08 October, 2008 17:59

LONDON - Japanese courts should give more support to foreigners who are seeking access to their children living in the country, according to a British father who is seeking the return of his two daughters to England.

Shane Clarke says Japanese courts need to do more for the hundreds of foreign parents whose estranged Japanese spouses have taken children away from their home country and returned to Japan.

Once back in Japan, family courts will generally award custody to the Japanese parent in these cases even when she or he (it is normally the mother) has deliberately taken her or his child away from its home country.

And, more than likely, the foreign father will not be able to persuade the judge to give joint custody or have the child returned to its home country. The courts will generally side with the Japanese mother who already has custody in an effort to avoid any further disruption to the child's life.

This is the current situation Briton Shane Clarke finds himself in, and he would like the British government to press Japan so that its courts properly acknowledge the access rights of foreign fathers.

Britain is calling on Japan to improve the rights of foreign fathers and the Japanese government says it is looking at legal moves to improve the situation. But Tokyo disputes claims that the courts are instinctively biased toward Japanese mothers.

Clarke's problems began in January when his wife took his daughters, aged 1 and 3, to Japan on a long holiday to visit her family in Ibaraki Prefecture. She claimed her mother was terminally ill.

As far as Clarke was aware there were no major problems in the four-year marriage -- although his wife did not like him seeing his other child by a previous marriage. But when he went out to see his wife in May, he realized something was wrong.

She acted strangely and, in the end, she told him she and the children would not be returning to Britain.

With hindsight, he realizes it was a ''very well planned child abduction.'' His wife had taken all the necessary papers with her to Japan and, like many others before her, had decided to go back home because the courts were likely to side with her.

He claims his wife has refused mediation and access to his children. She has now started divorce proceedings.

Clarke, 38, who lives in central England, has since been given an order from the British courts which declares that the children are ''habitually resident'' in Britain, and he claims his wife would be prosecuted under English law if she returned.

However, the family judge in Ibaraki Prefecture has told Clarke informally that if his case went to court, he would not order that the children return home or give Clarke access.

The judge explained that it was ''complicated'' and he did not have the powers to enforce an order coming from a British court, Clarke says.

Critics claim this habitual refusal from family courts stems from the fact that Japan has not yet ratified the Convention on the Civil Aspects of International Child Abduction.

In effect, this requires signatory states to order the return of children to their home countries in cases like this and provide police and legal assistance. Many major developed countries have signed up to the convention.

Clarke argues that aspects of Japanese law should already support foreigners in his circumstances. But even if Japan did sign up to the convention, he wonders whether Japanese courts would actually abide by their obligations, given what he feels is the ''institutional racism'' in the judicial system.

Parental abduction is not recognized as a crime in Japan.

© 2008 Kyodo World News Service