International child abduction in Japan

International child abduction in Japan
Main article: International child abduction
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[clarification needed].[2] Parental abduction often has a particularly devastating effect on parents who may never see their children again.

Japan, together with most Asian and African countries, is not a signatory 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. Critics of the Japanese legal system say this refusal has the practical effect of facilitating international child abduction. The issue has become a cause for significant concern to signatory nations, the majority of which are Western countries.[3][4][5] The main impediment to Japan's signing the convention is that it would require an overhaul of the Japanese legal system. 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[when?] 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.

Contents

Profile of parental child abduction

An analysis of 99 global cases of international child abduction conducted by International Social Services, a Geneva-based International NGO which specializes in international parental abduction, during the 1970s indicated that 79 sets of parents were from different birth countries and cultural difference between the partners was one of the main elements in the cases. Moreover, the majority (80 cases) of abductor were fathers. In these cases three reasons were often given as the reason for the abduction:

  • a wish to control the cultural upbringing of the child (often expressed by abducting fathers)
  • a fear of loss of the relationship with the child
  • frustration in relation to the arrangement of residence and contact (custody and visitation in U.S.)

By 1990, of the 1,080 applications for the Hague Convention reveal, 70% of abductors were women and the most common reason for these abduction were claims, substantiated or not, that they were fleeing from domestic violence. International Social Services lists following motives in their report for parental abduction.[6]

  • a deep sense of unfairness felt by one parent in relation to the contact (visitation) arrangement
  • hostility between the former or estranged parents resulting in a desire for revenge against the other parent
  • domestic violence
  • fear of the other parent
  • the inability of the parents to communicate
  • the proprietarial nature of some parents' relationships with their children

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.[7]

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."[8] However, this statement is contradicted by several Japanese news media sources which report arrests involving parental abduction in Japan.[9][10] 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.[11] The case concerned a couple who were separated but not divorced so the abducting father held joint custody.[12] 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[4] and rarely intervene in matters such as visitation and child support which are seen as private.[13] Furthermore, it is rare for a nation to extradite one of its own citizens to another country for alleged parental abduction.[4][14] On the other hand, a foreign national father, trying to re-abduct his child in Japan by force,[11] may face arrest and possible criminal prosecution irrespective of his custodial status in the child's home country.[11] 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.[15] 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.[16]

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.[17]

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.[18]

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.[19]

Australia

According to the Australian Embassy in Japan in 2010 there have been thirteen abductions to date.[citation needed] As of January 2007, there were at least thirteen cases of unresolved parental abduction to Japan.[20] Australia, unlike other nations, does not maintain a national database of parental abduction cases.[20] Moreover, media restrictions on family law and juvenile matters mean that many cases go unreported.[20]

Canada

As of March 2008, there are 29 cases of unresolved parental child abduction to Japan, the highest of any destination country from Canada.[21] 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.[22]

France

As of December 2009, there are 35 cases of international parental child abduction of French nationals related to Japan.[23][24]

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.[25] 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.[26] 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.[27] 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.[28]

United States

Further information: International child abduction in the 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.[29] 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.[30] 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.[31] An additional 29 cases involve American parties in Japan with one parent denied access to his or her child.[31] However, according to December 2009 figures, there appeared to be 79 child abduction cases involving 100 children.[32] 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[33] 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.[33]

Other nations

Justin McCurry of the GlobalPost[where?] 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.[23] 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.[34][35][36][37]

International marriage and divorce in Japan

Main article: International marriage (Japan)
See also: Interracial marriage

Japan is experiencing a dramatic increase in the number of international marriages between a Japanese and a non-Japanese.[discuss] 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.[38] This is despite the fact that the foreigners represent only about 1.22% of the total population in Japan.[39] An estimated 20,000 children are born to Japanese-foreign couples every year.[4] 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.[40] 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.[41] 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.[34][35][36] Foreign parents face an additional obstacle in maintaining access due to their immigration status which may be revoked after a divorce.[clarification needed][34]

Divorce, custody and visitation in Japan

Main article: Family law in Japan
See also: Parental responsibility (access and custody)

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.[42] This is a shift from 1970 which awarded custody to mothers only in 50 percent of cases.[43] 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.[42]

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.[44] 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."[45] 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.[46] 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.[6]

The typical 'deal' in Japan is that, upon divorce, the father pays nothing for the child's support, and he never sees his child.[47] 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.[4] 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."[48] 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.[11] 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. [7]

Consequently, court-mandated visitation in Japan only occurs with the cooperation of the custodial parent.[10] 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.[49] 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.[44] 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.[44]

In the 82 signatory countries[50] 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,[8][51] and lack of enforcement of court orders.[52][53]

