Shane Clarke had no reason to be suspicious when his wife took their two children to Japan to see their ill grandmother in January.
The couple had married four years earlier after meeting online, and settled down with their daughters, aged three and one, in the west Midlands. Clarke, they agreed, would join his family in Japan in May for a holiday, and they would all return together.
Last week, however, he faced his wife and her lawyer in a Japanese courtroom, uncertain if he would ever see his children again. When his wife left the UK, Clarke now believes, she never had any intention of returning with him, or of letting her children see him.
« From the moment I met her at Narita airport I knew something was wrong, » Clarke told the Guardian before a custody hearing in Mito, north of Tokyo. « I soon realised she’d played me like a grand piano. The whole thing had been orchestrated, » he claims.
Clarke, a 38-year-old management consultant from West Bromwich, has gone to great lengths to win custody. The Crown Prosecution Service said his wife could be prosecuted in the UK under the 1984 child abduction act.
However, he can expect little sympathy from Japanese courts, which do not recognise parental child abduction as a crime and habitually rule in favour of the custodial – Japanese – parent.
Japan is the only G7 nation not to have signed the 1980 Hague convention on civil aspects of child abduction, which requires parents accused of abducting their children to return them to their country of habitual residence. He is one of an estimated 10,000 parents, divorced or separated from their Japanese spouses, who have been denied access to their children. Since the Hague treaty came into effect, not a single ruling in Japan has gone in favour of the foreign parent.
Campaigners say Japan’s refusal to join the treaty’s 80 other signatories has turned it into a haven for child abductors.
The European Union, Canada and the US have urged Japan to sign, but Takao Tanase, a law professor at Chuo University, says international pressure is unlikely to have much impact. « In Japan, if the child is secure in its new environment and doesn’t want more disruption, family courts don’t believe that it is in the child’s best interest to force it to see the non-custodial parent, » he said.
Japanese courts prefer to leave it to divorced couples to negotiate custody arrangements, Takase said. Officials say the government is looking at signing the Hague treaty, though not soon.
« We recognise that the convention is a useful tool to secure children’s rights and we are seriously considering the possibility of signing the convention, but we’ve yet to reach a conclusion, » said Yasuhisa Kawamura, a foreign ministry spokesman.
« We understand the anxieties of international parents, but there is no difference between the western approach and ours. »
Clarke’s two custody hearings this week did not go well. An interpreter arranged by the foreign office failed to materialise. The British embassy in Tokyo provided him with a list of alternative interpreters but said it could offer no more help.
The judge was forced to postpone his ruling, but Clarke is convinced he will never see his daughters again.
« We are talking about two British citizens, and no one will help me. The message our government is sending out to foreign nationals is that it’s perfectly all right for them to commit a crime on British soil, and as long as they leave the country quickly enough, they’ll get away scot-free. »
The rise in the number of parental child abductions has been fuelled by a dramatic increase in marriages between Japanese and foreign nationals. According to the health and welfare ministry, there were 44,701 such marriages in 2006, compared with 7,261 in 1980, the vast majority between Japanese and Chinese, Koreans and Filipinos. An estimated 20,000 children are born to Japanese-foreign couples every year. Though Japan does not keep an official count, there are 47 unresolved cases of US children being taken to Japan – only Mexico and India are more popular destinations – and 30 involving Canadian citizens. British officials are dealing with 10 cases, a foreign office spokeswoman told the Guardian, including that of Shane Clarke.
Un article de Dora Tauzin, paru dans le journal Asahi (édition du soir) du 21 février 2008
Dora Tauzin（ドラ・トーザン） ／ フランス人国際ジャーナリスト
On the 2nd of July 2008, the French President of the European Union has announced its priorities for the forthcoming six months to the Ambassadors and Heads of Mission of the 27 member countries of the European Union.
With regard to Japan, according to European sources, the French presidency has announced the consular issue of Japan’s failure to respect parental visitation rights with their children as one of the four top priorities.
France must deal, together with other European countries, the US and Canada, with the problem of visitation rights with the children of divorced bi-national couples residing in Japan.
Around 20 French citizens are denied this right. Even when a judge decides provides visitation rights, the police do not enforce these judicial decisions. Often rather than uphold the judicial decisions, Japanes law enforcement will violate the judicial decision and often arrest the parent endeavoring to have his visitation right respected, inappropriately making false accusations that the foreign parent is being a stalker, or that he/she is menacing the public order.
According to European sources, given the absence of commitment from the Japanese administration, the French President of the European Union has invited the 27 members of the European Union to exert pressure on the Japanese government as this problem can potentially harm the image of Japan in the international community.
Enfants binationaux et respect du droit de visite après un jugement au Japon : une priorité de la Présidence française pour les six prochains mois
Le 2 juillet 2008, la France a présenté ses priorités pour les six prochains mois de la présidence française de l’Union Européenne aux Ambassadeurs et Chefs de mission des 27 pays membres.
