to his home country. He was arrested and charged with ""kidnapping for the purpose of transporting the kidnapped person to a foreign country" (Article 226(1) of the Penal Code)" and was detained for four months. He was later found guilty and was sentenced to two years in prison, suspended for three years. His appeal to the Supreme Court was dismissed.
– In 2009, Christopher Savoie's arrest in Japan made international headlines. Savoie is an American-born, naturalized Japanese father, who despite Japanese nationality law
Japanese nationality law
Japanese nationality is a legal designation and set of rights granted to those people who have met the federal criteria for citizenship by parentage or by naturalization...
, retains U.S. citizenship
Citizenship in the United States
Citizenship in the United States is a status given to individuals that entails specific rights, duties, privileges, and benefits between the United States and the individual...
. He divorced his wife, Noriko Saboi, in the US, and the Tennessee
Tennessee
Tennessee is a U.S. state located in the Southeastern United States. It has a population of 6,346,105, making it the nation's 17th-largest state by population, and covers , making it the 36th-largest by total land area...
family court granted Noriko custody due to her agreeing to remain in the US with Christopher being granted visitation rights. Noriko Saboi agreed as part of her signed divorce agreement to reside permanently with her children in Tennessee. She was allowed as part of the divorce decree to take the children for an extended six-week-visit to Japan every year. While she was supposedly on vacation in Japan, she enrolled the children in school and changed their residency to Japan. She and her children returned to Tennessee, and shortly thereafter she abducted them to Japan. Christopher Savoie was subsequently given full custody of the children by a Tennessee court. He flew to Japan and took his children while his ex-wife was dropping them off at school in Fukuoka
Fukuoka
Fukuoka most often refers to the capital city of Fukuoka Prefecture.It can also refer to:-Locations:* Fukuoka, Gifu, a town in Gifu Prefecture, Japan* Fukuoka, Toyama, a town in Toyama Prefecture, Japan...
. Japanese police arrested him for suspicion of kidnapping as he was attempting to enter the local US consulate with his children but he was never charged or indicted. The case and the issue of parental abduction by Japanese nationals has gained significant publicity in U.S. and many countries. In 2011, a judge in Tennessee awarded Christopher $6.1 million (US
United States dollar
The United States dollar , also referred to as the American dollar, is the official currency of the United States of America. It is divided into 100 smaller units called cents or pennies....
) from his ex-wife.
- Paul Toland – In 2003, U.S. NavyUnited States NavyThe United States Navy is the naval warfare service branch of the United States Armed Forces and one of the seven uniformed services of the United States. The U.S. Navy is the largest in the world; its battle fleet tonnage is greater than that of the next 13 largest navies combined. The U.S...
Commander Paul Toland was stationed at Yokosuka Naval BaseUnited States Fleet Activities YokosukaU.S. Fleet Activities Yokosuka, or Commander, Fleet Activities Yokosuka is a United States Navy base, in Yokosuka, Japan. Its mission is to maintain and operate base facilities for the logistic, recreational, administrative support and service of the U.S. Naval Forces Japan, U.S. 7th Fleet and...
, Japan. While residing at the Navy housing complex in YokohamaYokohamais the capital city of Kanagawa Prefecture and the second largest city in Japan by population after Tokyo and most populous municipality of Japan. It lies on Tokyo Bay, south of Tokyo, in the Kantō region of the main island of Honshu...
, Etsuko Toland left with their then-9-month-old child, Erika. In October 2007, however, Etsuko Futagi Toland committed suicideSuicideSuicide is the act of intentionally causing one's own death. Suicide is often committed out of despair or attributed to some underlying mental disorder, such as depression, bipolar disorder, schizophrenia, alcoholism, or drug abuse...
, and her mother assumed the possession of the child with one source stating that she holds custody. Erika is now nine, and Toland alleges that the grandmother has denied him visitation rights while the lawyer who represents the grandmother in U.S. says that Toland has been given supervised visitation opportunities that he does not take advantage of and he owes years of back child support. Toland states that he has spent over $200,000 in attorney fees and other expenses and additionally spent hundreds of hours in Japanese and U.S. courts. , efforts by Commander Toland have continued to be rebuked by his daughter's grandmother. Commander Toland is the only surviving parent of Erika Toland but is denied access to her. U.S. Congressman Christopher Smith described Commander Toland’s case as an intrafamilial child abduction, since the case does not involve abduction by a parent, but rather an abduction by a more distant relative. The Children’s Rights Council has stated that his case “is like the Elian Gonzalez case, but the aggrieved parent is from the United States, not Cuba, and the country blocking the sole surviving biological parent from contact with his child is Japan.”
