The move by the Diet (Japan's parliament) will make Japan the 85th signatory to the 1980 Hague Convention on Aspects of International Child Abduction appears on the surface to be a step in the right direction; however, Japan's final ratification of the treaty is not expected for another year. And during that time a lot can go wrong, including, potentially, women right activists in Japan who wrongfully think that every mother abducting their child to Japan was fleeing abuse. As study after study has demonstrated - both women and men equally cite abuse when they try to have a court sanction their act of kidnapping. The vast majority of these claims are not true.
Is there hope? Yes. But we need to be reminded that there is a long way to go and now is not the time to stop putting pressure on Japan's government to ratify the Hague Convention under any circumstance.
For years, Japan has come under fierce criticism mainly from the U.S. fathers and more recently, American lawmakers, for its reluctance to join the 1980 Hague Convention on the Civil Aspects of International Child Abductions due to cultural differences on how divorce and child custody is viewed and handled in their own homeland. Traditionally, during times of divorce in Japan, the courts grant the mother full sole custody, and the father of the children is permanantly removed from the child's life.
Welcome to insanity Japanese style. In fact, it is estimated that there are well over 300,000 Japanese fathers seeking to reunite with their own chldren who have been removed from their lives by the courts.
Legal experts welcomed Wednesday's decision, but said the treaty would have little effect unless it is accompanied by changes in Japan's domestic law. Courts in Japan routinely favor the Japanese parent – usually the mother – in custody cases involving international marriages.
"I am concerned that Japan won't implement the convention at face value," says Takao Tanase, a law professor at Chuo University in Tokyo. Mr. Tanase points to numerous loopholes in Japanese family law that could be cited to prevent the return of children to their original country of residence, including the suspicion – without any burden of proof – that the child could be exposed to harm or that the mother's welfare could be affected.
"Japanese law and the convention contradict each other, and this can be used as an excuse not to return the child," he said. "The tradition of awarding sole custody was introduced 60 years ago, but Japanese society has changed dramatically since then."
Yuichi Mayama, an upper house politician who has pushed for the legal change, was more optimistic. "This is a meaningful development," he said. "I'm delighted that Japan is finally catching up with the rest of the world."
But he added: "The tradition in Japan is to award sole custody, and that's supported by the law. Unless we change that we won't be able to use the convention properly. We take a very traditional view of the family in Japan, and changing that is going to take time."
The convention is intended to protect children from being taken to another country by one parent without permission in bitter custodial battles. While 89 countries have signed the convention, Japan has been the last member of the Group of Eight major nations holding out. But with Wednesday’s parliamentary approval, Tokyo is expected to ratify the treaty by next March, 2014. (Of the Group of Eight, it should be noted that Germany is consistantly considered a non-complying signatory member of the Hague Convention).
Japanese parliamentarians have long argued that the country’s single-custody tradition is incompatible with the Hague Convention. Unlike in the U.S. and many European countries, Japanese family law doesn’t recognize joint custody of children after divorce, and typically gives the mother full custody.
Like many other countries, Japan has seen an increase in mixed marriages—-a five-fold jump over the past 35 years. While these international marriages only account for about 4% of all marriages in Japan, they have a higher-than-average divorce rate. In 2011, about 40,000 international couples got married. In the same year, about 19,000 divorced, according to Mr. Mayama.
Given that a disproportionate number of American husbands make up the other half of mixed marriages, typical cases that would violate the Hague Convention consist of a divorced Japanese mother flying back to Japan with her child without permission or not allowing her child to return to the U.S. from Japan after a visit, then severing all contact with her American husband. Japanese women married more American men in 2011 than any other nationality except for Korean men, who are mostly permanent residents of Japan.
