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U.S. hopes for new Japan stance on child abduction

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With the very best intentions, Kerry is an idiot.

We ALL know that Japan will eventually sign the hague convention, because of the International pressure.

However even if/when Japan sign the Hague, its not really worth the paper its written on unless it is enforced. And to do that, they need to change Japanese family law as a first step - the hague means nothing if Japanese only gives one parent full custody after divorce as a matter of norm.

Once this has been accomplished, THEN we can think about the international pact.

Its a lovely idea, however... I think overly optimistic at best.

4 ( +5 / -1 )

All talk for the last 5-6 years, lets see a signature and real enforcement of the law before I cheer Japan.

7 ( +7 / -0 )

any word . is all human being are equal ?

too much bad think is still in grass root .

0 ( +1 / -1 )

kimuzukashiiiii

With the very best intentions, Kerry is an idiot.

I do not think so.

the hague means nothing if Japanese only gives one parent full custody after divorce as a matter of norm.

It seems you have very little knowledge on the convention. The Hague convention has nothing to do with the argument on joint custody vs sole custody. The convention works both in joint custody countries and in sole custody countries. Read Article 3 of the convention.

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention;

The convention also has a whole chapter IV of "Rights of Access" for parents without custody rights, mainly in sole custody countries. http://www.hcch.net/index_en.php?act=conventions.pdf&cid=24

The convention is designed to work in sole custody countries. It is not meaningless.

1 ( +3 / -2 )

Japanese courts will not enforce the Hague convention. They will never return a "Japanese" child to another country.

2 ( +4 / -2 )

Scrote, why not?

-1 ( +1 / -2 )

CH3CHO: I hate to admit it but Scrote is correct, Japanese courts think what is best for the child and Japanese courts think Japan is always better for the child. There are stories and comments from people on JT where grandparents were given custody over a child before a foreigner parent or spiting children and parents up. It's just wrong.

4 ( +5 / -1 )

gogogo, I am afraid your comment has nothing to do with the Hague convention. The Hague convention is to lock the child in "habitual residence". Who should have the custody of the child in the "habitual residence" is out of the scope of the convention.

-2 ( +2 / -4 )

It seems you have very little knowledge on the convention. The Hague convention has nothing to do with the argument on joint custody vs sole custody. The convention works both in joint custody countries and in sole custody countries. Read Article 3 of the convention.

It seems you have very little knowledge of Japanese society, and the importance of the bloodlines which exist here.

The sad fact is, that Japanese embassies all over the world routinely help Japanese women to smuggle their own children back into Japan, and then Japan is used as a safe haven for these women. Once the kids get into Japan, Japan is never going to give them back to their "habitual country of residence."

This is the fact which will NOT change, even if Japan signs.

The convention is designed to work in sole custody countries. It is not meaningless.

It is meaningless if Japan refuse to enforce it. And if they are acting in accordance with Japanese family law, then they would be quite justified in refusing to return a child back to (America) etc. The hague convention does not "trump" all. Japanese courts would still realistically be the final decision makers for the vast majority of kids abducted by their mothers to Japan.

5 ( +5 / -0 )

My biggest concern about them signing the hague convention is that they would be doing it to appease the international community, rather than doing it because they truly care about the welfare of the children involved.

Lets not kid ourselves - the reason Japan is signing is NOT because they believe that all children deserve to have a relationship with both parents. Parents who are Japanese, and reside in Japan after divorce don't get to have such a relationship with their own children by law - why would foreigners be any different?

Until this criteria is met, Japan signing the convention is worth no more than the paper is written on.

3 ( +3 / -0 )

Japan is never going to give them back to their "habitual country of residence."

Why not?

This is the fact which will NOT change, even if Japan signs.

Why not? The convention makes it the obligation of a signing state to kick back the child to "habitual residence" even if it is against the best interest of the child.

Do you see the problem with you argument? You do not present any support for your argument.

they truly care about the welfare of the children involved.

I care about the interest of children and therefore I am against joining the Hague convention. By joining, Japan loses its ability to take the best interest of the child into consideration when making return order.

-3 ( +2 / -5 )

Japan is never going to give them back to their "habitual country of residence." Why not?

