The Legislative Council, an advisory panel to the justice minister, has compiled a draft revision to the law on civil enforcement that would clarify the rules on forced child custody changes between divorced parents. The proposed amendment, to be submitted to the Diet as early as this month, is designed to ensure enforcement of a court order to turn over custody of a child from one divorced parent to the other, as these orders are often not implemented in the absence of legal provisions for specific procedures. Also important is to take care that the children do not suffer psychological harm by experiencing a forced handover from one parent to the other.
The law on civil enforcement currently does not have a specific provision for enforcing custody transfers between divorced parents, whether ordered by a court or called for in arbitration. Until now, enforcement officers have handled such matters at their discretion when forcing a handover in the face of, for example, refusal to cooperate by the parent living with the child.
But when Japan acceded in 2014 to the Hague Convention on the Civil Aspects of International Child Abduction, which sets rules and procedures to settle cross-border custody disputes arising from breakups of international marriages, domestic legislation to implement the treaty stipulated that the court-ordered handover of a child can only be enforced in the presence of the parent who is currently living with the child. That rule then came to be applied to the enforcement of custody changes between divorced parents in domestic cases, and subsequently the number of court-ordered handovers actually enforced declined significantly.
According to the Supreme Court, custody of children changed hands in only 35 of the 107 cases in which an exchange was ordered in 2017. This rate of 33 percent marked a significant decline from the 48 percent achieved in 2010. In none of the seven cases since 2014 in which forced handover of children was ordered by a court under the Hague Convention procedure did the exchange take place, as the parents who took the children to Japan refused to comply. As such, the U.S. State Department, in its annual report released in May, listed Japan as one of the countries showing a pattern of noncompliance with the Hague Convention, and the Japanese government has been weighing revision to the domestic law for implementing the convention, along with the law on civil enforcement.
The draft revision put together by the Legislative Council, which is set to be formally proposed to the justice minister this month before it is submitted to the Diet, will enable an enforcement officer to hand over the child as long as the parent with the custody rights is present, even if the other parent who is living with the child is not at the scene. The draft also provides for “indirect enforcement,” in which a parent refusing to comply with a court order to hand over the child would be fined until he or she cooperates. If two weeks have passed under the procedure, the officer can enforce a handover — but the indirect enforcement process will not be mandatory, and the officer can proceed with direct enforcement if it is deemed that the indirect process will have no chances of prompting the parent to cooperate and there is a pressing danger to the child’s safety.
So far, officers trying to enforce court orders have not been able to take children from their homes when the parents living with them were not present — in some cases, the parent holding the child in violation of the court order reportedly hid to prevent the child’s handover.
The proposed revision is aimed at resolving this kind of problem and allowing enforcement of the court order. That, however, will not rule out confusion during the custody exchange. The risk of psychological damage from suddenly being separated from a parent with whom the child has lived for a long time must be taken into account. Steps need to be taken to remove the possible stress that the child might feel over the handover. One idea would be to have experts trained in mental care of children accompany the enforcement officers in the procedure.
Children are prone to suffer mental shock over a dispute between their parents. Being handed over from one parent to the other — irrespective of the circumstances over the parents’ separation or divorce — could expose them to enormous stress. Measures need to be taken to ensure that court orders over their custody are enforced, but extra steps should be taken to make sure the children’s interests are protected as well.