Parents driven to ‘kidnap’ children

Kept out of court, estranged couples' custody battles go to extremes

by Rob Gilhooly

Dutchman Engel Nieman took his 2-year-old daughter to Osaka this fall to board a slow boat for the Netherlands to visit his dying father.

Instead, he found himself aboard a fast boat to jail.

Few could have anticipated the grounds for his arrest at Osaka International Ferry Terminal — kidnapping his own child.

Even if that had been Nieman’s intent, Japan usually does not treat parental kidnapping as a criminal offense, legal experts say.

Furthermore, the charge on which Nieman was indicted — “abduction of a minor with the aim of transporting overseas” — is on a par with kidnapping a child for trade on the international flesh market, Nieman’s lawyer Mamoru Tanabe said.

“I can’t understand how he was indicted on such a (heavy) charge,” Tanabe said. If found guilty, Nieman could face up to 15 years in prison.

It is almost certainly the first time in Japan that the charge has been employed, the lawyer added.

Nieman and his Japanese wife are still married, but they have lived separately for some time, during which he largely has been denied access to his daughter.

Under the law, his actions could be interpreted as the abduction of a minor, said Hiroshi Itakura, a professor of criminal law at Nihon University.

“But I have never heard of this being implemented,” he said. “If the charge can apply here, then there are countless Japanese in similar situations who could be arrested (on a domestic abduction charge).”

Making the case even more unusual, Itakura said, is Japan’s notoriously nonlitigious society, which prefers to keep family issues out of the courts. As a consequence, police rarely become involved.

In many cases where divorce is the outcome, children stay with the mother and fathers are encouraged to sever ties.

Yet, for many foreigners married to Japanese, the idea of relinquishing guardianship rights is unimaginable. Some will go to great lengths to ensure their parental role is sustained.

Such was the case for Briton Brian Thomas, who, despite having legal custody, has been denied access to his son for almost eight years.

During that time he has emerged victorious from a series of lawsuits, including a civil case in which he proved his wife forged his signature on a document handing over legal guardianship of their son to her parents.

Thomas also has appealed a district court ruling granting his wife a divorce. The high and supreme courts upheld that appeal, and the family court has since reconfirmed his custodial rights.

Thomas alleges his wife has employed other underhanded tactics, such as offering him a monetary “bribe” to annul the marriage.

“There’s no price to be attached to my son’s head. I won’t turn my back on him. I love him. It’s his rights as well as mine that are being abused,” Thomas said, adding he is lobbying certain Diet members to increase awareness of parental abduction.

There are others, however, who are not so patient. Shortly before Nieman’s arrest, a U.S. citizen came to Japan and “kidnapped” his children from his uncooperative wife, who had previously taken them from him in the United States.

It is not uncommon for parents to contemplate extreme measures to be reunited with their children, according to Thomas. As the representative of the Japan chapter of the Children’s Rights Council — a Washington-based nongovernment organization that draws attention to cases of alleged parental abduction, he has offered legal advice in dozens of cases where foreign residents of Japan have been denied access to their children by their Japanese spouses. Many say they are considering kidnapping to be reunited with their children.

“I hear this all the time from people who contact me,” Thomas said, adding that in this sense he can sympathize with Nieman.

While in some countries a court can force a parent to hand over a child, in Japan it is almost impossible to do so, according to Nihon University’s Itakura.

“Even where visiting rights have been granted, there is no legal system to enforce those rights when (a party) deliberately prevents (access to the child),” he said.

The American Embassy in Tokyo supported Thomas’ claim, saying it receives calls weekly from U.S. citizens who are distressed about child custody. A typical call is from a father separated or divorced from his Japanese wife, who is limiting or denying access to his children. Such callers often express the desire to resort to kidnapping.

Similar situations exist where Japanese nationals living in the U.S. kidnap their children and bring them back to Japan, said Ken Joseph of Japan Helpline, a hotline for Japan-based foreigners.

While the NGO gets one or two calls a week from foreigners seeking advice about child custody, it also regularly receives calls on a hotline service for Japanese living overseas who are similarly distressed.

“It’s a worldwide problem with the major difference that in Japan . . . the system decides on custody (depending) on who can best support the child, and it’s always assumed (that is) the Japanese party,” Joseph said.

The trend is likely to continue. According to government statistics, while the number of Japanese marrying foreigners and the number of children born to such marriages has doubled in the past decade, divorces have also increased to around 10,000 a year.

Yet, there is little that can be done in cases of international abduction, especially as Japan has yet to ratify an international agreement providing a legal framework to secure the return of children wrongfully abducted to, or retained in, a signatory nation.

Some 65 nations have signed the 1980 Hague Convention on the Civil Aspects of International Child Abduction, but Japan is the only one of the Group of Seven major industrialized nations not to do so.

There have been efforts by other nations to get Japan to ratify the agreement. This summer, Mary Ryan, assistant secretary for consular affairs at the U.S. State Department, visited Tokyo to appeal for Japan’s compliance.

Of the nations that have not signed the agreement, the number of international child abduction cases where a Japanese party is involved is second only to the Philippines, she said.

Meanwhile, CRC’s Thomas said he has received a letter from the British Foreign Office stating London’s continued efforts to “press” Japan into acceding to the agreement.

A Foreign Ministry official, however, said pressure from within Japan to sign the treaty has yet to materialize.

Meanwhile, some doubt ratification would automatically bring about compliance with the accord. A recent U.S. report states that 16 signatory nations — including Germany, Canada and Mexico — have shown varying degrees of noncompliance. Mexico reportedly orders return or access to parents in around 3 percent of the cases dealt with in court.

A U.S. Embassy official said the convention would not solve all cases, “but at least it will create a venue so that if there’s a court order and it’s violated there’s an administrative procedure that will recognize it.”

An official at the Dutch Embassy in Tokyo said Japan’s recognition of the treaty is vital, as it would help make such “tragic” cases as Nieman’s “easier to solve.”

CRC’s Thomas, meanwhile, believes little will change in Japan as long as discrepancies in the domestic legal system are not ironed out first.

“So many before have got away scot-free,” he said. “Then along comes (Nieman) and all of a sudden (parental) abduction becomes a criminal case. . . . It’s wrong. It’s barbaric!”