Japan: The Aftermath of Japan’s Ratification of the Hague Convention on Child Abduction:


An Investigation into the State Apparatus of the Modern Japanese Family The Aftermath of Japan’s Ratification of the Hague Convention on Child Abduction: An Investigation into the State Apparatus of the Modern Japanese Family

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Author: Takeshi Hamano, University of Kitakyushu, Japan
Published: August 4, 2017
Citation: Hamano, T. (2017). The Aftermath of Japan’s Ratification of the Hague Convention on Child Abduction: An Investigation into the State Apparatus of the Modern Japanese Family. IAFOR Journal of Asian Studies, 3(1). https://doi.org/10.22492/ijas.3.1.03


Abstract

The aim of this paper is to discuss the ways in which a recent international dispute has evoked an inquiry about the family ideology of modern Japan. Initially, it explains a recent issue on Japan’s ratification to the Hague Convention on child abduction. In April 2014, the Japanese government finally ratified the Hague Convention on child abduction, an international Convention to resolve disputes on international parental child abduction. However, skepticism toward Japan still remains, because, in order to put the international Convention into practice, Japan has not proceed to radical family law reform at this stage. To recognize this incongruent situation, this paper explains that the present Japanese family law is incompatible with the principle of this international Convention. Although the Convention premises shared parenting in the grant of joint child custody even after divorce, Japanese family law keeps the solo-custody approach, which is necessarily preserved in order to maintain Japan’s unique family registration system: the koseki system. Arguing that the koseki system, registering all nationals by family unit, is an ideological state apparatus of Japan as a modern nation state since the nineteenth century, this paper concludes that recent international disputes regarding parental child abduction in Japan inquires about a radical question on national family norm of Japan.

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USA, Japan: Japan signed abduction treaty but for ‘left-behind’ parents that doesn’t mean much


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James Cook is a Minnesota man in a custody battle with the Japanese mother of his children. (James Cook,/Courtesy of James Cook)

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James Cook wants his four children home in Minnesota. His estranged wife, Hitomi Arimitsu, says they want to stay with her in Japan. And so they have been going around in circles through the courts for almost three years.

If child custody battles are messy, expensive affairs when the parents live in the same country, they’re exponentially more so when the parents live in different countries and are fighting over where the children should live and which place should have jurisdiction.

Japan signed The Hague Abduction Convention, the treaty that governs international child abductions, in 2014 but is struggling to put its provisions into effect.

That is where the Cook family is caught.

“For three years of their lives, these kids have not had their dad. Kids need their dad, they need both their parents,” Cook said via Skype from his home in Minnesota. “I can’t describe to you the hell that this has been.”

Cook, who studied Japanese in college, and Arimitsu, a Japanese woman who attended a university in Minnesota, had lived in the United States for almost the whole time they had been together. But three years ago this week, with their marriage on the rocks, Cook agreed that Arimitsu could take their four children to Japan for the summer — with a notarized agreement that she would bring them back.

When that ended, they agreed that Arimitsu and the children would stay on a little longer, while Cook, who had lost his job, looked for work.

By the end of the year, Cook realized his family wasn’t coming back.

In the past two years, the pair has been going through acrimonious court battles in Osaka and in Minnesota, and each has won some and lost some rounds.

As is common in such cases, they have wildly different versions of events and focus on the rounds they’ve won.

Cook says an order in Minnesota last month, which found Arimitsu in contempt of court and upheld two orders from December that she return the four children to their father, should stand. In that case, the judge awarded Cook temporary sole legal and physical custody of the children.

But Arimitsu, through her lawyer Tomoko Kamikawa, said that because the Osaka High Court in February rejected Cook’s request to have the children returned, there is no valid return order under The Hague Convention. Cook has appealed this ruling to Japan’s Supreme Court.

The children do not want to return to the United States, Kamikawa said.

The crux of the problem, Cook and other “left-behind parents,” say, is that Japan — unlike other signatories — has no way of following through on its Hague commitments.

“Enforcement is one of the key problems,” said John Gomez, an American who heads the Kizuna Child-Parent Reunion group in Tokyo and is helping Cook. “Every country has to create implementation legislation to enforce their orders, but Japan basically cannot enforce their orders.”

The legislation that Japan passed to implement The Hague provision forbids the use of force, and stipulates that the children must be retrieved from the premises of the parent who has taken them. The “taking parent” must be present. The enforcement officers are basically bailiffs who are more used to repossessing washing machines than extracting children from emotionally charged situations.

