Keeping parents and children together is basic common sense

by Colin P.A. Jones

Contributing Writer

Longtime readers may know that I have spent the last 10 years or so writing about child abduction and the appalling way in which Japanese courts allow children to be unilaterally separated from one of their parents. In addition to numerous columns in this paper on the international aspects of the problem, in 2011 I wrote a book on the subject in Japanese, since it is also a fate suffered by countless Japanese parents and their children in the course of marital breakdowns

Japan joined the Hague Convention on the Civil Aspects of International Child Abduction in 2014, a result that can be attributed in part to a prolonged diplomatic campaign by Western countries. That campaign involved an educational component in which I was involved, participating in numerous symposia sponsored by various Western embassies and even individual meetings with consular officials who were struggling to understand why Japan could not seem to return children — both before Japan joined the convention and after. One of the small things I am proud of from this period is a letter from the head of mission at the U.S. Embassy thanking me for my contributions in these efforts.

Although I have voiced numerous criticisms of the Japanese legal system in a wide variety of contexts, I generally try to avoid “elsewhere is better/worse” comparisons because they are usually pointless and subjective. One exception has been in the field of parental child abduction. When compared to the workings of Japanese courts, the efforts of the Western diplomatic corps repeatedly demonstrated the latter seemed to have a deeper, more basic concern for the inherent value of the parent-child relationship. I was proud that the countries I am associated with were willing to devote resources to this issue.

Similarly, when addressing Japanese audiences on the subject, I would often point out that Western family law and courts operated on the basic principle that absent special circumstances, a child should not lose contact with either parent. Japanese parents’ rights groups repeatedly point to the United States and other Western countries as models Japan should follow in protecting the parent-child relationship after divorce.

Sadly, I don’t think I can do this type of advocacy anymore. With the news that the country of my birth has adopted a policy of forcibly separating children from parents suspected of trying to enter the country illegally, I don’t really feel the U.S. cares about the parent-child relationship any more.

I appreciate the policy has a certain “logic” as an effort to deter parents from bringing children across the border in the first place, but the fact that a policy is logical does not mean it cannot also be horrible and inhumane.

Moreover, imposing de facto punishments on children for the sins of their parents seems both stupid and contrary to basic American ideals.

I further appreciate that this is taking place within the context of a larger debate about illegal immigration. Some readers will also doubtless be quick to point out that the policies of prior presidential administrations also saw children of illegal immigrants and amnesty-seekers treated badly.

This may all be true and the question of illegal immigration and how the U.S. should deal with it (and has dealt with it in the past) is complex. To me, however, these things are irrelevant to the more basic questions of how governments should treat families — any families — and even how human beings should treat other human beings.

Granted, the Hague Convention and immigration policies exist in very different legal spheres, but the core principal at issue is — should be — the same: children should not suffer the anguish of being separated from a parent. That principal is reflected in the U.N. Convention on the Rights of the Child, a treaty signed by every nation on Earth but the U.S.

I used to explain this anomaly to Japanese audiences as being the product of a combination of American federalism, which meant the federal government could not create family law through treaties, and the U.S. taking its treaty obligations seriously, unlike the “sign and forget” approach seemingly adopted by some UNCRC signatories.

But perhaps the truth is that the U.S. government just doesn’t care about the parent-child relationship as much as I had thought. Once a nation has adopted a clear policy of separating parents from children for no reason other than because of who they are — a policy of normalizing such separations — what standing do I have to advocate in its favor on the subject of the Hague Convention? Once it becomes acceptable for a child to lose contact with his or her parents just because they happened to cross a border into one country, how can we argue the same thing should not happen elsewhere? Until things change or I can find answers to these questions, I will be focusing on other things in the field of Japanese law.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto.