In Japan, tough laws and a patriarchal cultural overwhelmingly see mothers granted sole custody after a divorce – 80% of the time, according to official figures – meaning foreign fathers rarely see their children again. Is Japan a country in which international child custody cases are decided on discriminatory grounds?
My Woman from Tokyo
Frenchman Emmanuel de Fournas has spent years battling for access to his daughter after his Japanese ex-wife moved back to Japan.
Despite winning a court order in France and filing a case under The Hague Convention on the Civil Aspects of International Child Abduction in September 2014, he is still fighting for the right to see his daughter.
“I thought I could benefit from the clear rules of The Hague Convention, but… they aren’t respected in Japan. I’ve lost everything, my savings, my job.
His experience is not unusual.
Hague Convention is Not Big in Japan
I’ve written about international child custody issues in Japan before, specifically Japan’s compliance with abducted children under the Hague Convention.
Many have long suspected that Japan is not really compliant with The Hague. Japan signed the Convention in 2013 – and many suspect it did only because of international pressure.
For example, Japan has expanded Hague Convention exceptions making some of them mandatory and requiring Japanese courts to consider more things when defenses are asserted.
Japanese courts also can consider if it’s 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 is also a problem 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.
Lovers in Japan
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,” said Nahoko Amemiya, a lawyer for the Tokyo Public Law office.
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.”
With opinion divided on what causes the most trauma to children, the longer a child is separated from one parent, the more reluctant authorities are to intervene, citing a “principle of continuity”.
“It’s not that Japanese courts favor the Japanese parent, it’s that they favor the ‘kidnapper,'” who is living with the child, said John Gomez, founder of the group Kizuna, which advocates for parents separated from their children.
Japan’s government defends its record, saying most of the 81 cases filed under The Hague Convention since 2014 have been settled.
There are some signs of change: a panel of experts met in June to discuss new ways to enforce court orders, as well as the issue of joint custody and changes to the law.
The Japan Times article is here.