International child abduction in Japan

Protesters of abduction of children to Japan at the Rally to Restore Sanity and/or Fear In Washington D.C.

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 marriages increases.[1] Barring exceptional circumstances, the effects of child abduction are generally detrimental to the welfare of children.[2] Parental abduction often has a particularly devastating effect on parents who may never see their children again.

Japan is a party 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. The convention enters into force for Japan on 1 April 2014.[3] The issue had become a cause for significant concern to other parties, the majority of which are Western countries.[4][5][6] The National Diet approved accession to the convention in 2013.[7]

The main impediment to Japan's becoming a party to the convention was that it would require a change in attitude of the legal system towards child custody rights. 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.

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 Kingdom 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.[8]

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."[9] However, this statement is contradicted by several Japanese news media sources which report arrests involving parental abduction in Japan.[10][11] 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.[12] The case concerned a couple who were separated but not divorced so the abducting father held joint custody.[13] 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[5] and rarely intervene in matters such as visitation and child support which are seen as private.[14] Furthermore, it is rare for a nation to extradite one of its own citizens to another country for alleged parental abduction.[5][15] On the other hand, a foreign national father, trying to re-abduct his child in Japan by force,[12] may face arrest and possible criminal prosecution irrespective of his custodial status in the child's home country.[12] 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.[16] 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.[17]

International parental abduction statistics

U.S. Department of State - Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction - Compliance Report 2010 (pdf) (4,3 MB)

Megumi Nishikawa, a senior writer for the Mainichi newspaper, stated in an editorial that there were nearly 200 cases of such disputes in Japan.[18]

The United States Department of State 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.[19]

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.[20]

Australia

According to the Australian Embassy in Japan in 2010 there have been thirteen abductions to date. As of January 2007, there were at least thirteen cases of unresolved parental abduction to Japan.[21] Australia, unlike other nations, does not maintain a national database of parental abduction cases.[21] Moreover, media restrictions on family law and juvenile matters mean that many cases go unreported.[21]

Canada

As of March 2008, there are 29 cases of unresolved parental child abduction to Japan, the highest of any destination country from Canada.[22] 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.[23]

France

As of December 2009, there are 35 cases of international parental child abduction of French nationals related to Japan.[24][25]

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.[26] For a yearly figure, The Guardian 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.[27] 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.[28] 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.[29]

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.[30] The ten countries with the highest incidence of reported abductions in 2008 are Mexico (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.[31] 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.[32] An additional 29 cases involve American parties in Japan with one parent denied access to his or her child.[32] However, according to December 2009 figures, there appeared to be 79 child abduction cases involving 100 children.[33] 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[34] 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.[34]

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.[24] 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.[35][36][37][38]

International marriage and divorce in Japan

Japan is experiencing a dramatic increase in the number of international marriages 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.[39] This is despite the fact that the foreigners represent only about 1.22% of the total population in Japan.[40] An estimated 20,000 children are born to Japanese-foreign couples every year.[5] 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.[41] 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.[42] 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.[35][36][37] Foreign parents face an additional obstacle in maintaining access due to their immigration status which may be revoked after a divorce.[35]

Divorce, custody and visitation in Japan

Main article: Family law 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.[43] This is a shift from 1970 which awarded custody to mothers only in 50 percent of cases.[44] 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.[43]

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.[45] 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."[46] 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.[47] 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.[48]

The typical 'deal' in Japan is that, upon divorce, the father pays nothing for the child's support, and he never sees his child.[49] 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.[5] 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."[50] 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.[12] 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.

Consequently, court-mandated visitation in Japan only occurs with the cooperation of the custodial parent.[11] 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.[51] 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.[45] 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.[45]

In the 82 signatory countries[52] 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,[9][53] and lack of enforcement of court orders.[54][55]

Koseki issue

Main article: Koseki

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.[56] 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.[57] 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.[58] The confusion is increased by the fact that completely uncontested divorces are performed not by a court, but by the spouses simply filling out a family registry form at the city hall.[59] 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.[60] 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.[61] Furthermore, it is also wrong, but common, 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.[62]

