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Top court seeks to minimize trauma to kids

Manual issued for Hague treaty child retrievals

by Magdalena Osumi

Staff Writer

The Supreme Court has issued a case-by-case manual for court-appointed administrators on how to retrieve children in parental cross-border abduction cases under the Hague Convention, minimizing the use of force to avoid traumatizing the kids, the court’s spokesman said.

The manual, issued June 14, outlines measures the administrators who would be assigned the task of returning children to their place of habitual residence, even by force, should take as Japan considers joining the Hague Convention by the end of next March, the spokesman said Friday.

It says the administrators “should take utmost consideration” to protect the interests of the child.

The 1980 Hague Convention on the Civil Aspects of International Child Abduction mandates procedures for a child abducted by one parent of a failed marriage to be swiftly returned to its country of habitual residence. The convention only applies to children under the age of 16.

The nation has come under fire in recent years over cases in which Japanese parents in estranged marriages overseas have brought children to Japan in defiance of divorce court custody or visitation rights rulings abroad.

Often, the estranged Japanese spouse claims to have fled from an abusive relationship. But the removal of a child from its country of habitual residence has been deemed a violation of that nation’s law, and the abducting parent a fugitive.

Under legislation that cleared the Diet in May, a court-designated officer can forcibly retrieve a child abducted or retained by a parent residing in Japan in defiance of an overseas custody ruling and who refuses to hand over the child.

The manual calls for the officer to attempt to take custody of the child at the home of the abducting parent, in an environment where privacy is thus protected and the child feels safe. Taking a child away in a public place, such as a day care center or on a street, may lead to “unpredictable situations” and traumatize the child, it said.

If the child cries or refuses to be returned to the other parent, the officer should not use force, according to the manual.

Should an officer visit a home to retrieve a child and is told it is not present, the child’s name should be called out and a check made on the presence of the child’s belongings, the manual says.

The officer is authorized to forcibly enter and search a home if there are indications the child is inside.

In the case of an infant, the manual allows the officer, with the parent’s consent, to remove it from the crib. But the officer must not try to forcibly take custody of an infant if the parent is hugging it tightly to prevent such action.

The manual, issued by the Supreme Court’s Civil Affairs Bureau, is based on meetings involving judges and other court officials nationwide in January and February. The gatherings covered past cases of failed domestic marriages where one parent fled with a child from the country of habitual residence without the consent of the other parent.

Court-designated officers have retrieved children in those cases but have not had specific manuals or regulations to follow. The latest document urges such officers in domestic cases to follow its instructions to avoid harming the child in any way.

In past divorce custody cases in Japan, officers apparently tried to retrieve children in public places, resulting in shouting matches.

Fiscal 2010 saw 120 domestic cases processed in which a parent demanded the forcible return of an offspring. The figure was 133 in fiscal 2011 and 131 in fiscal 2012.

Japan is the only Group of Eight member yet to accede to the Hague Convention. If it becomes a signatory, the cases will be handled by a family court in Tokyo or Osaka.

  • HSM

    One has to wonder whether this manual was drafted and publicly released for court-appointed administrators or child-abducting parents?

    In addition to offering guidance to the administrators, the manual gives clear instructions to a child-abducting parent about how to ward off the return of a child by the administrators: First, don’t worry about your child being returned when he or she is not in your presence (i.e., at daycare, school, etc.), the method of return traditionally used in abduction cases involving two Japanese parents. Second, if you are the parent of an infant or toddler, simply hold him or her tightly when the administrator visits. If your child is older, simply instruct him or her to refuse to go with the administrator.

    Contrary to the assertions in this manual, returning a child when he or she is not in the presence of an emotional parent (screaming and crying) would probably be best. However, that method would most likely result in more children being returned, which according to many, is inconsistent with Japan’s purpose in becoming a signatory to this convention.

    • Dad

      Even more ridiculous is the actual language in Japanese. Here the author has carefully made the regulations seem less bizarre for Western consumption. “indications the child is there” is actually 靴の有無などを確認して判断, “check for the existence or lack of shoes, etc., before deciding.” So it is telling the abductors to just hide those shoes! So let’s break this down a bit: 1. The foreign parent does not have custody (thus the Hague return order) and 2. The Japanese parent claims he/she has no idea where the kid is… and finally 3. The shoes are not there, resulting in a decision that they cannot implement the return order. Guess the child just vanished, right? Hmmm. Why wouldn’t the abducting parent file a missing child report in such a situation?! This would actually be hysterically funny if it weren’t an actual official policy published by the Japanese Supreme Court, the creme de la creme and bleeding edge of Japanese legal scholarship.