This essentially means that enforcement involves an official at the gate calling for the children to come out, while the taking parent is inside with them.

“All of this was completely predictable,” said Colin Jones, a law professor at Doshisha University in Kyoto and an expert on child custody law in Japan. “Without dealing with enforcement methods, it was just a matter of time until a case like the Cook case happened.”

The U.S. government has expressed misgivings about Japan’s implementation of The Hague convention provisions. “The [State] Department is concerned about Japan’s ability to quickly and consistently enforce return orders,” it said in its 2017 annual report on international child abductions.

But the Japanese government says that it is making good progress.

“It’s been only three years since Japan entered into The Hague Convention,” said Hajime Ueda, director of The Hague Convention Division in the Foreign Ministry. “It takes time because every case is unique. From that point of view, we have been doing quite a good job.”

Eight children involved in five cases have been returned to the United States since Japan signed The Hague Convention, Ueda said.

The convention was a politically charged issue in Japan, with a substantial amount of opposition to signing it, so even becoming a signatory in 2014 was a major achievement. Experts note that it took other signatories some time to change domestic legislation to allow enforcement of The Hague Convention provisions; Germany, for instance, took about five years.

The U.S. Embassy in Tokyo is dealing with about 70 child abduction cases, 42 of them filed since Japan signed the convention, and 10 of those seeking the return of children to the United States.

The other cases just involve access — another thorny issue in Japan, where there is no concept of joint custody.

The prevailing wisdom in Japan says it is upsetting or disruptive for children to continue to see both parents after a marriage breaks down, so one parent — almost always the mother — gets full custody and the other parent usually has two hours’ access to the children each month.

“Visitation is the most problematic thing with Japan. A lot of cases about return orders are actually about access, about the noncustodial parent being able to maintain a relationship with their child,” said Jones of Doshisha University.

According to Gomez’s research, about 3 million children in Japan have lost access to one parent after divorce in the past 20 years – about 150,000 a year.

Children age out of the system at 16, so time is on the taking parent’s side, according to people involved in custody disputes.

And nothing will change for international custody cases until the domestic system that favors sole custody changes, experts say.

This is difficult because Japan has a family registry system, which operates as the foundation for all documentation. A person can be on only one family registry so after a divorce, children are usually removed from their father’s family registry and placed on their mother’s.

“The parent who becomes noncustodial loses all of their parental rights and effectively becomes a stranger to the child,” said Bruce Gherbetti, another “left-behind” parent who is advocating for change through the Kizuna group.

Until joint custody becomes commonplace in Japan, it will be difficult, if not impossible, to make it the norm in international cases, Gherbetti said.

For now, that leaves Cook, who has found work with a medical device company, sitting in Minnesota, having no contact with his children.

“I’m sad we are in this mess and I’m concerned about my children,” he said. “This is the heartbreak of being a ‘left behind.’ ”

An earlier version of this article misspelled the name of Hitomi Arimitsu. The story has been updated.

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Ineffective Access Rights in Japan under Hague Abduction Convention


May 21, 2015
Source: Internationalfamilylawfirm

There is great misunderstanding about the ability of a parent outside Japan to obtain access to a child in Japan through the Hague Abduction Convention.

The Hague Convention contains only one provision (Article 21) concerning visitation. That Article states little more than that an application to make arrangements for organising or securing rights of access may be presented to the Central Authorities of Contracting States.

Japan’s statute implementing the Convention into Japanese law states that an application may be filed under the Convention for visitation only (a) with respect to a child who is located in Japan, (b) who was, immediately before the visitation became unable to be made, a habitual resident of another Hague country, (c) by a person who is entitled to such visitation under the laws of said state other than Japan.

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Essentially what all of this means is that no Hague Convention access application can be made in Japan if the child is habitually resident in Japan at the time the alleged right of access has been violated.

This is confirmed by the Japanese Ministry of Foreign Affairs’ own explanation of the visitation provisions of the Convention. This states that an access claim in Japan should be dismissed unless the applicant is entitled to visitation or contact with the child under the laws of the state where the child held his or her habitual residence immediately before the visitation could not be made.

This means that whenever a child is taken to Japan and becomes habitually resident there within the meaning of Japanese law, no access claim can be made under the Hague Convention.