The Hague Convention

Hague Abduction Signatories
Hague Abduction Signatories

Japan is one of two G8 members, the other being Russia, and the only G7 nation,[63] 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.[64] Most of the 82 signatory countries[52] are Western nations of Europe, North America, South America and Australia while most countries in Africa, Asia and the Middle East are not signatories of the convention.[65] 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.[66] However, the Convention has an important section that is NOT limited to children abducted after ratification, its Article 21, which lets parents in another country apply "to make arrangements for organising or securing the effective exercise of rights of access" and get help from both countries' governments to do that. Article 21 cases are not just for abducted children and are subject to few or none of the conditions or defenses that can block a petition for return of the child.[64]

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.[67] 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.[10] 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.[5]

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 University 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.[68] 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.”[69]

In 2008, Japan Today had reported that, by 2010, Japan would become a signatory of the convention.[70] However, this report later proved to be inaccurate.[71] The 2009 election saw the Democratic Party of Japan gain power. Yukio Hatoyama 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.[4][72]

However Hatoyama resigned as Prime Minister before any such change was implemented. Commentators noted that signing the treaty would not retroactively affect previous child-abduction cases in Japan.[73]

In a similar joint symposium held at the American Embassy in May 2009, embassy officials from Canada, France, the UK, and the US issued a joint statement calling on Japan to sign the Hague Convention.[74] Following the Christopher Savoie incident (see "Specific Cases"), a near identical statement was reissued in October 2009 with additional support from Australia, Italy, New Zealand and Spain.[74] In a 2009 statement, Foreign Minister Katsuya Okada said that Japan was considering being a signatory,[75] stating that "we are approaching the matter with an open mind, but we must also take public opinion into account."[76]

One major obstacle, noted by Jeremy Morley, an attorney who had worked on parental child abduction cases in Japan, was that Japanese family law did not align to the parameters of the Hague Convention and that new legislation would need to be introduced for Japan's signature and ratification.[77] Hans van Loon, Secretary General of the Hague Convention on Private International Law, pointed 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."[78] Yuko Nishitani, an associate professor at Tohoku University and director of the Hague Academy of International Law, agreed, 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."[79] An official of Ministry of Foreign Affairs stated, "The Japanese government's position is 'not interfering in civil affairs.'"[80]

At the time, any introduction of prerequisite legislation which would alter Japanese family court law would take at least a year in committee discussion and draft legislation could have been introduced in 2011 at the earliest[81] or possibly later which would delay signature of the treaty to later than 2011 to allow for legislative change.[82] Providing administration and judicial authorities to implement effective enforcement measures as required by the Convention presented the main impediment for Japan signing the convention.[83] The Japanese government eventually established a Vice-Ministerial-level work group to study the proposal as to whether to ratify the Convention.[84][85][86]

Domestic violence

Main article: 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.[75] According to an editorial from the Asahi Shimbun, a significant number of parental abduction cases filed in North America and Europe involve Japanese wives,[76] and of those wives a number of them claim their husbands were abusive.[87]

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." 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.[87] 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.[88]

Domestic violence is also an issue of concern amongst signatory countries.[89] 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".[90]

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."[91] 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.[92]

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.[89] Another concern regarding signing the treaty is the possibility that implementing it would, in practice, "tear the child away from a parent", as a primary caregiver would be unable to accompany the children to countries which have criminalized parental abduction.[87] 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."[10]

United Nations Convention on the Rights of the Child

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:[93]

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.

Film

From the Shadows is a documentary film about child abduction by parents and relatives in Japan.[94] Produced and co-directed by David Hearn and Matt Antel,[95][96] 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.[97][98]