Well firstly because they are Japanese citizens. Secondly because Japanese "bloodlines" are highly valued. Japan values the rights of its own citizens above those of foreign citizens. Plus Japanese family law in practice puts high priority on the child being with the mother - In most divorce cases the mother will be granted full custody.

Why not? The convention makes it the obligation of a signing state to kick back the child to "habitual residence" even if it is against the best interest of the child.

Yes, but at the end of the day, what ACTUALLY happens under the hague is that the child is located by the authorities, under the rules of the convention, and a trial will take place in a Japanese family court, by Japanese judges, and they will decide whether to return the child or not.

Believe it or not, I actually agree with you - that they should not sign the Hague convention, because I believe that taking a child away from his or her mother is the only thing worse than taking away from his father.

However you are correct that there is no support for my argument, because up until now, Japan (as a country) has NEVER returned a child who has been abducted, with the exception of the child whose mother stupidly flew into hawaii to renew her permanent residence and got arrested, but technically she returned the child herself! It is hard to know what Japanese judges would do if they signed, however its a mentality which I doubt signing a bit of paper will change. Knowing the family court system, it would probably drag on for years, and eventually the judges would rule that it is now in the best interest of the child to stay in Japan.

I am just saying that, even if they DID it would not do anything for the fathers who have lost their children anyway. (And its those men who I feel sorry for in this situation, and the fathers who will continue to have their children abducted in the future.)

The point I am trying to make is that signing It would be a procedure, and then the pressure internationally would back off for a while, until other countries realized that they had signed it, but were not enforcing it. Signing it, but then not enforcing it, is the worst of both worlds.

3 ( +3 / -0 )

to CH3CHO

I care about the interest of children and therefore I am against joining the Hague convention. By joining, Japan loses its ability to take the best interest of the child into consideration when making return order.

Explain me this: if a child has lived up to the age of, say, 4 or 5 years in his ''habitual residence'' how can Japan claim an ability in making decision over the best interest of a child.

Japan suffers from racial supremacy complex and the abduction of children is purely an act of force, they don't care about the interest of the child.

1 ( +2 / -1 )

kimuzukashiiiii

because up until now, Japan (as a country) has NEVER returned a child who has been abducted

There are a lot of cases in Japan in which custody is given to a parent who is not a Japanese citizen. Then the foreign parent can bring the child to wherever he/she thinks is best for the child.

-1 ( +2 / -3 )

Antonio Cresce

if a child has lived up to the age of, say, 4 or 5 years in his ''habitual residence'' how can Japan claim an ability in making decision over the best interest of a child.

If a child happens to be in Japan, Japanese court must take the best interest of the child into consideration. You do not say that Japanese court should make an order that is not in the interest of the child.

If a person is in Japan, he is under the laws of Japan. However, the Japanese law says that the court must use the laws of the country of nationality (lex patriae) in making custody judgment. That is, if the child is a Korean national, the Japanese court must use laws of Korea to make the judgment. Actually, there are number of cases that Japanese court ruled based on the civil code of Korea or civil code of Peoples Republic of China. This works well among lex patriae countries.

However, if the child is a US national, there is a problem. There are two contradicting precedents in Japan. In one case, since the law applicable in the US is the laws of the place of the court (lex fori), Japanese court ruled that the applicable law is laws of Japan. In another, Japanese court ruled laws of the state where the child lived are the applicable law. Since the parties did not appeal to the supreme court for contradicting precedents, there is no unified ruling in Japan. Actually, there are not so many court cases involving US children.

In addition, if the child is a Japanese national as well as a foreign national, the applicable law is the laws of Japan. This is risk and benefit of being a double national.

All this will end when the Hague convention becomes effective.

0 ( +2 / -2 )

Japan is doing just fine and the worlds best stance/moderation on lolita.

-3 ( +1 / -4 )

There are a lot of cases in Japan in which custody is given to a parent who is not a Japanese citizen. Then the foreign parent can bring the child to wherever he/she thinks is best for the child.

You are dreaming, this is simply not the case, please point out these cases and I will promptly eat my foot, because I have never every heard of a foreigner EVER being given custody of a child even when the mother was on medication and drugs they still were awarded the rights.

0 ( +1 / -1 )

The abduction problems with Japan is ridiculous and they should be sanctioned until they wake up and join the modern world on the issue.