  • Ron NJ

    What child wouldn’t cry when some strange person shows up at their door trying to take them away? Did they not even consider bringing the other parent along to make the process smoother (and actually semi-feasible)? And what parent, who has already absconded with a child, is just going to say ‘yes go ahead and take my child from the crib’?
    My big question is: are there still no real penalties for abducting children to Japan? Having an ‘officer’ show up and ask politely if they may take your child with no sort of penalty for refusing to cooperate is just silly.
    Until there are some actual results, it’s probably best to remain extremely skeptical here.

  • Murasaki

    With any luck this will help the Japanese Mothers who have lost children taken by their US fathers illegally out of Japan, but we all know it will not.
    Australian Authorities have been trying for years to have children returned to Australia that were taken illegally by their American Parent and all have fallen on deaf ears in the US. It seems ever country is meant to follow international laws with the exception of the US.

    • Dad

      That is simply not accurate, Purple-kun. In Abbott v Abbott, — S.Ct. , 2010 WL 1946730 the U.S. Supreme Court, in an opinion by Justice Kennedy, held that father’s ne exeat right granted by Chilean law was a “right of custody,” under the Hague Convention, abrogating Croll v. Croll, 229 F.3d 133, Fawcett v. McRoberts, 326 F.3d 491, and Gonzalez v. Gutierrez, 311 F.3d 942. The child was returned to Chile. Even ne exeat rights will trigger a return from the United States, so your assertions are completely off the mark. For a rather extreme example of how important the U.S. courts view parental rights under international law, and how narrowly those courts construe exceptions to Hague return requests, read March v Levine, 136 F. Supp.2d 831. The father was a fugitive wanted for the murder of his wife, and yet because under Mexican law the father had custody and the child had habitual residence in Mexico, the U.S. courts ordered the American child’s return to Mexico. I am not exactly holding my breath waiting for Japan to behave in a similarly compliant manner. The cases you are referring to must be extremely weak on the part of the requesting parent. Can you post links to the court decisions here for us to read?

  • nobuo takamura

    I’m very satisfied with this manual issued by the Supreme Court. Minimizing the use of force to avoid traumatizing the kids is a critical point in forming another relationship between those concerned for the future happiness. They will be living their own lives for good. I think this way of dealing with a lot of other problems between one country and another for the ownership of something unoccupied by both, just like their kid.

    • Dad

      Oh really? Please enlighten us how quietly and uneventfully whisking away a child after school (which is forbidden by these guidelines) might be “more traumatizing” than having the child taken away in front of a crying, screaming, hysterical Interpol fugitive abductor parent. Your comment illuminates the kind of mindset that has made Japan such an abduction haven. Here, we are talking about execution of a proper Hague return order granted by a Japanese court after an abduction (indicating that the Japanese parent wrongfully removed a child), which is considered a serious crime of child abuse by the abductor in most civilized countries, unlike in Japan. You are writing as though there is some specious remnant legitimate”ownership” or “custody” claim on the part of the Japanese criminal fugitive abductor to keep the child hostage even after a Hague return order has been issued, which cannot legally be the case. The fact that you frame your argument in terms of “ownership” betrays your acceptance of parental love as a zero sum game–which is the crux of the problem in Japanese (lack of) family “law”… “Law” that continues to barbarically treat children as chattel.

      • Christopher-trier

        It’s rather more complicated than that. Western countries are more accustomed to international marriages, more accustomed to dealing with international custody issues. Japanese family law is well developed, but not internationalised. As such, those who are being asked to enforce this law have less understanding of it and less experience with this particular sort of situation.

      • Dad

        Can you give us some specific examples of Japanese domestic law statutes or principles that are “well developed”? The idea that Japanese laws come from some highly developed but different legal philosophy separate from western thinking — and therefore are incomprehensible to westerners is completely bogus. The current family laws in Japan are not inherently Japanese at all. They are primarily based on U.S. laws brought to Japan by GHQ in 1946, superimposed over pre-WWII Prussian Law of the Bismarck era. These principles actually are international, but old and outdated. They have not been significantly updated since the Meiji era (except for sections of Article 766 that are unenforceable at present). People like me who criticize these laws understand the Japanese statutes very well. Such laws are not based on any ancient Japanese or Sino-Japanese culture. In fact, pre-HQ times, Japan had a much higher divorce rate and the *father* was granted sole custody under the Bismarckian derived Meiji statutes. The current “laws” are based on the same outdated *western* models of custody that have long since been determined to be barbaric in civilized countries. No serious scholar of comparative international family law would consider Japanese domestic law to be “developed” in any way, shape or form.