See also

References

  1. ↑ "http://amview.japan.usembassy.gov/e/amview-e20100122-85.html". American View. United States Department of State. Winter 2010. Retrieved 12 April 2011. External link in |title= (help)
  2. ↑ Lamanna, Mary Ann; Anges Riedmann (2008). Marriages & families: making choices in a diverse society. Cengage Learning. p. 437. ISBN 978-0-495-39092-3. Retrieved 12 April 2011.
  3. ↑ "Japan signs and ratifies the 1980 Hague Child Abduction Convention". HCCH. 24 January 2014. Retrieved 24 January 2014.
  4. 1 2 Stars and Stripes. "Parents hope Japan's new leaders OK abduction treaty". Retrieved 12 October 2009.
  5. 1 2 3 4 5 6 Justin McCurry (15 September 2008). "Family: Custody battle in Japan highlights loophole in child abduction cases". The Guardian. London. Retrieved 22 October 2009.
  6. ↑ Matsutani, Minoru, "Hague pact no answer to in-country custody fights", Japan Times, 14 May 2010, p. 3.
  7. ↑ "Japan votes to adopt child abduction treaty". BBC. 22 May 2013. Retrieved 19 June 2013.
  8. ↑ Geoff Newiss and Lauren Fairbrother (2004). "Child abduction: understanding police recorded crime statistics" (PDF). Home Office. Retrieved 28 October 2009.
  9. 1 2 Kyung Lah; Aaron Cooper; Saeed Ahmed; Carolina Sanchez (29 September 2009). "American jailed in Japan for trying to reclaim his children". CNN. Retrieved 23 October 2009. Our two nations approach divorce and child-rearing differently. Parental child abduction is not considered a crime in Japan.
  10. 1 2 3 COLIN P. A. JONES (20 October 2009). "Signing Hague treaty no cure-all for parental abduction scourge". The Japan Times. Retrieved 22 October 2009. A few years ago a Japanese father was arrested for doing the same thing as Mr. Savoie — grabbing his kids at their school.
  11. 1 2 Mari Yamaguchi (7 October 2009). "Divorced fathers in Japan, cut off from kids, turning to courts to seek access, change system". Retrieved 22 October 2009.
  12. 1 2 3 4 Margaret Conley (13 October 2009). "Parents Fight Losing Custody Battle in Japan". ABC. Retrieved 24 October 2009.
  13. ↑ "判例検索システム＞検索結果詳細画面". Supreme Court of Japan. Retrieved 24 October 2009.
  14. ↑ Ito, Masami, "Returning to Japan with kids was only safe option, two mothers say", Japan Times, 14 May 2010, p. 3.
  15. ↑ "International Child Abductions: A Manual for Parents". Foreign Affairs and International Trade Canada. Government of Canada. 22 October 2009. Retrieved 25 October 2009. Many civil law countries – in contrast with common law countries such as Canada (with the exception of the province of Quebec), Australia, the United States and the United Kingdom – will not extradite their own nationals. Nearly all the countries of Latin America and Europe are civil law countries. Experience has shown that foreign governments are often unwilling to extradite anyone for parental child abduction.
  16. ↑ "2002(A)No.805". Where a person of Dutch nationality, who has been living separately from his Japanese wife, forcibly takes his two-year and four-month-old daughter, who has been in the custody of his wife, from the hospital where she is staying, for the purpose of taking her away to the Netherlands, such an act of the Dutch person shall constitute an offense of kidnapping for the purpose of transporting the kidnapped person to a foreign country, and cannot be justified even if consideration is given to the fact that the Dutch person intended to take his daughter back to his home country as one of the persons having parental power over her.
  17. ↑ In the Best Interests of the Court: What American Lawyers Need to Know About Child Custody and Visitation in Japan", Colin P.A. Jones "The crime in question was abduction or enticement for purpose of removing from Japan (国外移送目的略取及び誘拐 kokugai iso mokuteki ryakushu oyobi yukai). KEIHO [PENAL CODE], art. 226. This provision of the Penal Code was amended in 2005 so that it covers kidnapping and abduction from any country not just Japan." pg 258, Note, the author warns on page 169 of a possible bias in the paper due to the fact that the author has lost the custody of his children in Japanese court.
