Friday, June 25, 2010

International Child Abduction and Japan

"POINT OF VIEW/ Yukiko Yamada: Present system may isolate Japanese mothers

"In discussing the Hague Convention on the Civil Aspects of International Child Abduction, we should note that there are cases in which children living in Japan are spirited overseas by their divorced or separated parents.

"I believe Japan should be a party to the convention. But if Japan joins simply because of pressure from the West, it could cause problems.

"Those who support Japan's participation explain that the nature of the convention is "neutral" as it imposes equal obligations to both parents. According to a report, however, about 70 percent of international child abductions involve mothers taking back their children to their native countries.

"Also in the case of Japanese who married foreign nationals, an overwhelming majority of cases involve Japanese mothers taking back their children from the fathers' countries. When we consider this situation, we should tread cautiously.

"Let us consider situations that involve Japanese mothers and American fathers, which are said to be the most common. When Japanese women marry American men and go to the United States, in many cases, they cannot communicate freely in English and are financially dependent on their husbands. When their marriage breaks up and the parents fight over custody of their children, Japanese women are often forced to live on their own without any job to support themselves or friends to whom they can turn to for help.

"Typically, a woman would have to come up with the equivalent of millions of yen to hire a lawyer for a court battle. Even when the women can speak and understand everyday English, it is difficult for them to fight in court. In the United States, some states are said to lack a system of legal aid that pays a percentage of lawyer fees.

"In the United States, parents are usually granted joint custody of their children in a divorce. The parents' right to see their children on a regular basis is also recognized as a matter of course. Even when a court grants custody to the mother, she is usually required by law to allow weekend visitation rights by the father.

"In many cases, Japanese women are unable to return to Japan unless they give up their children. In some cases, they are victims of domestic violence. Joining the convention could mean forcing mothers and children who have escaped to Japan to go back to their abusive husbands' countries. Mothers could be arrested as kidnappers.

"If Japan signs the convention, it needs to change its systems to fulfill its obligations under the convention. In Europe and the United States, the authorities scan bank accounts and pediatric records when they suspect a child has been abducted by a parent. In many cases, the procedure is carried out by the police.

"In Japan, it is not unusual for divorced mothers to go back to their parents' home with their children. But in cases when the mothers return to Japan with their children, the police may be required to intervene. Many Japanese would regard the situation as strange.

"As an exception, the convention provides that a child does not have to be returned when "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."

"But I believe the exceptional case would not be easily recognized. For example, would the exception apply when the wife alone is exposed to domestic violence by her husband? Also, it is difficult to prove a woman's account of her life overseas when she has already left the country.

"In Europe and the United States, where joint custody is the norm, even after couples divorce, parents are usually granted equal rights to see their children. In order to minimize the discrepancy in judicial decisions on child-care and meeting rights among signatories of the convention, I believe Japan will have to shift to a joint custody system from the current regime of single custody.

"As a lawyer, I have handled divorce battles for 30 years. But I know of only a few couples who I thought would be able to properly care for their children through joint custody. In Japan, the parents of divorced couples are often involved in the tug-of-war over how to care for the children.

"Japan needs to come up with a system that matches the actual situation. Ideas worth considering include making joint custody an option or creating a system to adjust the custody issue from the standpoint of children.

"The Japanese government needs to have a system whereby those who enter into international marriages are warned about the risks they could face if they divorce. Support should also be provided to those who divorce.

"Shutting the doors to Japanese parents and children who return home seeking protection and forcing them to return overseas where they could face isolation or worse problems runs counter to the Convention on the Rights of the Child, which calls for the "best interests" of children."

"Yukiko Yamada is a lawyer with the Chiba prefectural bar association and the former chair of the Japan Federation of Bar Associations' Committee on Children's Rights."

By Yukiko Yamada (Asahi Shimbun, 6/24/2010), Link to article (last visited 6/25/2010)

Thursday, June 24, 2010

Surrogacy in Japan


Abstract: "Japan has not yet regulated assisted reproductive technology by law. This lack of rules and regulations leaves to the courts the solution of numerous controversies, and puts patients in a situation of considerable uncertainty about their rights. First, the article uses a Supreme Court case on foreign surrogacy to discuss how courts should decide when there is a conflict between existing laws and the best interest of the child. Then, after describing the current situation and trends of surrogacy in Japan, the article examines a potential problem of coherence in prohibiting surrogacy and at the same time allowing adoption by the intended parents."

