Japan’s legislature, the National Diet, just enacted a law to force parents to comply with child custody orders. Seems simple enough, but this is a game changer in Japan, as enforcement in Japan has been, and can be in other countries, one of the biggest obstacles to resolving international child custody cases.
Lost in Translation
I’ve written about international child custody cases in Japan before, specifically Japan’s compliance with abducted children under the Hague Convention.
Many have found that international child custody cases in Japan was a Battle Royale. People have long suspected that Japan is not really compliant with The Hague. Although Japan signed the Convention in 2013, a lot of people thought Japan did so only because of international pressure.
For example, people have pointed out that Japan has expanded Hague Convention exceptions making some of them mandatory and requiring Japanese courts to consider more things when defenses are asserted.
There were many Tokyo Stories about Japanese courts considering if it was “difficult for parents to care for a child” – a factor outside the scope of the Convention – which allows Japanese parents to complain about the challenges of being away from home.
Enforcement was always a huge problem in international child custody cases in Japan. Japan cannot enforce their orders. The law Japan passed to implement The Hague forbids the use of force and says children must be retrieved from the premises of the parent who has taken them.
According to 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.
For foreign fathers fighting international child custody cases, “this poses major problems, because they have a different mentality and they can’t comprehend losing custody or the right to visit their child. So, even when foreign parents win their case in a Japanese court, enforcement is patchy.
The State Department’s 2018 report described “limitations” in Japanese law including requirements that “direct enforcement take place in the home and presence of the taking parent, that the child willingly leave with the taking parent, and that the child face no risk of psychological harm.”
Before the revision, the civil implementation law had no clear stipulation regarding international child custody cases. Court officials had to rely on a clause related to asset seizures to enforce court orders, a tactic that was criticized for treating children as property.
The legislation originally required a parent living with a child to be present when the child was handed over to the other parent. With the revision, however, the law allows custody transfers to take place in the presence of just one parent, rather than both.
The revision removes this requirement to prevent parents without custody rights from thwarting child handovers by pretending they are not at home. In consideration of the children’s feelings, the revision requires in principle that parents with custody rights be present during handovers.
The amended law urges courts and enforcement officials to make sure handovers do not adversely affect children’s mental or physical well-being. The new rules will take effect within one year of promulgation.
The National Diet also enacted an amendment specifically to its legislation implementing the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
The new amendment was drafted in response to criticism about Japan’s international child custody cases, mentioned above: that handovers of children from Japan could not be carried out, even though Japan singed the Hague Convention designed to prevent parental abductions of children.
Historically, Japan maintained a system of sole custody. In a large majority of cases, when a dispute reaches court, mothers are typically awarded custody after divorce. It is not unusual for children to stop seeing their fathers when their parents break up.
The civil implementation law was also amended to allow Japanese courts to obtain information on debtors’ finances and property. The change is aimed at helping authorities seize money and property from parents who fail to meet their court-ordered child support obligations and from people who do not compensate victims of crime.
The U.S. Department of State ran to remove Japan from its list of countries said to be showing a pattern of noncompliance with the Hague Convention as a result of the Diet’s new laws. In its annual report, the department noted Japan’s legislative efforts to better enforce the Hague Convention on the Civil Aspects of International Child Abduction, which Japan joined in 2014.
But the department “remains highly concerned about both the lack of effective mechanisms for the enforcement of Convention orders and the sizable number of pre-Convention abduction cases”.
U.S. Rep. Chris Smith, a New Jersey Republican, criticized the department’s removal of Japan from the list:
“It cannot be denied that the Japanese government has done little to help reunite those American children who have been separated from their left-behind parents.”
The Japan Times article is available here.