Child Abduction

What happens when the marriage collapses 

and children are involved?

Through relationships developed over the past few months, I have become aware of the  nightmare that Japanese family law produces for thousands of children and parents.  Hopefully the nightmare is about to end.  In order to understand what recent developments may mean for the future, I have first tried to grasp the essence of traditional Japanese family law and how it developed historically.  So I read some analyses and I will briefly summarize here.

For privacy reasons, I will not discuss my friends' or students' specific circumstances.  Suffice it to say that there is much sorrow as well as some hope that things may soon change for those whose lives have been ripped apart by divorce, separation and child abduction.

On April 1, 2014, the 1980 Hague Convention on the Civil Aspects of International Child Abduction finally went into effect in Japan.   Japan is now required to return any child taken by a parent away from the child's usual country of residence.   Along with the other G8 nations (Canada, France, Germany, Italy, Russia, UK), the United States pressured Japan's parliament to ratify the international agreement until both houses finally signed on last year.  It is well-recognized that when international marriages collapse, Japanese mothers (or in some cases, fathers) usually take the children back to Japan, leaving the other parent with NO legal recourse in Japanese courts.  Japanese family law does not recognize joint-custody so the Japanese mother is almost always awarded sole legal custody.    

As of April 1st hundreds of largely American and European fathers have hope that they will soon gain legal recourse when their children have been taken by the mother to Japan.  As signatory to the Hague Convention, Japan is NOW obligated to locate these abducted children on Japanese soil.   Besides international fathers without custody rights, thousands of Japanese fathers have also been denied parental rights.  In essence, Japanese civil law has been unconcerned with deciding custody cases in "the best interest of the child,"--beyond the belief that living in Japan is in the child's best interest--and deprives the non-custodial parent of all rights including visitation.  The most important consideration is maintaining the family unit. 

Understanding the historical context...
Japanese family law is based upon a household unit called the ie.  The traditional household included several generations of families with the eldest male as the "head."  He had power as well as responsibilities.  Historically this hereditary position included the duty to pay taxes and enforce government obligations such as military service.   The "head" also approved marriages, punished household members, and controlled the family business(es).  Most importantly, the government controlled its people through a strict household registry system called the koseki.  Each "head" had the duty to officially register the ie. Thus, the ie became the smallest social unit subject to law.  Japanese law had no acknowledgement of individual rights; all policies were strictly enforced through the ie.  The registry made it clear to the government who was in charge of whom.  And the family registry still does.
 

Marriages Today

Following World War II under U.S. occupation, the ie system came under pressure from the U.S. government and demands were made to guarantee individual rights in the new Japanese constitution.  To resist, Japanese leaders stalled and hoped to wait out the U.S. government.   Ultimately a compromise was reached and the nuclear family unit, not individual rights, became the basis of civil family law.  Think of the nuclear family as ONE entity and the foundation upon which all family law rests.  For instance, in the case of two parents with two children, the courts do not recognize four separate individuals but rather ONE family entity.  So, under Japanese law, if a mother takes the children away from their country of residence and returns to Japan, she and the children are legally registered as ONE family.

And the father is left with no legal recourse.

How quickly will the legal system change?  

(Japanese say "not anytime soon.")