Journal: Family Court Review, Volume 48, Issue 3, 2010, Pages 417-430

Link to article

Wednesday, June 23, 2010

Lay Judge System: First Not Guilty Verdict

"CHIBA -- A panel of citizen judges acquitted a man of smuggling stimulants into Japan, setting a precedent for the first non-guilty verdict in a lay judge trial.

"Kikuo Anzai, 59, a company executive from Sagamihara, Kanagawa Prefecture, was acquitted of violating the Stimulants Control Law and the Customs Law at the Chiba District Court on June 22.

"Anzai had been charged with importing stimulants after he was asked by a third person to bring a chocolate can into the country. Prosecutors had demanded Anzai be sentenced to 12 years in prison and fined 6 million yen.

"It marks the nation's first case in which a defendant was acquitted during a lay judge trial. Observers are now focusing their attention on whether prosecutors will appeal the case since none of the past rulings handed down at citizen judge trials has ever been appealed.

"During the trial, whether Anzai had been aware that the chocolate can in his bag contained stimulants became the point of contention. While prosecutors argued that the defendant brought the can into the country after he was commissioned by a person -- who is currently on trial for drug smuggling -- to do so in return for money, his defense counsel claimed that he was unaware of the content of the can as he was entrusted with it as a souvenir for someone else.

"The ruling concluded that the defendant's claim cannot be labeled unreliable, citing the fact that he had complied with a customs request that the can be X-rayed for inspection.

""Based on conventional wisdom, it cannot be recognized that the defendant was unquestionably aware of illegal drugs hidden inside the can," the ruling said.

"Following the decision, the two male citizen judges and three of the four female citizen judges who attended the trial met reporters.

""Although we were presented with the situation that the defendant had faced, there was no solid evidence supporting his guilt," said one of the male citizen judges, a company employee.

"The Chiba District Public Prosecutors Office commented on the ruling following the trial.

""We take the ruling seriously as a result of deliberations among both professional and citizen judges. We believe we did our utmost in making our arguments and presenting the evidence, but we'd like to scrutinize the content of the ruling to see if there were any shortcomings on our part before examining whether to appeal the case," said a representative of the prosecutors office."

By Mainichi Shimbun (6/22/2010), Link to article (last visited 6/23/2010)

Thursday, June 17, 2010

Divorce Ceremonies

"Saori Teshima had long dreamt of the moment. Standing nervously next to her smartly-suited partner in front of friends and loved ones, a sparkling ring appeared before her.

"But contrary to conventional wedding rules, the man at Saori's side did not slip the ring lovingly onto her left hand before sealing their union with a kiss.

"Instead, the pair were handed a hammer - which they held together as they proceeded to smash the ring to symbolise the end of their five-year marriage.

"So goes another divorce ceremony - a bizarre, but increasingly popular ritual among Japanese couples, who choose to end their marriages with the same pomp and ceremony with which they began them.

"From drinking toasts to never seeing each other again, through to symbolic rides in separate rickshaws to reflect the start of a new journey, the ceremonies consist of a string of symbolic acts to mark the definitive end of a marriage.

"Their introduction is timely: more than 251,000 divorces took place in Japan in 2008, a figure blamed partly on the poor economic climate and the end of the salaryman-led family units which used to be the bedrock of much of Japanese life.

"Yet with divorce still something of a taboo in Japanese society, the ceremonies have caught on as a way to publicly formalise the separation in a way that is socially acceptable to friends and family.

"Pioneering the trend for divorce ceremonies is Hiroki Terai, 29, an entrepreneurial former sales man from Japan's Chiba district, who dreamt up the idea after friends of his decided to separate last year.

"Since setting up a company devoted to divorce ceremonies in March, he has been contacted by more than 700 people and conducted 21 divorce ceremonies – costing from £44 to £700 - with a further nine booked.

""A ceremony at the end of a marriage gives the couple and their friends and family the opportunity to gain emotional closure," he said.

""Couples ranging from 21 to 57 have taken part in ceremonies so far. Some wear white dresses, a few opt for cakes, and it's always very moving.

""Everyone deserves a fresh new start. Two couples actually decided to stay together after the ceremony because it made them realise how much they still cared."

"Roland Kelts, a Japan culture expert and lecturer at the University of Tokyo, described how divorce ceremonies were a welcome tool for Japanese to deal with shifting family structures.

""Today's Japanese women are well-educated and worldly," he says. "They watch Sex and the City and wonder why their husbands are not more dynamic.

""And their husbands, having lost the security of lifetime employment and its perks, are wondering why their wives are so impatient. No wonder divorce has risen to a third of Japanese marriages."