These international parental child abductions havee landed a number of Japanese mothers suspected of child abduction on the FBI’s most wanted parental kidnappings list. The U.S. State Department says that as of 2011, there are 100 active cases involving 140 American children wrongfully detained in Japan by a parent. However, activist groups in the United States, who have their heart on the pulse of the real situation, have estimated that the number of children wrongfully detained are well over 300 (this is due to the fact that many targeted parents may not have reported their child's abduction to the Department of State since Japan is not a member of the Hague Convention). Additionally, the Asahi Shimbun reported Wednesday that Britain, Canada, and France each claim over 30 cases of their children being wrongfully kept in Japan.
Despite international parental child abduction being a U.S. Federal crime, parents who have fled to Japan with a kidnapped child have not faced concern of criminal charges because since Japan's laws do not make international parental child abduction a crime, Japan would not allow extradition proceedings to go forward against any of its citizens. This theme - failure to extradite - is something that the I CARE Foundation has spoken out about in the past, particularly in courts during abduction prevention cases whereas a sitting judge may think that they and U.S. law would have far reach abroad: it does not.
With hardly any domestic attention given to the matter, though, there has been little incentive to ratify a treaty mostly detrimental to Japanese nationals. Lawmakers who have rejected submitting the treaty to parliament in the past point to the need to protect women and children from domestic violence and abuse should courts forcibly expatriate mothers and children to overseas residences they have escaped from. In itself, the domestic violence claim against women appears to be a deflective way for some of Japan's politicians to not welcome change. And it clearly does not take into consideration the increase of domestic violence acts against men, or, more commonly, the use of false claims of domestic violence as a reason for a parent to abduct, knowing they may find protection under Article 13 of the Hague Convention.
But during a U.S. visit in February, Prime Minister Shinzo Abe surprised some by promising President Barack Obama he would seek approval for joining the convention. Mr. Abe’s visit was aimed at strengthening ties with Washington after a cooling in relations during the previous Japanese administration.
Progress? Yes, however, Japan must still clear various governmental and legislative hurdles before the Hague Convention can take full effect. The government has said it aims for final ratification by the end of this fiscal year -- March 2014.
A central authority will be set up in the foreign ministry to take charge of locating children who have been removed by one parent following the collapse of an international marriage, and to encourage parents to settle disputes voluntarily.
If consultations fail, family courts in Tokyo and Osaka will issue rulings.
The law will, however, allow a parent to refuse to return a child if abuse or domestic violence is feared, a provision which campaigners say is vital, but which some say risks being exploited.
It will also allow for parents who separated before its enactment to apply to get a child returned. But it contains a provision stating that the application can be refused if a child has been resident in the country for a year or more and is happily settled.
Few foreign parents have much faith in the Japanese justice system as a means of getting back their children once they have been brought to Japan.
Are there concerns about the Japan's language in the new law passed that would make a child's return difficult? Yes.
There are others in Japan, primarily from women-rights groups that have concern about the Hague Convention.
Yumiko Suto, co-founder of a women's rights group, took issue with the convention on the grounds it would leave youngsters open to violence when she said, "What's worrying about the Hague Convention is that it won't protect victims of domestic violence, mothers and children who barely escaped alive from their violent husbands. It is very difficult for women and children in shelters to hide their whereabouts for a year... so the provision is not very helpful to them," adding that providing evidence of domestic violence in a foreign country is also difficult.
Kimio Ito, professor of sociology at Kyoto University, said he hopes Japanese domestic laws "will remove worries over domestic violence that the convention doesn't fully address".
Under growing pressure from Washington and other Western capitals, Japan has repeatedly pledged to sign the treaty into domestic law, but it has until now never made it through parliament.
With cautious reason to be excited that the nightmare of hundreds of children and their chasing parents left behind in the storms of abduction may soon be over for many, the reality still remains that Japan is at least one year away from final ratification, and in a country that has made promises to sign the convention many times in the past, there still remains a long road ahead for so many.
The following information has been shared by Paul Toland regarding pro bono legal assistance that may be available to U.S. parents to obtain access to their children in Japan using the provisions of the Hague Convention once Japan ratifies the Hague Convention on the Civil Aspects of International Child Abduction. Paul is the contact point for this and his email address is email@example.com.