0 ( +1 / -1 )

It's extremely and traumatically sad that the comment section here under this story is being trolled by a reader, above, who is bent on fudging the issue and misinforming your readers! I don't want to call him out; but it should be easy enough to recognize. Every parent who has lost a child into Japan - and there are thousands of us - knows that Japanese courts do NOT consider the laws of the countries from which the children have been abducted. That is the larger point of the endless historic delays with regard to the convention, and the current dissimulation of the Japanese government, which has not treated the abductions as crimes, nor changed the enforceability of preexisting custody one iota. The fact that it has been hopeless for non-Japanese to get their child back from Japan once the Japanese parent has successfully kidnapped the child and crossed the border into Japan is one of the key reasons why the courts are not full of cases involving US children. Numerous parents in despair of losing their children to Japan have quite rationally been unwilling to enter into an extended and exorbitantly costly legal proceeding just to make a point which is lost on the Japanese anyway. We love our children. We do not love pointlessly throwing resources into a garbage disposal.

Mr. Kerry says he is optimistic and that the issue is important, but one must look directly at the record to evaluate how meaningful this politician's statements are. The government of the United States, via the State Department, has an office for keeping records of international abduction cases and providing assistance; and it is an UTTERLY POWERLESS agency that has a success ratio of zero in getting kidnapped children back from Japan. The frustration and outrage that we parents experience at having our children stolen and being stone walled by our government in order not to ruffle the feathers of nationalist Japanese sensibilities is a "productive" process in this sense: it "produces" abandoned cases, and keeps them out of the courts. And it produces more abductions, serviced by the cottage industry of abductor-attorneys in Japan.

The issue is abduction disguised as custody determination, so the JT reader who is telling you here that it is not a custody issue is deceiving you! The approach taken by various governments of insisting that the Japanese sign the international abduction convention without first changing the custody laws - which currently allow a parent who has kidnapped a child into Japan from abroad to obtain custody and terminate the parental rights of the chlld's parent very easily - was bitterly opposed by parents of abducted children, who knew very well what the outcome will be. But governments like treaties much, much more than they care about children. The appearance of a regulated international environment is all they seek. Once the Japanese sign the convention and adopt the implementation procedures they prefer -- which we already know are written to continue to allow Japanese courts to transform child abductions into custody determinations by reserving for Japanese courts the power to make the decisions to NOT return children -- then, the heat from various grinning foreign officials such as Mr. Kerry will be allowed to dissipate; and Japan will continue easing its way down the long pathway of non-compliance with the treaty, for which they will get the occasional scolding or slap on the wrist, if that. And the Japanese are counting on this.

The only way the situation can change, in my opinion, is to make it absolutely illegal for Japanese to bring children into the country without first obtaining a legal guarantee that the child will be returned, or the parent must face criminal, not civil, penalties. Frankly, I would impose an absolute ban on children's travel into Japan due to the grotesque history of human rights violation and abuse of children constituted in this manner; but that is more of a dream-wish than a hope.

0 ( +2 / -2 )

Already Japanese fathers find it incredibly difficult to be able to see their own children after a divorce, much less getting the custody. It is a fact that the rulings are determined not by reason, but by the cultural stigma that kids ought to stay with their mothers. As such, what hope can a foreign father have to get a favorable or, at the very least, a reasonable ruling?

A country can sign in one hundred conventions just to not be out of the international loop, but compliance cannot be enforced. Appearances is the name of the game.

1 ( +1 / -0 )

gogogo,

please point out these cases and I will promptly eat my foot

Read this book. ISBN-13: 978-4896285956 "Minjishikkouniokeru Konohikiwatashi"

This is a book written by a Tokyo Family Court official and contains real cases about enforcement of child custody orders. In some of the real cases discussed in the book, foreign parents were given custody.

0 ( +2 / -2 )

brianprager

reserving for Japanese courts the power to make the decisions to NOT return children

The Hague convention is very clear that court in ANY COUNTRY has the right to make the decision not to return the child. You really should not single out Japan for the right every country has.