"Saori Teshima, 34, and her husband Daigo, 36, who runs a wholesale fish company, has just "celebrated" a divorce ceremony to mark the beginning of their new lives.

"The couple, who have a four-year-old daughter, split last year after Saori discovered her husband was having an affair, and divorce papers are being processed.

"The event began as Saori, dressed in a casual grey dress over jeans and straw hat, and a nervous Daigo, in white shirt and suit, gathered at the gates of a Tokyo temple with a dozen close friends wearing smart clothes and faintly bemused expressions.

"A sombre atmosphere prevailed, as formal greetings were exchanged before the soon-to-be-ex couple was led to two – separate - waiting rickshaws which led them off to "Divorce Mansion", premises owned by Mr Terai which serve as a kind of registry office-in-reverse.

"Following behind on foot, one guest Aoyama Tsuyoshi, 32, a healthcare businessman, said: "I thought it was a joke when I first received the invitation.

""But I soon realised that they were serious as they want to start afresh after their marriage. It is a sad day but I am happy to be here to support them."

""I think the 'divorce ceremony' phenomenon in Japan is healthy - a sign that the country can embrace change as a national 'family,' rather than a cold-hearted 'system' of sclerotic preconceived taboos."

"Upon arrival at Divorce Mansion – a small undercover space with fleuro wall paintings – guests signed a book before being handed a pair of chopsticks as a divorce souvenir symbol of the splitting couple.

"With the couple standing side by side, Mr Terai then declared: "The couple married in May 2005 and they were blessed with a child, however, the husband's business was not going well, also there were relationships issues, so they have decided to divorce.

""I hope that today will mark a new start for the couple. I hope that this ceremony will help them get closure."

"As in a traditional wedding, the climax involved the ring, which was then smashed by the couple with a hammer, prompting polite, if uncertain, applause from the guests.

"Ceremony over, the divorce party headed to a local restaurant – with ex-bride on one table and ex-groom on the other – where a toast of green tea was drunk before a sombre bento box lunch of tempura prawns, rice and miso soup.

"After eating, Saori explained: "My husband found out about divorce ceremonies on the internet and I was against the idea at first. But then I realised it might be a good opportunity to get some closure.

""Today, I am feeling sad but also relieved. I feel a sense of release, like something is finally finished." She added: "I met my husband through friends and we had a very good relationship at first. He was always cheerful and fun to be with.

""We married in a very small ceremony and had a baby girl. But I became suspicious he was having an affair – from smiles over emails on his mobile and fancy chocolate gifts.

""When I confronted him, he confessed. Now the divorce is being processed and we are about to move to new homes."

"For her husband Daigo, the ceremony was less about dwelling on past mistakes and more about creating hope for the future.

""I was very happy to marry her, but over time, we became too used to each other's daily existence," he said.

""It has been very difficult recently, but during the ceremony, I could tell that Saori's mood changed as she smashed the ring – she seemed refreshed and relieved, like a weight had been removed."

"Not everyone was convinced, however.

"Dressed in a black dress that brought to mind funerals rather than weddings, guest Kumiko Takatsu, 35, who works for a bridal company, said: "'I'm not sure this is a good idea.

""It is always very difficult when couples divorce and I don't know if this helps. The atmosphere today was very anxious.""

By Danielle Demetriou (Telegraph, 6/13/2010), Link to article (last visited 6/17/2010)

Monday, June 14, 2010

"Kan Is A Japan Rarity: A Lawyer PM

"In the U.S., the current president, vice-president, first lady and secretary of state are all lawyers. More than 40% of the members of Congress hold law degrees, in fact. Finally, they have some like-minded counterparts at the top of the Japanese government.

"Prime Minister Naoto Kan (pictured) is the first “benrishi” lawyer to be prime minister in Japan since World War II, “benrishi” being licensed to handle patents — such as for his Mahjong machine — and other intellectual property matters.

"Kan’s top aide, Chief Cabinet Secretary Yoshito Sengoku, is a “bengoshi”, or general lawyer. Altogether, the Kan “irregular militia” cabinet has four lawyers, the same number as the final Hatoyama cabinet it replaced, and the new secretary general of the ruling Democratic Party of Japan, Yukio Edano, is also a lawyer.

"That’s quite a sea change from the last administration in the Liberal Democrat Party’s nearly 50-year rule: Taro Aso had no lawyers in his cabinet at all. (...)"

By Peter Landers (Japan Real Time/WSJ, 6/10/2010), Link to article (last visited 6/14/2010)