The parent outside Japan will then have no right to see the child except by bringing a regular custody case in a Family Court in Japan and must expect that,  even if such a claim is ultimately successful , it will (a) almost certainly be limited to visitation in Japan itself (visitation outside Japan has never been ordered by a Japanese court, to my knowledge), (b) will probably be limited to a few hours a month, (c)  will be probably be strictly supervised in a courthouse or other specific location,  and (d) will most likely be unenforceable in Japan.

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If a child living outside Japan is lawfully relocated to Japan (whether by court order or parental agreement) the habitual residence of the child will shift to Japan relative quickly after the relocation.

At that point it will be unclear whether the parent outside Japan “is entitled” to visitation under the law of Japan. If there is not even a foreign court order requiring such access there will be no such right in existence. If there was a prior foreign order that purported to make provision for such access, the parent living outside Japan will be entitled to commence a court proceeding in the Family Court in Japan to ask the court to recognise and enforce the foreign custody order.  However, the other parent in Japan will be entitled to ask the Japanese court to assume full custody jurisdiction, since the child will be habitually resident there, and to issue a new custody order that would exclude any provision for contact by the other parent. Alternatively, the parent in Japan will be able to start a new custody case in Japan at any time after the child is settled in Japan and to ask the court there to give unlimited sole custody to such parent.

Accordingly, any expectation that Japan’s accession to the Hague Convention allows parents outside Japan to secure access to their children lawfully living in Japan is quite mistaken.

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Hong Kong accepts the accession of Andorra, Korea, Morocco, Russia and Japan to the Child Abduction and Custody


October 17 , 2014

Hong Kong (HKSAR) – The Child Abduction and Custody (Parties to Convention) (Amendment) Order 2014 made by the Chief Executive under Section 4 of the Child Abduction and Custody Ordinance was gazetted today (October 17).

The Amendment Order serves to add the Principality of Andorra (Andorra), the Republic of Korea (Korea), the Kingdom of Morocco (Morocco), the Russian Federation (Russia) and Japan to the list of Contracting States in the Child Abduction and Custody (Parties to Convention) Order (Chapter 512A), so as to implement the Hague Convention on the Civil Aspects of International Child Abduction (the Convention) between the Hong Kong Special Administrative Region (HKSAR) and the aforementioned States.

Hong Kong Children

A spokesperson for the Labour and Welfare Bureau said, “The Convention provides an effective international mechanism for the swift return of children wrongfully removed from their place of habitual residence to another Contracting State in violation of custodial rights. The Convention is now in force in 92 Contracting States.”

He pointed out that the Central People’s Government accepted the accession of Andorra, Korea, Morocco and Russia to the Convention on behalf of HKSAR in November 2013. With Japan ratifying the Convention in January 2014, the Convention has also entered into force between HKSAR and Japan.

In accordance with the requirements of the Convention, the Amendment Order specifies February 1, 2014 and April 1, 2014 as the respective dates on which the Convention came into force between the HKSAR and Andorra, Korea, Morocco and Russia; and between the HKSAR and Japan.

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Parental Child abduction – Swiss court returns boy under Hague pact


October 2 , 2014

Source: thejapannews

An American father living in Switzerland was ordered by a Swiss court in late September to return his child to the Japanese mother residing in Japan under the Hague Convention, The Yomiuri Shimbun has learned.

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The 8-year-old boy has already returned to Japan.

The Japanese mother asked the Swiss government for the return of her child via the Japanese Foreign Ministry, claiming that her American husband took the boy to Switzerland without her consent.

There have so far been 17 cases in which parents have applied to the ministry for assistance regarding the return of their children based on the convention, which took effect in Japan in April. The Swiss case is the first in which a return order was issued by a foreign court with the ministry’s assistance.

The Hague Convention on the Civil Aspects of International Child Abduction aims to settle disputes over the parental custody of children in such cases as failed international marriages. It stipulates that a parent who takes a child aged under 16 overseas without the other parent’s consent must, in principle, return the child to the country where he or she was living. As of May, 92 countries were parties to the convention.

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In the Swiss case, the couple and their child had been living in Japan. After the convention took effect in Japan in April, the American father took the boy to Switzerland. The Japanese mother applied for ministry assistance in August to recover her child.

The ministry then asked the Swiss central authorities for their cooperation on the matter. The Swiss side identified where the boy lives and aided the mother in judiciary proceedings. Ultimately, a Swiss court ordered the American father to send the boy back to Japan.

In July, a Japanese woman living in Britain was ordered by a British court to return her child to the father residing in Japan under the Hague Convention. In this case, the Japanese father directly asked Britain to make judicial arrangements for the return of the child and did not request assistance from the Japanese Foreign Ministry.