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.[54] 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.[55] 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.[56] 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.[57] 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.[58] Furthermore, it is also wrong 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.[59]

The Hague Convention

Hague Abduction Signatories
Hague Abduction Signatories
Main article: Hague Convention on the Civil Aspects of International Child Abduction

Japan is one of two G8 members, the other being Russia, and the only G7 nation,[60] 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.[61] Most of the 82 signatory countries[50] are Western nations from Europe, North America, South America and Australia while most countries from Africa, Asia and the Middle East are not signatories of the convention.[62] 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.[63]

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.[64] 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.[9] 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.[4]

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.[65] 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.”[66]

In 2008, Japan Today had reported that, by 2010, Japan would become a signatory of the convention.[67] However, this report has proven to be inaccurate.[68] 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.[3][69]

However Hatoyama resigned as Prime Minister before any such change was implemented.

In a similar joint symposium held in American Embassy in May 2009, embassy officials from Canada, France, the UK, and the US issued a joint statement calling Japan to sign the Hague Convention.[70] Following the Christopher Savoie incident (see "Specific Cases" section bewlo), a near identical statement was reissued in October 2009 with additional support from Australia, Italy, New Zealand and Spain.[70] The latest 2009 statement from Foreign Minister Katsuya Okada says that Japan is considering being a signatory,[71] stating that "we are approaching the matter with an open mind, but we must also take public opinion into account."[72]

The main problem, according to Jeremy Morley, a New York City-based attorney who has worked on parental child abduction cases in Japan, is that Japanese family law is not currently in line with the Hague Convention and that new legislation must be introduced if Japan is to sign it.[73] Hans van Loon, Secretary General of the Hague Convention on Private International Law point 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."[74] Yuko Nishitani, an associate professor at Tohoku University and director of the Hague Academy of International Law, concurs, 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."[75] An official of Ministry of Foreign Affairs stated that "The Japanese government's position is 'not interfering in civil affairs'.[76]

Any introduction of prerequisite legislation which would alter Japanese family court law will take at least a year in committee discussion and draft legislation could be introduced only in 2011 at the earliest[77] and possibly later which mean that passing of legislation and signature of treaty, if ever happen, be later than 2011.[78] Moreover, providing administration and judicial authorities to implement effective enforcement measures as required by the Convention is the main impediment for Japan signing the convention.[79]

Presently, after a meeting with the ambassadors of numerous nations, the Japanese government has established a Vice-Ministerial-level work group to study the proposal set forth by these nations as to whether to ratify the Convention or not.[80][81][82]

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.[71] According to an editorial from the Asahi Shimbun, a significant number of parental abduction cases filed in North America and Europe involve Japanese wives,[72] and of those wives a number of them claim their husbands were abusive.[72][83]

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."[8][dubious – discuss] 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.[84] 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.[85]

Domestic violence is also an issue of concern amongst signatory countries.[86] Large numbers of signatory states report that domestic violence is an issue in the enforcement of the treaty.[86] 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".[87]

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."[88] 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.[89]

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.[86] A possibility that the implementation of the treaty would, in practice, tear the child away from the child's primary caregiver as they are unable to accompany the children to countries which have criminalized parental abduction has been cited as another concern for Japan in signing the treaty.[90] 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."[9]

United Nations Convention on the Rights of the Child

Main article: United Nations Convention on the Rights of the Child
Flag of UNICEF
Flag of UNICEF

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:[91]

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.

Specific cases

The following is a list of cases of international parental abduction in Japan reported in the media. Some cases involve a divorce suit filed in Japan and therefore do not involve the violation of custodial arrangements made in a foreign court or international parental abduction.