- Paul Wong – Wong's Japanese wife Akemi Yokoyama Wong died from cancerCancerCancer , known medically as a malignant neoplasm, is a large group of different diseases, all involving unregulated cell growth. In cancer, cells divide and grow uncontrollably, forming malignant tumors, and invade nearby parts of the body. The cancer may also spread to more distant parts of the...
after fighting the disease for six years. After her death, Wong relocated to Japan to honour his wife's wish to care for her parents; she was an only child. Her parents were both in poor health, in their 70s, and lived on a small pension. He also wanted their daughter, Kaya Wong, to understand her Japanese heritage. Once he moved to Japan, the grandparents refused to let him see his daughter, who stayed with them while he got settled, alleging that he had abused her. Although the court ruled that the allegation could not be substantiated, they still gave custody to the grandparents. Wong has not seen his daughter since 2007.
- Murray Wood – The Wood children, Takara, 10, and Manami, 7, were abducted to Japan by Murray Wood's ex-wife, Ayako Maniwa-Wood. A year-long litigation in the Japanese courts ended in failure in 2006.
Film
From the Shadows is a documentary film about child abduction by parents and relatives in Japan. Produced and co-directed by David Hearn and Matt Antel, the film focuses on several cases. One is Murray Wood, a Canadian father, whose two children were taken by their Japanese mother. Another is Michael Gulbraa, a Utah father, whose two children were taken by their Japanese mother. The younger son returned to America on his own while the older brother remained in Japan.See also
- Ethnic issues in JapanEthnic issues in Japan- Demographic :About 1.6% of Japan's total legal resident population are foreign nationals. Of these, according to 2008 data from the Japanese government, the principal groups are as follows....
- Human rights in JapanHuman rights in JapanJapan is a constitutional monarchy. According to Ministry of Justice figures, the Japanese Legal Affairs Bureau offices and civil liberties volunteers dealt with 359,971 human rights related complaints and 18,786 reports of suspected human rights violations during 2003...
- GaijinGaijinis a Japanese word meaning "non-Japanese", or "alien". This word is a short form of gaikokujin , which literally means "person from outside of the country". The word is composed of two kanji: , meaning "outside"; and , meaning "person". Thus, the word technically means "outsider"...
- XenophobiaXenophobiaXenophobia is defined as "an unreasonable fear of foreigners or strangers or of that which is foreign or strange". It comes from the Greek words ξένος , meaning "stranger," "foreigner" and φόβος , meaning "fear."... - Hague Abduction Convention Compliance ReportsHague Abduction Convention Compliance ReportsThe Hague Convention on the Civil Aspects of International Child Abduction, commonly referred to as the Hague Abduction Convention, is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child taken illegally from one...
- International child abduction in the United StatesInternational child abduction in the United StatesAs a result of its high level of immigration and emigration and its status as common source and destination for a large amount of international travel the United States has more incoming and outgoing international child abductions per year than any other country...
- Japanese diasporaJapanese diasporaThe Japanese diaspora, and its individual members known as , are Japanese emigrants from Japan and their descendants that reside in a foreign country...
- MultiracialMultiracialThe terms multiracial and mixed-race describe people whose ancestries come from multiple races. Unlike the term biracial, which often is only used to refer to having parents or grandparents of two different races, the term multiracial may encompass biracial people but can also include people with...
- Nationality lawNationality lawNationality law is the branch of law concerned with the questions of nationality and citizenship, and how these statuses are acquired, transmitted, or lost. By custom, a state has the right to determine who its nationals and citizens are. Such determinations are usually made by custom, statutory...
External links
- The Japan Children's Rights Network - Marriage, Divorce and Child Abduction in the land of the stolen son
- The Children's Rights Council of Japan
- Father's Rights In Japan
- Bring Abducted Children Home
- The State We're In radio show reports on the Gulbraa family case
- International Association for Parent Child Reunion