Parental Kidnapping Rescue abducted children recovery

Even before the convention took effect in Japan, it was possible to directly ask a foreign country to help make judicial arrangements for the return of a child. In the latest case, Japan’s accession to the convention made it possible for the Japanese Foreign Ministry to provide assistance, which helped realize the boy’s return to Japan from Switzerland.

According to the ministry, of the 17 applications seeking assistance for the return of children that were filed in the six-month period from April 1 to Oct. 1, nine cases involve parents who asked for help with the return of children who were taken away from foreign countries to Japan.

The aforementioned case involving the Japanese couple is not included among those 17 cases. There have also been 56 cases in which parents applied for ministry assistance to see their children.

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Parental Child Abduction to Japan – ‘Racist’ cartoon issued by Japanese ministry angers rights activists


17 September , 2014

Source: scmp.com and CrnJapan.net 

Pamphlet issued by Tokyo to Japan’s embassies in response to Hague convention is criticised for depicting a foreign man beating his child.

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Human rights activists in Japan have reacted angrily to a new pamphlet released by the Ministry of Foreign Affairs that they claim is racist and stereotypical for depicting white fathers beating their children.

The 11-page leaflet has been sent to Japanese embassies and consulates around the world in response to the Hague Convention on the Civil Aspects of International Child Abduction going into effect in Japan on April 1.

Tokyo dragged its feet on ratifying the treaty, which broadly stipulates that a child should be returned to his or her country of habitual residence when they have been taken out of that country by a parent but without the consent of the other parent.

But manga-style images of foreign fathers beating children and Japanese women portrayed as innocent victims have raised the hackles of campaigners, both those fighting discrimination against foreigners and non-Japanese who have been unable to see children who have been abducted by Japanese former spouses.

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“It’s the same problem with any negotiations in which Japan looks like it has been beaten,” said Debito Arudou, a naturalised Japanese citizen who was born in the United States and has become a leading human rights activist.

“After being forced to give up a degree of power by signing the Hague treaty, they have to show that they have not lost face and they try to turn the narrative around,” he said. “It’s the same as in the debate over whaling.

“The Japanese always see themselves as the victims, and in this case, the narrative is that Japanese women are being abused and that the big, bad world is constantly trying to take advantage of them.”

Arudou is particularly incensed by the cover of the publication, which shows a blond-haired foreigner hitting a little girl, a foreign father taking a child from a sobbing Japanese mother and another Japanese female apparently ostracised by big-nosed foreign women.

“It is promoting the image that the outside world is against Japanese and the only place they will get a fair deal is in Japan,” said Arudou.

The rest of the pamphlet takes the form of a conversation between a cartoon character father and son, but with the storyline showing the difficulties of a Japanese woman living abroad with her half-Japanese son.

Arudou says the publication then “degenerates into the childish” with the appearance of an animated doll that is the father figure’s pride and joy, but also dispenses advice.

“As well as promoting all these stereotypes, why are they not talking about visitation issues for foreigners whose half-Japanese children have been abducted by their ex-wives?” asked Arudou.

Several foreigners who have been unable to see their children for years have already contacted Arudou to express their anger, with a number of US nationals saying they would pass the document onto lawmakers.

Arudou’s post on the issue on his website has also attracted attention, with commentators describing the pamphlet as “racist propaganda”.

“This is disgusting,” one commentator posted. “Pictures are powerful, more powerful than words. And the only time I’ve ever seen anything remotely like this is when I did a search for old anti-Japanese propaganda.

“Of course, that was disgusting too, but it was wartime!”

Another added, “What a pathetic advert for an ‘advanced’ country.

“As for the text – not wasting any more bandwidth on such utter racist, xenophobic, patronising, paranoid nonsense.”

Other links related to the case: http://www.mofa.go.jp/files/000034153.pdf and http://www.crnjapan.net/english-mofadoc.pdf

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NSU Law Professor Recognized by U.S. Department of State


August 29 , 2014

Source: PRnewswire.com

Tim Arcaro recognized for his efforts in assisting parents of abducted children.

FORT LAUDERDALEDAVIE, Fla., Aug. 25, 2014 /PRNewswire/ — NSU Shepard Broad Law Center Professor and Associate Dean Tim Arcaro, J.D., has been formally recognized by the U.S. Department of State for his work on the Hague Convention Attorney Network. Arcaro’s work involved representing parents attempting to recover children who have been internationally parentally abducted from South Florida, or who may be targets of international parental abduction.

