International Family Law News & Analysis - John Crouch on November 06, 2008

November 06, 2008

This item in the Mainichi Daily News has what may be some news about whether Japan will enter the Hague Convention. The author favors the Convention for very good reasons, but is not completely well-informed about it.

He also quotes a lawyer who makes preposterous claims about child abduction: That 90% of abductors are fleeing from domestic violence or child abuse. (In my experience as a lawyer working on abduction cases, it's more like 1%, and the Convention has exceptions for such cases).

Even more ridiculous is his claim that "when the Japanese women come back to  Japan ... the voice of  the man saying, 'Give me back my child,' tends to be heard louder." Heard louder? It's not heard at all. The Japanese courts and authorities have never given ANYTHING to abduction victims, not even visitation. And abduction victims are not all men, and not all non-Japanese.

Japan would help children of international marriages by signing child  abduction convention.

John Crouch

Original Article

(By Megumi Nishikawa, Expert Senior Writer)

Japanese women from collapsed international marriages who bring their 
children to Japan without their partner's consent are facing charges 
of abduction -- an issue that has highlighted a convention covering 
international child abduction.

The Hague Convention on the Civil Aspects of International Child 
Abduction has been signed by about 80 countries, including in Europe 
and the United States. Under the convention, it is illegal for one 
parent to take a child away from his or her country or residence 
without first settling issues such as custody and visitation rights.

Signatory countries have a responsibility to return children who have 
unilaterally been taken out of the country by one of their parents. 
(There are some exceptions, such as when the child refuses to go 
back.) Japan, however, has not signed the convention, so this rule of 
returning the child does not apply. This has raised strong 
dissatisfaction among foreigners who cannot see their children 
because they have been taken to Japan.

The Ministry of Foreign Affairs and the Ministry of Justice are 
giving favorable consideration to signing the convention, but the 
opinions of experts are split.

Kensuke Onuki, a lawyer familiar with the issue, is opposed to Japan 
signing the convention, based on the viewpoint of Japan protecting 
its own citizens.

"In 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," Onuki says. He says that when the Japanese women come back to 
Japan, they don't bring with them evidence of domestic violence or 
other problems, making their claims hard to prove, and the voice of 
the man saying, "Give me back my child," tends to be heard louder.

Mikiko Otani, a lawyer who specializes in family law, supports Japan 
participating in the convention. The first reason she gives is a 
connection with the U.N. Convention on the Rights of the Child. The 
U.N. committee that monitors how the Convention on the Rights of the 
Child is implemented advises each country to ratify the Hague 
convention as a pact that is integrated with the convention on child 
rights.

Otani adds that joining the convention does not provide only 
disadvantages. There are now cases in which former foreign husbands 
refuse to let their child see their mother, saying that if they let 
their child go to Japan, he or she won't come back. There are also 
cases of mothers setting aside a security deposit of 100,000 dollars 
(about 10 million yen) to bring their children over to Japan.

When couples divorce in Japan, only one side has custody rights, and 
the family view that the child should be handed over to the mother is 
prevalent. Under the Hague convention, however, joint custody is 
maintained as long as domestic violence is not involved, and the 
party not living with the children has visitation rights. This stance 
shakes up the Japanese view of the family, but I think Japan should 
join the convention.

There are the reasons given by Otani, but in addition to that, the 
shape of Japanese society and families is changing largely. For 
example, the rate of men who are taking child-care leave is still at 
a low level but increasing, figures by the Ministry of Health, Labor 
and Welfare show. Division of housework and child-rearing between the 
husband and wife is natural. It is not an age in which one parent 
takes complete responsibility for a child.

If children in international marriages can freely go between the two 
countries of their mother and father, their lives will surely be 
greatly enriched.

Posted by John Crouch on November 06, 2008 in Hague Convention: New Ratifications | Permalink