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)


Anonymous said...

The author forget that "Hague Convention" is to protect the children rights. As long as Japan doesn't allow or enforce proper and significant visitation for the non-custodial, it doesn't matter what system they have (Sole custody or Joint Custody). In addition, Japanese mother will be forced to kidnap their children to Japan instead of a system that could promote the safe exchange of the children between Japan and the other signatories countries. The author also forget to mention that the phenomenon of abduction also happens internally among Japanese couples where obviously the same reason could apply to International marriage. Where are the Japanese courts to protect their own citizens?

State Labor Laws said...

"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."
Thank you for this great knowledge.