  18. ↑ "International child custody issues call for Japan to sign Hague Convention". There are estimated to be nearly 200 cases of such disputes, including 50 with the United States, 36 with Canada and 35 each with France and Britain.
  19. ↑ United States State Department. "International Parental Abduction — Japan". Archived from the original on 2007-06-02. Retrieved 2007-06-18.
  20. ↑ "Rapid Increase in Child Abductions to Japan". Embassy of the United States, Japan. U.S. Department of State. Winter 2010. Retrieved 10 March 2011.
  21. 1 2 3 Lou Robson (6 January 2007). "Wedding spelt the end". The Courier-Mail. Queensland Newspapers. Retrieved 1 November 2009.
  22. ↑ William Crosbie (20 May 2009). "International Parental Child Abduction Canada-Japan". Assistant Deputy Minister for Consular Services and Emergency Management Branch from Foreign Affairs and International Trade Canada. Government of Canada. Retrieved 22 October 2009.
  23. ↑ "Remember the Children". Wood's is just one of the 31 active cases of child custody and family distress that the Canadian Embassy is currently dealing with in Japan, a sharp increase from the 21 active cases a year earlier.
  24. 1 2 Justin McCurry (27 October 2009). "Savoie's choice: abduct or fight?". GlobalPost. Retrieved 27 October 2009.
  25. ↑ "Foreign Ministry sets up division on child custody issue". JapanToday. Kyodo News. 2 December 2009. Retrieved 3 December 2009.
  26. ↑ "International parental child abduction". Working with Japan. Foreign & Commonwealth Office. 2009. Retrieved 22 October 2009.
  27. ↑ Pidd, Helen (9 August 2009). "500 children a year abducted from UK". The Guardian. London. Retrieved 5 May 2010. Almost 500 children were abducted from the UK and taken abroad illegally last year, according to figures released to the Guardian under the Freedom of Information Act. There were 336 cases of child abduction reported to authorities in the UK in 2008, an increase of 20% on 2005 figures. These cases involved an estimated 470 children last year. More children were taken illegally to Pakistan than any other country (30 cases in 2008), followed by the USA (23), Ireland (22) and Spain (21). Other abduction hotspots included Australia, France and Egypt.
  28. ↑ Pidd, Helen (9 August 2009). "500 children a year abducted from UK". The Guardian. London. Retrieved 5 May 2010.
  29. ↑ Akbar, Arifa (3 February 2003). "Family collusion 'fuels child abduction in ethnic minorities'". The Independent. London. Retrieved 5 May 2010. Parents of abducted children faced problems from their communities in the UK and from the abductor's family members in their home countries, as they often colluded in abductions, they said. According to the Reunite International Child Abduction Centre, women from ethnic minorities do not take legal action because they are afraid of bringing dishonour to the family by disobeying their husbands. The centre said these children – who are taken back to the parents' country of origin and often forced to marry – accounted for about 43 per cent of child abduction cases in 2001.
  30. ↑ Labi, Nadya (2009). "The Snatchback". The Atlantic (November). Retrieved 22 October 2009.
  31. ↑ Assistant Secretary of State for Consular Affairs (April 2009). "Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction" (PDF). United States Department of State. Retrieved 25 October 2009.
  32. 1 2 "Dad Released From Japanese Jail in Custody Fight". ABC. Retrieved 27 October 2009.
  33. ↑ MINORU MATSUTANI (3 December 2009). "Child custody division set up". The Japan Times. Retrieved 3 December 2009.
  34. 1 2 "Spirited Away: Japan Won't Let Abducted Kids Go". ABC News.
  35. 1 2 3 Wayne Hunter (8 July 2008). "Consigny, Jones & Tanase, "Children Lost in Japan"". The Foreign Correspondents' Club of Japan. Retrieved 27 October 2009.
  36. 1 2 Agence France-Presse (14 July 2008). "Divorced parents in Japan fight for rights". The Strait Times. Retrieved 27 October 2009.
  37. 1 2 AFP (14 July 2008). "FEATURE: Japan fails to safeguard parental rights on divorce". Taipei Times. Retrieved 27 October 2009.
  38. ↑ MINORU MATSUTANI (10 October 2009). "Custody laws force parents to extremes". The Japan Times. Retrieved 27 October 2009.