De source européenne, en ce qui concerne le Japon, la Présidence française a placé les affaires consulaires en matière de non-présentation d’enfant parmi ses quatre priorités,
La France doit faire face, comme tous les autres pays de l’Union européenne, les Etats-Unis et le Canada, au problème du respect du droit de visite après un jugement de divorce dans le cas d’enfants de couples binationaux en résidence au Japon.
Plus d’une vingtaine de ressortissants français voient actuellement leur droit de visite bafoué malgré un jugement rendu au Japon. Quand bien même ce droit de visite a été légiféré par le juge des affaires familiales, il n’est pas appliqué et la police n’est d’aucun recours, si ce n’est au contraire pour interpeller le parent qui insiste pour le respect de ses droits au titre qu’il trouble l’ordre public.
En l’absence d’un quelconque engagement de l’administration japonaise à résoudre ces problèmes, la Présidence française a invité, selon nos sources européennes, les 27 pays membres de l’Union Européenne à exercer toute pression utile pour convaincre le gouvernement japonais que ce problème peut nuire à l’image du Japon sur la scène internationale.
Source : http://afe-asie-nord.org/?p=294
Le réseau japonais Oyakonet a organisé un symposium rassemblant de nombreuses associations de parents privés de leur enfant. Nous diffuserons d’autres vidéos de cet événement très prochainement sur ce site.
Voici aujourd’hui une petite vidéo de la manifestation qui a suivi le symposium.
The Foreign Correspondents’ Club of Japan
Press Conference, Thierry Consigny, Colin Jones & Takao Tanase
15:00-16:00 Monday, July 14, 2008
(The speech and Q & A will be in English)
“Children Lost in Japan”
An intense debate is occurring now in the media in Japan, at the Japanese Federation of Bar Associations (Nichibenren), and within the Japanese political system about adapting Japanese civil law to changes within Japanese society and to fulfilling Japan’s international legal obligations.
The latest government survey shows that over 160,000 parents in Japan cannot meet their children after a separation or divorce, and only in the best of cases are able to meet their children after the children reach adulthood. Foreign parents of dual citizenship children are no exception, with an estimated 10,000 or more such children falling into this situation. Foreign parents face additional obstacles in maintaining access with their children because of inequitable Japanese immigration policies, making it difficult for foreign parents to continue to legally live and work in Japan after a separation or divorce.
Today, 18 Japanese NPO and volunteer associations have tied up with left-behind parent associations from the U.S., UK, Canada, and France to lobby Japanese parliamentarians about changing the law.
We are at a very crucial moment where key LDP and DJP members are acting on these issues, with Japan having declared it will sign the Hague Convention on the Civil Aspects of International Child Abduction as early as 2010, and adapt Japanese law to comply with this treaty beforehand.
The following experts will contribute to a press conference at the FCCJ on July 14:
- Colin Jones, Attorney at Law (New York Bar), Law Professor of Doshisha University Law School;
- Takao Tanase, Attorney at Law, registered with JFBA (Japan Federation of Bar Associations,
Nichibenren), Committee on Family Law Legislation, and Law Professor of Chuo University Law School;
- Thierry Consigny, elected member of the Assembly for French Overseas Nationals (AFE) for Japan and North Asia.
Note from Thierry Consigny: Attendance is restricted to FCCJ members but hand-outs will be posted on this website.
Hard work begins once Japan signs child-abduction treaty
By COLIN P.A. JONES
If my own mailbox is any indicator, the Internet is buzzing as international family lawyers, family rights activists and others share an exciting piece of news: Japan is reportedly planning to join the Hague Convention on the Civil Aspects of International Child Abduction! Perhaps Japan’s days as a haven for international parental child abduction are numbered. Perhaps Japanese courts will stop giving the judicial seal of approval to one parent’s selfish desire to erase the other from a child’s life. Fingers crossed.
Though one could question the timing of the very low-key announcement two months before the Hokkaido G8 Summit the Japanese authorities should be commended for taking what will be a big step forward in the sphere of private international law. The concerted pressure of diplomats from a number of countries (including several G8 nations) who have pushed Japan on this issue for years, and the efforts of activists often parents who have lost any hope of being part of their own children’s lives but have continued to speak up for the benefit of others must also be acknowledged and
I must confess to having been skeptical that this would happen so soon (it could happen as early as 2010) if at all. I will be glad ecstatic to be proved wrong. However, I do not plan to crack open any champagne until an abducted child is actually returned home. International treaties, like marriages and childbirth, are events to be celebrated, but all of the hard work comes afterward.