If you wish to have your case listed, the following is the information that should be submitted:
Child Sex: (Male or Female)
Child Birth Date:
Child Abduction Date:
Last known address:
The following is the email from Paul Toland:
Subject: Article 21 Hague Convention Access Application – Requesting your response
Please forgive the length of this email, but it is important to be a thorough and clear as possible. With Japan nearing ratification of the Hague Convention, we have the opportunity to gain access to our children under Article 21 of the Hague, which reads:
“An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfillment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.
The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.”
I know this is not what everyone wants, we want our children returned, but my attorney, renowned Hague attorney Stephen Cullen, has told me that if done properly and en masse, simultaneous delivery of dozens or perhaps hundreds of Hague Access applications in the immediate aftermath of Hague Ratification by Japan would severely test Japan and put them on notice that we’re watching their compliance. Stephen is perhaps one the foremost Hague attorneys in the US (Baltimorean of the Year in 2004, American Bar Association Pro Bono Attorney of the Year 2003, Maryland Trial Attorney of the Year in 2008, etc.) having litigated over 200 Hague Abduction Cases, with well over 100 successful returns. He has VOLUNTEERED to submit Hague Applications for ANY AND ALL JAPAN ABDUCTION CASES PRO BONO.
The plan would be to hold an event in DC shortly after Japan ratifies the Hague, where we march en masse from his office on K Street in DC to the State Department to deliver the Hague Article 21 Access Applications. We would do this march in front of members of the press and garner as much publicity as we can. Additionally we would do a symbolic delivery of the Applications in front of the Japanese Embassy as well (although the actual applications would be delivered from our Central Authority, the State Department, to Japan’s Central Authority). First, though, Japan has to ratify the Hague and Stephen has to prepare the applications.
Questions and Answers:
1. Question: Who can submit an Article 21 Hague Application:
Answer: ANYONE who is a US Citizen and has a US Citizen or dual-national child in Japan that they do not currently have access to. This includes what have historically been referred to as both “Abduction” cases and “Access” cases.
2. Question: Will performing an Article 21 Hague Application affect my ongoing legal case in any way?
Answer: No, if you have Warrants out for the arrest of your former spouse, those warrants still stand. This is simply a request to have access to your child under Article 21 of the Hague.
3. Question: I am American, but I do not currently live in the United States, can I still submit an Article 21 Hague Application to see my child?
4. Question: Will this process subject me to the Jurisdiction of the Japanese courts, and affect the US Court jurisdiction over my case?
Answer: It will not affect your US jurisdiction of your case, but the Japanese court system may be utilized under the Hague in facilitating the access to your child. The extent to which the Japanese court system will be used is really a matter of how the Hague implementing legislation is written in Japan.
5. Question: I am not a US Citizen. Can I participate?
Answer: Yes and no. You cannot file via Stephen Cullen with the US State Department. However, you can file an Article 21 Hague Access application through your country of citizenship, and I highly encourage you to do so to further test Japan’s system.
6. Question: What will this cost me?
Answer: Stephen, whose normal attorney fees are about $800 per hour, is doing this PRO BONO. There will probably only be small costs associated with copying, and filing fees.
So what’s the first step? Stephen has asked me to collect as many names as possible of as many parents who would be interested in filing Hague Article 21 Applications. We are hoping to get at least 50, and if we get 100 that would be a tremendous success. I will collect your information centrally for Stephen and then his office will be contacting you to begin the process. I am not sure if he will begin the process prior to Japan’s ratification of the Hague or after. I will let you know when I find out.
For now, though, please provide some basic information to me so I can collect it for Stephen. Your name, your current address, phone, email address, and the names and ages of your children. Stephen’s office will collect more information after the process begins, but for now, I’m simply trying to get a parent and child head count and contact information.
Please distribute this request as far and wide as you can among the community of US Citizen parents who have had their children taken from them to or within Japan. The more parents we get, the better!
(End Paul Toland communication)