  • Patrick Braden – Braden and Ryoko Uchiyama had a relationship but were never married; from that relationship came Melissa Hinako Braden. According to Braden, Uchiyama had been estranged from her family, due to a number of issues including her allegation that her father sexually molested her. After the girl's birth, Uchiyama renewed contact with her family. Wishing to mend that relationship, she made clear her desire to return to Japan. In response, Braden filed for joint custody of Melissa, which was granted by a Los Angeles court. Ten days after the court's decision, Uchiyama left with Melissa for Japan, and obtained a restraining order upon arrival. Braden successfully sued Uchiyama's attorney for malpractice, claiming that the attorney knew Uchiyama’s plan in advance, but his suit against ANA Airlines for allowing her to travel was not successful. He has not seen his daughter since 2006, and continues efforts to see her but after several years says he is not optimistic.[92][93]
  • Yamila Castellanos – Her Japanese husband abducted their two-year-old daughter from Cuba to Japan. Allegedly, he forged Castellanos’ signature to obtain a divorce[where?]. He has denied Castellanos any access to their child, even though she holds legal custody in Cuba. She has been fighting in Japanese court without any results. In 2005 she was denied the visa extension needed to stay in Japan.[74]
  • Shane Clarke — In 2008, the wife of Briton Shane Clarke abducted their two daughters on the pretense of making a trip to Japan with them to see her ill grandmother. When Clarke next saw his wife in Japan, she informed him that would seek custody in proceedings in Japan. He is now convinced that he will never see his children again.[4]
  • Steve Christie – He claims his son was living with him in Japan and that his wife abducted their child and has denied him access. He co-founded the International Association for Parent and Child Reunion in 2009.[94]
  • Michael Gulbraa – In 1996, Michael Gulbraa and Etsuko Tanizaki divorced in Utah, and custody was awarded to Tanizaki, who remarried.[95][96][97][98] Gulbraa alleged that his ex-wife's new husband physically abused their children, which was later found to be unfounded. Tanizaki and her new family then moved to Japan despite warnings[clarification needed] to not leave the country. Gulbraa subsequently sued for custody.[95] Because Tanizaki did not appear in Utah for court, Gulbraa won the case by default in 2002, and was awarded custody of his two sons,[95] but as the children were in Japan, the ruling could not be enforced. The case is further complicated by the fact that Etuko Tanizaki and her new husband are devout members of LDS church while Michael Gulbraa is no longer a member. Gulbraa sued the LDS church, claiming that church officials instructed other church members not to give him information about his children and that LDS church ordained the children against the express wish of the custodial parent. This suit failed in court. In 2006, the youngest son, who says he did not want to be ordained, traveled on his own to the U.S. Consulate in Osaka, and via Tokyo returned to the United States.[95]
  • Alan Kaneda – In 2003, Alan Kaneda and Chiharu Wakao divorced in Hawaii where the state judge ordered a joint custody agreement for their daughter Marina. After more than a year of both parties abiding by the agreement, Wakao moved to Japan without informing her ex-husband. From the safety of Japan she alleges that he was abusive to their daughter, an allegation that was not made while she resided in Hawaii. She has since been indicted on a charge of first-degree custodial interference, a felony.[99]
  • Franchesca Miyara – On July 20, 2006, Puerto Rican Franchesca Miyara's ex-husband Tetsuo Nemoto took their son from day care[where?] without permission and refused to return him. Under extreme duress, Miyara held a kitchen knife under her neck and threatened to kill herself if the husband's parents didn't return their baby. She was arrested and detained for three months in jail[11] before trial, in which Miyara received a six-month sentence suspended for three years.[clarification needed] Despite Miyara's countless efforts to regain Shinta's custody, the Mito Family Court has refused to intervene in the situation, favoring and even aiding the abductor Tetsuo Nemoto. Currently there is a pending arrest warrant for Nemoto in Los Angeles where the couple met and married in 2004. In 2008, Miyara took part in a Tokyo-based LeftBehind-Parents Support Group and has been since then an active member, taking part in public demonstrations and volunteering time to help the cause.
  • Engle Nieman, a Dutch national, re-abducted his one-year-old daughter by force then tried to flee to his home country. He was arrested and charged with ""kidnapping for the purpose of transporting the kidnapped person to a foreign country" (Article 226(1) of the Penal Code)" and was detained for four months.[100] He was later found guilty and was sentenced to two years in prison, suspended for three years.[clarification needed][101] His appeal to the Supreme Court was dismissed.[102]
  • Kurisu Saboi (佐保井 久理須 Saboi Kurisu?, born as Christopher Savoie) – In 2009, Christopher Savoie's arrest in Japan made international headlines. Savoie is an American-born, naturalized Japanese father,[103] who despite Japanese nationality law, retains U.S. citizenship.[104] He divorced his wife, Noriko Saboi, in the US, and[105] the Tennessee family court granted Noriko custody due to her agreeing to remain in the US with Christopher being granted visitation rights.[105] Noriko Saboi agreed as part of her signed divorce agreement to reside permanently with her children in Tennessee.[106] She was allowed as part of the divorce decree to take the children for an extended six-week-visit to Japan every year.[106] While she was supposedly on vacation in Japan, she enrolled the children in school and changed their residency to Japan. She and her children returned to Tennessee, and shortly thereafter she abducted them to Japan. Christopher Savoie was subsequently given full custody of the children by a Tennessee court. He flew to Japan and took his children while his ex-wife was dropping them off at school in Fukuoka. Japanese police arrested him for suspicion of kidnapping as he was attempting to enter the local US consulate with his children but he was never charged or indicted.[105] The case and the issue of parental abduction by Japanese nationals has gained significant publicity in U.S. and many countries.[107] In 2011, a judge in Tennessee awarded Christopher $6.1 million (US) from his ex-wife.[108]
  • Paul Toland – In 2003, U.S. Navy Commander Paul Toland was stationed at Yokosuka Naval Base, Japan.[109] While residing at the Navy housing complex in Yokohama, Etsuko Toland left with their then-9-month-old child, Erika.[73][110] In October 2007, however, Etsuko Futagi Toland committed suicide,[111] and her mother assumed the possession of the child[33][73] with one source stating that she holds custody.[112] Erika is now nine,[113] and Toland alleges that the grandmother has denied him visitation rights while the lawyer who represents the grandmother in U.S. says that Toland has been given supervised visitation opportunities that he does not take advantage of and he owes years of back child support.[109] Toland states that he has spent over $200,000 in attorney fees and other expenses and additionally spent hundreds of hours in Japanese and U.S. courts.[114][115] As of 2011, efforts by Commander Toland have continued to be rebuked by his daughter's grandmother.[113] Commander Toland is the only surviving parent of Erika Toland but is denied access to her. U.S. Congressman Christopher Smith described Commander Toland’s case as an intrafamilial child abduction, since the case does not involve abduction by a parent, but rather an abduction by a more distant relative.[116][117] The Children’s Rights Council has stated that his case “is like the Elian Gonzalez case, but the aggrieved parent is from the United States, not Cuba, and the country blocking the sole surviving biological parent from contact with his child is Japan.”[118]
  • Paul Wong – Wong's Japanese wife Akemi Yokoyama Wong died from cancer after fighting the disease for six years. After her death, Wong relocated to Japan to honour his wife's wish to care for her parents; she was an only child. Her parents were both in poor health, in their 70s, and lived on a small pension. He also wanted their daughter, Kaya Wong, to understand her Japanese heritage. Once he moved to Japan, the grandparents refused to let him see his daughter, who stayed with them while he got settled, alleging that he had abused her.[33][119][120][121] Although the court ruled that the allegation could not be substantiated, they still gave custody to the grandparents.[122] Wong has not seen his daughter since 2007.
  • Murray Wood – The Wood children, Takara, 10, and Manami, 7, were abducted to Japan by Murray Wood's ex-wife, Ayako Maniwa-Wood. A year-long litigation in the Japanese courts ended in failure in 2006.[123][124]