By entering into the convention, Japan will be agreeing with other signatory countries that children wrongfully brought to Japan even by a parent will be promptly returned. One key aspect of the convention is that it limits the role of judges in these decisions. Rather than deciding whether remaining in Japan is in a child’s best interests (which has almost always been the conclusion of Japanese judges in abduction cases), in cases under the convention judges are limited to deciding whether a child has been brought from his or her home country « wrongfully » (in violation of foreign law or court orders, without the consent of the other parent, etc.). If the removal is found to be wrongful, absent exceptional circumstances the judge is supposed to order the child’s return. All this is supposed to happen on an expedited basis in order to prevent a new status quo from developing in the child’s living environment.
Two other aspects of the convention are noteworthy. First, signatory countries are obliged to help locate abducted children. This would be a great improvement over the current situation in Japan, where parents who are able to commence what is likely to be hopelessly futile litigation in Japan’s family courts are actually the lucky ones, since this means they at least know where their children are. Less lucky parents have to try and find their children somewhere in the country, often disadvantaged by barriers of language and culture. The act of trying to find or communicate with your own child may even be deemed a form of stalking.
Second, the convention protects rights of access (or visitation, as it is called in some countries). Thus even foreign parents who do not have custody over their children can use the convention to try to preserve contact with children brought to Japan. Courts in some convention countries have been aggressive in interpreting this provision to ensure that even a parent with full custody does not use those rights to frustrate visitation by the other by relocating to a foreign country. Since Japanese courts typically only award visitation if both parents agree, and visitation orders are unenforceable anyway, any improvement in this area would be welcome.
Enforcement of return orders is likely to be the big hurdle for Japan in implementing the convention. Enforcement is an obstacle even in strictly domestic disputes between Japanese parents over child abduction or denial of access. Since family court orders are unenforceable, one wonders what will happen when the first return order is issued by a Japanese judge under the convention. It is, after all, clearly limited to the civil aspects of child abduction it does not require that children be returned by force.
In the U.S. or Canada, whether a case arises under the convention or not, court orders are backed by quasi-criminal sanctions such as contempt. In some states interfering with custody or visitation is itself a criminal offense. Even if it is not, a parent in these countries seeking to enforce access rights or the return of a child can usually call upon the police to help them. In extreme cases intransigent parents resisting enforcement may be arrested or jailed.
In Japan, however, police typically do not get involved in family matters or in the enforcement of court orders in civil matters. The only remedy available to parents with even a whiff of penal sanction involved is habeas corpus (which requires an abducting parent to appear with the child in court), though access to this remedy in disputes between parents has been limited by the Supreme Court.
It seems unlikely that Japan joining the convention alone would change this basic aspect of the country’s legal system, since it would involve the police (and prosecutors) in a vast new area of law enforcement family disputes when only a tiny fraction of such disputes would involve the Hague Convention. Perhaps some enforcement mechanism limited to convention cases will be developed, though it would be an odd (though not impossible) result if parents and children from abroad got a better deal in the Japanese legal system than those actually living in Japan. Furthermore, bureaucratic imperatives being at least as important as actual law in Japan, it is difficult to imagine how the police and prosecutors could ever find it in their interests to be arresting Japanese parents (more often than not mothers) in order to return Japanese children to foreigners.
Thus, if Japan joins the convention, its implementation may develop in one of three ways. First, it may be implemented as it is in other major countries and abducted children will be returned through its procedures great! Or judges will issue return orders that prove impossible to enforce, leaving things largely as they are now. Perhaps convention cases will be given greater access to habeas corpus, which could be an improvement.
A third possibility, however, is that rather than issuing orders they know are unenforceable (or to avoid being seen as favoring foreigners), judges aggressively take advantage of the exceptions in the convention. One of these is that children do not need to be returned if it would « expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. » In some countries this exception is limited to cases where the child would be returned to a war zone, or similar situations.
However, if the reasons used for denying visitation are any indicator excessive present-buying, visitation making the custodial parent ill, etc. are any indicator, the bar for applying the psychological harm exception may end up being low.
Under the convention, another reason for refusing to return the child is if « the child objects and has attained an age and degree of maturity at which it is appropriate to take account of its views. » Since the convention does not specify what this age is, it gives courts a high degree of flexibility.
Thus Japanese courts could continue to reward parental alienation by placing the burden of deciding on children. Getting children to say « I don’t want to see Daddy Mommy » seems to work pretty well for getting a court to deny visitation, so getting them to say « I want to stay in Japan with Daddy/Mommy/Grandma » may work in convention cases too.
I feel like a bit of a wet blanket writing this. Make no mistake, it will be great if Japan actually does join the convention. Whatever help Japanese authorities need in understanding and implementing the convention should be offered unstintingly. Anything which improves the situation of children abducted to Japan is to be applauded. And if joining the convention somehow leads to improvements for the many more Japanese children in strictly domestic cases who lose one parent through judicial action (or inaction), it would be almost revolutionary.
*Colin P.A. Jones is a professor at Doshisha University Law School.*