  39. ↑ "Yearly trend of marriage according to nationality". Statistics. Ministry of Health and Labour. Retrieved 26 October 2009.
  40. ↑ "Statistical data". Office of Statistics. Retrieved 26 October 2009.
  41. ↑ "Yearly trend of divorce according to nationality". Statistics. Ministry of Health and labour. Retrieved 26 October 2009.
  42. ↑ "Statistics of divorce which involve custody". Statistics. Japanese Ministry of Health and Labour. Retrieved 27 October 2009.
  43. 1 2 Michael Hassett (7 August 2007). "Losing custody: the odds". The Japan Times. Retrieved 22 October 2009.
  44. ↑ http://www.csmonitor.com/2009/1015/p06s11-woap.html. Missing or empty |title= (help)
  45. 1 2 3 Jeremy D. Morley. "Japanese Family Law — or The Lack Thereof!". International Family Law. Retrieved 23 October 2009.
  46. ↑ "Comparing Japanese and American Approaches to Parental Rights: A Comment on, and Appreciation of, the Work of Takao Tanase". Retrieved 5 March 2015.
  47. ↑ https://docs.google.com/gview?a=v&q=cache:iQzSLQWpYsoJ:www.law.berkeley.edu/centers/ilr/pub_sho_sato_2005/ellman.pdf+Rights:+A+Comment+on,+and+Appreciation+of,+the+Work+of+Takao+Tanase&hl=en&gl=uk&pid=bl&srcid=ADGEESi9k35Ll_iYrbbJ97zNN4T-d4sjIlHhv1r-zFfBqpw_C23LsnyRpx6uDqk6SWZRV7kcwtoorpYs7ekSqtBqQ4ZnD40ZhSRJCJ9-lG5t2RLMrc9wzVG60G9RGc0_TttJEoh6GJ9V&sig=AFQjCNGIrKdcmGhtBTHf8F5_MNNp2S6lXA
  48. ↑ Masami Ito (14 May 2010). "CUSTODY OR ABDUCTION?: Experts divided on signing 'parental kidnapping' treaty". The Japan Times. Retrieved 19 November 2012.
  49. ↑ "International Family Law Firm". Retrieved 5 March 2015.
  50. ↑ "Civil Code(Part IV and Part V)". Japanese Law Translation. Ministry of Justice, Japan. 1 April 2009. Retrieved 25 October 2009.
  51. ↑ Tommy Thompson (26 March 2004). "Japan Needs International Child Support Law". The International Herald Tribune/Asahi Shimbun. Retrieved 25 October 2009. Japanese law enforcement and social service agencies unfortunately seem unable to enforce custody and support orders — even those laid down by their own courts, let alone from another country's courts.
  52. 1 2 Hague Conference (5 September 2010). "Status Table". CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION. Hague Conference on International Law (HHCH). Retrieved 5 September 2010.
  53. ↑ Dyer, Clare (23 May 2003). "Contact ban for hated father". London: The Guardian Unlimited. Retrieved 18 March 2007.
  54. ↑ Dyer, Clare (2 March 2005). "Fathers get raw deal on child access, say MPs". London: Guardian Unlimited. Retrieved 18 March 2007.
  55. ↑ Collier, Richard; Sally Sheldon (1 November 2006). "Unfamiliar territory". London: The Guardian. Retrieved 24 March 2007.
  56. ↑ Takehiko Kambayashi (15 October 2009). "Released, American father still faces uphill child custody battle in Japan". Christian Science Monitor. Retrieved 27 October 2009. "After divorce, dual custody of children is not allowed here," says Reichi Miyahara, the leader of fathers' rights group, who supports single-parent families in Fukuoka. He adds that the nation's family registry system, known as koseki, does not allow placement of a child on two people's registry.
  57. ↑ "国際結婚，海外での出生等に関する戸籍Ｑ＆Ａ 渉外戸籍のホームページ". Ministry of Justice, Japan. Retrieved 27 October 2009.
  58. ↑ "戸籍と親権は連動する？". , Japan. Retrieved 24 June 2010.
  59. ↑ Fuess, Harald (2004). Divorce in Japan: Family, Gender, and the State, 1600-2000. Stanford University Press. p. 105. ISBN 9780804779173. Retrieved 13 February 2013. Article 61 suggested a simple procedure for uncontested divorces: "Following mutual deliberations [soho jukudan] and approval by the go-between and relatives, the registration official [locho] should be notified of the divorce."
  60. ↑ 戸籍法施行規則
    第三十五条 　次の各号に掲げる事項は、当該各号に規定する者の身分事項欄にこれを記載しなければならない。
    五 　親権又は未成年者の後見に関する事項については、未成年者
  61. ↑ Civil Code of Japan
    Article 766.　If parents divorce by mutual consultation, the matter of who will have custody over a child and any other necessary matters regarding custody is determined by that consultation. If there the consultation does not reach agreement, or if there is no consultation, the family court shall determine custody.
    Article 819.　If parents divorce by mutual consultation, they must determine in such consultation which parent shall have parental rights.