Film

From the Shadows is a documentary film about child abduction by parents and relatives in Japan.[125] Produced and co-directed by David Hearn and Matt Antel,[126][127] 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.[128][129]

See also

References

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  57. ^ 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
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    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.
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  75. ^ "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." 
  76. ^ "Arrest of American accused of abducting own kids raises diplomatic concerns". http://mdn.mainichi.jp/mdnnews/news/20091013p2a00m0na027000c.html. ""The Japanese government's position is 'not interfering in civil affairs,' a representative of the ministry's International Legal Affairs Division said." 
  77. ^ "Govt unlikely to sign child custody pact for 2 years". http://www.yomiuri.co.jp/dy/national/20091019TDY01301.htm. "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." 
  78. ^ "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. http://www.yomiuri.co.jp/politics/news/20091017-OYT1T01224.htm. 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."     [dead link]
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  82. ^ Ito, Masami, "Hague treaty seeks to balance rights of kids, parents", Japan Times, 7 June 2011, p. 3.
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  87. ^ 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)". Hague Conference on Private International Law. http://www.pact-online.org/pdf/concl28sc5_e.pdf. 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." 
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  96. ^ "Utah custody battle involves feds, Japan". http://www.deseretnews.com/article/1,5143,595100628,00.html. 
  97. ^ "Father sues LDS Church over the ordination of his 2 sons". http://www.deseretnews.com/article/1,5143,660205599,00.html?pg=1. 
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  101. ^ "Dutchman gets suspended term for kidnapping". http://search.japantimes.co.jp/cgi-bin/nn20010714b8.html. "In a criminal case believed to be the first of its kind in Japan, a Dutchman was sentenced to two years in prison suspended for three years by the Kofu District Court for kidnapping his daughter in an effort to have her visit his dying father." 
  102. ^ "2002(A)No.805". http://www.courts.go.jp/english/judgments/text/2003.03.18-2002-A-No.805.html. 
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  112. ^ "Text From the Congressional Record". http://www.c-spanarchives.org/congress/?q=node/77531&id=9005768. "The custody of his child is with the maternal grandparents. Again, he has not been able to get his own child back. Commander Toland received poor advice from the Naval Legal Services Officer on how to adjudicate the case." 
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