-3 ( +0 / -3 )

There is almost no chance that Japanese will enforce the actual parent's custody of kidnapped kids. Kidnapping children into Japan is not illegal under Japanese law - it is a means to obtaining permanent custody. Dividing children permanently from their parent is Japanese "custom" and isn't considered "wrong" or a crime by Japanese, as we all heard from Diet member Ito last year. What is illegal is to get a child OUT of Japan, unless ordered by a court. How would one get court-ordered custody of a child that has been kidnapped into Japan, in a country that regards kidnapping as a normal means to wresting custody from the child's parent, and practices this every day?

And I would re-emphasize that the Japanese adoption of the Hague treaty - which we must remember is a civil treaty, not a criminal one - is something that was desired by elites and agreed upon by elites in Japan and the elites in its partner countries. It is not the desire of parents of kidnapped children to have Japan join or not join, because there is no direct benefit; in fact, It makes essentially no difference. Japan has already signed other treaties that it is in open defiance of that would protect children's right to their parent and make kidnapping illegal if the treaties were observed. It bears repeating: children kidnapped by Japanese nationals from abroad into Japan will not be affected by Japan signing the Hague treaty and adopting its "implementing legislation."

Mr. CH3CHO is wrong, and is misrepresenting the truth for reason known only to him . The Hague convention pretends to provide a remedy for the abduction of children, and creates a rule that would be new in Japan if it were observed, that stealing jurisdiction by kidnapping a child so that a new custody determination in a Japanese court can be made is not allowed. But stealing jurisdiction by kidnapping children is considered a normal "custom" to Japanese judges and family courts, and happens every day in Japan.

2 ( +2 / -0 )

brianprager

Kidnapping children into Japan is not illegal under Japanese law

It is illegal. Read article 226 of Japanese penal code. The definition of "kidnapping" is almost same as that of English law. Kidnapping is (1) the taking or carrying away of one person by another; (2) by force or fraud; (3) without the consent of the person so taken or carried away; and (4) without lawful excuse. --Wikipedia

So, if no force or fraud is involved or if the child gives consent, the carrying away is not a kidnapping. If you do not like this definition, tell so to Englishmen and women.

stealing jurisdiction by kidnapping children is considered a normal "custom" to Japanese judges and family courts

What is the big deal with the jurisdiction? A court in Tokyo will give the same ruling as a court in Osaka. If the child is a Korean citizen, a Chinese citizen or so, Japanese court will make judgment based on lex patriae, and the result is almost the same as that made by the home country court. It is the problem of the US court system that the law changes by the court. Do not blame Japan for the defects of US court system. If the child is a double national and one of the nationalities is Japan, surrender his Japanese nationality if you really do not want him affected by Japanese law. By retaining his Japanese nationality, you accept the chance that his custody is determined by Japanese law.

-2 ( +1 / -3 )

CH3CHO: I wish you were right but you are not, Japan does not view it as kidnapping they see it as "escaping from the husband" and the court is "protecting the child"

2 ( +2 / -0 )

Mr. CH3CHO says "What is the big deal with the jurisdiction?" and I'm sorry (!) , this is merely obtuseness which is intended to confuse the issue, and provide a veneer of justice for kidnapping children to continue. Which is precisely the point as to why Mr. Kerry's optimism, described in the article, is so obviously false, and a matter of diplomatic nicety, but not justice for children or families. A child grows up in the US, loved by his parents above all other things in life, is kidnapped to Japan, and hidden for a few months. In nearly an instant, upon getting off the airplane there, Japan declares that it has "jurisdiction" and supports the kidnapping, declares that the child is instantly a resident of Japan, and that the parental rights of the other non Japanese parent are permanently terminated. And Mr. CH3CHO says, this is a defect of the American court system, not the Japanese. A lawyer for international abductors could not have said it better.

Allowing children to retain double nationality, officially, in order to give the child and the family options until the child comes of adult age is an obvious "good" - a benefit that exists in order to secure that people have the freedom of living in either or both countries, as it is a heritage & family value, etc. Exploiting this as if it is a legitimate use of the law, or a legal maneuver that is not obviously criminal in intent is pure obfuscatory, dare one say, malevolence. If we are led to believe that this is what the Japanese system is designed to do, then what are we to do but speak out against it until children's and parents' lives are no longer ruined by Japan. Thanks for the opportunity to get this issue into the open.