    (2)　In the case of a judicial divorce, the court determines which parent shall have parental rights.
  62. ↑ Civil Code of Japan
    Article 840. If there is no one to become a guardian of a minor pursuant to the provisions of the preceding article, the family court shall appoint a guardian of a minor on the application of a minor ward or his/her relative, or other interested person. This shall also apply in a case where any vacancy in the position of a guardian of a minor occurs.
  63. ↑ Joshua Williams (18 October 2009). "Japan needs two years before signing Hague Convention". Examiner. Clarity Digital Group LLC. Retrieved 24 October 2009. Japan is the only country in the G7 that has not signed the agreement
  64. 1 2 "Full Text". CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION. Hague Conference on International Law (HHCH). 25 October 1980. Retrieved 26 October 2009.
  65. ↑ Arifa Akbar (3 February 2003). "Family collusion 'fuels child abduction in ethnic minorities'". The Independent. London. Retrieved 22 October 2009. Most non-European countries do not adhere to the Hague Convention, an international agreement that obliges sovereign states to return abducted children to the country of habitual residence.
  66. ↑ "Meanwhile, because the Hague is not retroactive, parents like Navy Cmdr. Paul Toland are also pushing U.S. and Japanese officials to devise a task force to help resolve the approximately 80 open cases involving more than 100 Japanese-American children documented by the State Department."
  67. ↑ Mata Press Service (20 September 2005). "BC Dad fights Japan to get his kids back". Asian Pacific Post. Retrieved 1 November 2009.
  68. ↑ "Japan remains safe haven for parental abductions". He observed that it was probably not necessary for Japan to join the Hague Convention when it took effect in 1980 because of the low number of international marriages at the time.
  69. ↑ "Think of the Children". At a recent conference on child abduction held at the Canadian Embassy in Tokyo, a spokesman said the Ministry wasn’t opposed to the convention, but that “at present there is not enough support from Japanese nationals."
  70. ↑ "Japan inches toward signing Hague treaty on child abductions". Japan Today. Retrieved 22 October 2009.
  71. ↑ "Japan to sign Hague Treaty on Kids". 26 May 2008. Retrieved 23 October 2009.
  72. ↑ "Yukio Hatoyama — The Interview". Japan Times Herald. Blogger. Archived from the original on 26 July 2009. Retrieved 25 October 2009.
  73. ↑ Ito, Masami, "Few options for left-behind parents even if Hague OK'd", Japan Times, 29 December 2011, p. 3.
  74. 1 2 "Following the Symposium on International Parental Child Abduction". 21 May 2009. Retrieved 31 October 2009.
  75. 1 2 Mari Yamaguchi (16 October 2009). "Japan urged to solve global child custody disputes". The Associated Press. Retrieved 24 October 2009. Tokyo has argued that signing the convention may not protect Japanese women and their children from abusive foreign husbands, but Foreign Minister Katsuya Okada told reporters Friday that Japan is considering signing the convention.
  76. 1 2 The Asahi Shimbun (21 October 2009). "EDITORIAL: Child abduction in Japan". asahi.com. The Asahi Shimbun Company. Archived from the original on 25 October 2009. Retrieved 24 October 2009.
  77. ↑ Charlie Reed (4 August 2009). "Overseas custody rights: American parents struggle to reunite with children in Japan". Stars and Stripes. Retrieved 24 October 2009.
  78. ↑ "Think of the Children".
  79. ↑ "Think of the Children". Yuko Nishitani, an associate professor at Tohoku University and director of the Hague Academy of International Law, says 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.
  80. ↑ "Arrest of American accused of abducting own kids raises diplomatic concerns". "The Japanese government's position is 'not interfering in civil affairs,' a representative of the ministry's International Legal Affairs Division said.
  81. ↑ "Govt unlikely to sign child custody pact for 2 years". In the wake of an increasing number of such cases, the government intends to speed efforts to sign the Hague Convention on the Civil Aspects of International Child Abduction. However, relevant legislative measures are unlikely to be submitted to the Diet until 2011 at the earliest, according to the sources.