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Beth Payne, director, Office of Children’s Issues, United States Central Authority for the Hague Convention on Civil Aspects of International Child Abduction issued a certificate of appreciation thanking Dean Arcaro for generously donating his legal services in assisting parents and for contributing to the effective operation of the Hague Convention in the United States. Arcaro also received commendations from Patricia Hoff, legal assistance coordinator for the U.S. State Department, Bureau of Consular Affairs, U.S. Central Authority for the Hague Convention on Civil Aspects of International Child Abduction.

Dean Arcaro’s participation in the Hague Convention Attorney Network underscores his commitment to addressing this fundamental human rights issue and to the South Florida community,” said Jon Garon, JD., dean of NSU’s Law Center. “Parental abduction is a growing issue in the U.S. and there is a tremendous need for attorneys with training and commitment similar to Tim’s. I applaud him and each of our faculty members here at the Law Center who give of themselves in service to our community. Tim’s work reflects the fundamental values our faculty, student, and staff embrace at NSU and the Shepard Broad Law Center.”

The Department of State’s Office of Children’s Issues actively seeks lawyers who are willing to participate and assist parents involved in international family law and child abduction cases. By joining the Department of State’s Hague Convention Attorney Network, attorneys provide the critical assistance necessary to navigate through the legal system with a view toward obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access. More information on the program can be obtained by visiting http://bit.ly/1wmRwjJ .

Arcaro is a graduate of the Thomas M. Cooley Law School. He has been admitted to the Florida and Pennsylvania bars, as well as the United States District Court for the Middle District of Pennsylvania.

Arcaro has been a member of the Law Center’s faculty since 1994. After serving as a clinical instructor in the Civil Law Clinic, he was appointed Director of the Children and Family Law Clinic in 1998. He became director of the Master of Science in Health Law Program in 2003, and served in that capacity until being appointed director of the Master of Science in Education Law Program in 2005. Professor Arcaro teaches both online and on-site courses, including Administrative Law, Professional Responsibility, International Human Rights, and Immigration Law.

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Arcaro has lectured extensively on professional responsibility, domestic violence, child advocacy, and developing clinical legal education programs. In addition to memberships in local, state and national bar associations, Arcaro also maintains professional memberships in numerous legal, clinical and educational associations, such as the Education Law Association, International Society for Technology in Education, National Institute of Trial Advocacy, and the Association of American Law Schools Clinical Legal Education section. He has served on the Florida Legal Aid Corporation’s Executive Board of Directors, the [Florida] Governor’s Task Force on Domestic Violence, and the Florida Coalition against Domestic Violence Legal Clearinghouse. Arcaro has received many awards in recognition of his service to both colleagues and the community, among them: the 2007 Faculty Professionalism Award from the Florida Bar Standing Committee on Professionalism; Pro Bono Lawyer of the Year, from the Broward County Guardian Ad Litem Program; Pro Bono Law Firm of the Year, from the Broward Legal Aid Service, Inc.; and Pro Bono Recognition from the Broward Lawyers Care (Broward County Bar Association).

About the Shepard Broad Law Center: Nova Southeastern University’s Law Center offers a rigorous traditional academic program in three-year day and four-year evening versions, as well as dual-degree programs. Additionally, NSU Law offers three online Master of Science degrees in law in the areas of education, employment, and health. NSU Law prides itself on preparing graduates to make a smooth transition from the classroom to the courtroom or boardroom. Lawyering Skills and Values (LSV)-Every student completes a four-semester LSV sequence that combines traditional legal reasoning, writing, and research with an introduction to lawyer interviewing, counseling, negotiating, mediating, advocating, and other critical skills in a simulated law firm experience. For more information please visit http://www.nsulaw.nova.edu/

About Nova Southeastern University: Situated on 314 beautiful acres in Ft. Lauderdale, Florida, Nova Southeastern University (NSU) is a dynamic fully accredited research institution dedicated to providing high-quality educational programs at all levels.  NSU is a not-for-profit independent institution with 27,000 students. NSU awards associate’s, bachelor’s, master’s, specialist, doctoral and first-professional degrees in a wide range of fields. NSU is classified as a research university with “high research activity” by the Carnegie Foundation for the Advancement of Teaching, and it is one of only 37 universities nationwide to also be awarded Carnegie’s Community Engagement Classification. For more information, please visit www.nova.eduCelebrating 50 years

 

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