0 ( +1 / -1 )

CH3CHO: "The definition of "kidnapping" is almost same as that of English law. Kidnapping is (1) the taking or carrying away of one person by another; (2) by force or fraud; (3) without the consent of the person so taken or carried away; and (4) without lawful excuse. --Wikipedia

So, if no force or fraud is involved or if the child gives consent, the carrying away is not a kidnapping. If you do not like this definition, tell so to Englishmen and women."

You should leave the interpretation of laws to people who know what they're doing. Children are not legally capable of providing legal consent. Until they reach the age of majority they cannot entire binding legal agreements.

CH3CHO: "If the child is a double national and one of the nationalities is Japan, surrender his Japanese nationality if you really do not want him affected by Japanese law."

So your solution to the fact that the inequities of Japanese law strip children of major parts of their identity, culture and heritage and patrimony... is to strip children of major parts of their identity, culture and heritage and patrimony? Brilliant.

3 ( +3 / -0 )

"The definition of "kidnapping" is almost same as that of English law. Kidnapping is (1) the taking or carrying away of one person by another; (2) by force or fraud; (3) without the consent of the person so taken or carried away; and (4) without lawful excuse.

And yet the American guy who tried to take his children back to the US last year was arrested in Japan for child abduction even though, according to the definition above, he had committed no crime.

Anyone who expects to obtain "justice" in Japan is seriously deluded.

-1 ( +1 / -2 )

Scrote, you must be talking about Chris Savoie. He used force when he ambushed his children and pushed them in his car. That is kidnapping by Japanese laws.

Carlos Bermudez

Children are not legally capable of providing legal consent. Until they reach the age of majority they cannot entire binding legal agreements.

Your view is not supported by majority of the world. Read this document. http://www.hcch.net/upload/wop/abd_pd03e1_2007.pdf On page 38, it says,

In 9% of cases the child's objections were the sole reason for refusal. This is a decrease on the 13% recorded in 1999. The13 refusals solely based on this ground involved the objections of 20 children. The ages of the children were, 5 children aged 8-10 years old, 6 children aged 11-12 years old and 9 children aged 13 or older.

The difference between the number of cases and number of children is due to cases involving more than 1 child. The court in some of Hague convention countries says an 8 year old is old enough to give concent to abduction.

-2 ( +0 / -2 )

All this arguing about definitions of abduction is simply obfuscation of a clear issue. That is what appears to be an attempt to get japanese 'savages' to succumb to the wishes of supposedly more advanced american courts, who will of course rule that the child should stay in the USA because who wouldn't want to live in the USA??!!?!?. The issue, as one person quite rightly pointed out is whether or not the child has Japanese citizenship and therefore entitled to be be brought into and raised in japan legally. If you take a solely US citizen into japan against the will of either parent it is undoubtedly illegal, and the court should return them to whichever parent resides in the USA.

Making some faux-argument about the benefits of dual citizenship for the child whilst simultaneously refusing to accept the disbenefits, for example being told you are doing taiwanese military duty, is just lunacy.

There are untold cases in the UK of women married to North Africans, where the woman seems completely oblivious to the fact the cultural precedent is for courts to grant all rights to the Father. The mother is seen as simply an extension of his possessions. Barely a day goes by where one of them is not on the TV getting all upset about the father abducting his children.

Ignorance is not an excuse, nor a path of legal recourse. Don't procreate with people you don't trust.

-1 ( +0 / -1 )

CH3CHO: "It is illegal. Read article 226 of Japanese penal code. The definition of "kidnapping" is almost same as that of English law."

Boy did you step on a hornets' nest on this one and insist on calling it paper! The Japanese penal code says as you say it does, but they call it being "spirited away", not kidnapped, so that domestic laws have no play. Japan can change the laws all they want while they paint the lipstick on the pig, but so long as they do not adjust domestic laws accordingly it's the usual Japanese lip-service.

-1 ( +0 / -1 )

smithinjapan, I do not know what you want to say, but remember the Hague convention is not about criminal procedure. Something is illegal or not has nothing to do with the Hague convention. If you want to know how Japan is planning to change its civil procedure, read this. http://www.shugiin.go.jp/itdb_gian.nsf/html/gian/honbun/houan/g18305029.htm

1 ( +1 / -0 )

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