  82. ↑ "国際結婚の紛争解決条約、国内法整備に２年必要". Yomiuri Online. The Yomiuri Shimbun. 18 October 2009. Retrieved 23 October 2009. 中央当局を設置する国家行政組織法改正や、裁判所が返還命令を出すための新たな特別法の制定が必要だとされ、法務省が法制審議会（法相の諮問機関）に諮問すると、審議に「１年は必要」（同省幹部）となる。このため、条約締結の前提となる関連法案提出は早くても１１年の通常国会、国会承認も１１年以降となる可能性が高まっている。
    which via babelfish translates to: When it assumes that enactment of new special law because national administrative organization method amendment and the courthouse where the central authorities are installed make return order is necessary Ministry of Justice inquires laws conference (the advisory organ of legal phase), “1 years (the same economical staff) with become necessary” in deliberation. Because of this, as for related bill submitting which becomes prerequisite of the treaty conclusion being quick, ordinary diet session of 11 years, the possibility also the National Diet approval being after 11 has increased.
  83. ↑ "Japan remains safe haven for parental abductions" (PDF).
  84. ↑ "Joint Press Statement by the Ambassadors and Representatives of Australia, Canada, Colombia, the European Union, France, Hungary, Italy, New Zealand, Spain, the United Kingdom, and the United States of America". Australian Embassy, Tokyo. Commonwealth of Australia. 9 February 2011. Retrieved 10 March 2011.
  85. ↑ Charlie Reed; Chiyomi Sumida (25 February 2011). "Congressman continues to push Japan to sign child abduction treaty". Stars and Stripes. Retrieved 10 March 2011.
  86. ↑ Ito, Masami, "Hague treaty seeks to balance rights of kids, parents", Japan Times, 7 June 2011, p. 3
  87. 1 2 3 Masami Ito (14 May 2010). "Experts divided on signing 'parental kidnapping' treaty". The Japan Times. Retrieved 20 February 2011.
  88. ↑ "The Japan Times - News on Japan, Business News, Opinion, Sports, Entertainment and More". The Japan Times. Retrieved 5 March 2015.
  89. 1 2 Merle H. Weiner. "Half Truths, Mistakes, and Embarrassments" (PDF). University of Oregon. Retrieved 24 October 2009. One such issue is that mothers who abduct often claim to be fleeing for reasons of safety. In the pre-meeting questionnaire, many states, including the United states, recognized that domestic violence is frequently raised as an issue by the respondents in Hague proceeding
  90. ↑ Special Commission (November 2006). "CONCLUSIONS AND RECOMMENDATIONS OF THE FIFTH MEETING OF THE SPECIAL COMMISSION TO REVIEW THE OPERATION OF THE HAGUE CONVENTION OF 25 OCTOBER 1980 ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION AND THE PRACTICAL IMPLEMENTATION OF THE HAGUE CONVENTION OF 19 OCTOBER 1996 ON JURISDICTION, APPLICABLE LAW, RECOGNITION, ENFORCEMENT AND CO-OPERATION IN RESPECT OF PARENTAL RESPONSIBILITY AND MEASURES FOR THE PROTECTION OF CHILDREN (30 OCTOBER – 9 NOVEMBER 2006)" (PDF). Hague Conference on Private International Law. Retrieved 24 October 2009. the trend already noticed by the Fourth Special Commission in 2001 that approximately 2/3 of the taking parents were primary caretakers, mostly mothers, had confirmed itself, giving rise to issues which had not been foreseen by the drafters of the Convention.
  91. ↑ Merle H. Weiner (2000). "International child abduction and the escape from domestic violence" (PDF). Fordham Law Review;. Retrieved 24 October 2009.
  92. ↑ "Questionnaire concerning the practical operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction" (PDF). Hague Conference on Private International Law. Retrieved 22 October 2009.
  93. ↑ "Convention on the Rights of the Child". Office of the United Nations Commissioner for Human Rights. Retrieved 21 April 2010.
  94. ↑ http://search.japantimes.co.jp/cgi-bin/fl20080826zg.html. Missing or empty |title= (help)
  95. ↑ http://search.japantimes.co.jp/cgi-bin/fl20080812zg.html. Missing or empty |title= (help)
  96. ↑ http://www.necn.com/Boston/World/2009/10/17/Pressure-upped-on-Japan-over/1255807603.html. Missing or empty |title= (help)
  97. ↑ "CNN.com Video". CNN. Retrieved 5 May 2010.
  98. ↑ fromtheshadowsmovie.com

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