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twitter: arudoudebito
Forwarding, courtesy of EK. Arudou Debito in Sapporo

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What Are We Bargaining For?

Dear Prime Minister Hatoyama,
It’s important that left-behind parents understand what the Japanese Government mean when they say they “will need at least two more years before it will sign an international treaty (Hague Convention on the Civil Aspects of International Child Abduction) designed to settle child custodial disputes” and that “relevant legislative measures are unlikely to be submitted to the Diet until 2011 at the earliest”. The Yomiuri Shimbun article “Govt. unlikely to Sign Child Custody Pact for 2 Years” dated October 19, 2009 goes on to state that it will take “some time until the country is able to facilitate such a move by addressing the necessary domestic laws”.

Left-Behind parents have been denied access to their children for one second too long, now you’re asking us to be patient for two years. Well, What are we bargaining for? Will the process take only two years? and How will the process be carried out?

I’ll get straight to the point. There are those in the Foreign Ministry and the Justice Ministry that know very well the article written by Dr. Hans van Loon “The implementation and Enforcement of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction in Comparative Perspective: It’s Japan’s Move!” and the related article by Professor Yuko Nishitani. (Tohoku University 21st Century COE Program, Gender Law and Policy Annual Review, Vol.2 2004) Dr. Hans van Loon suggested seven (7) measures were necessary for Japan to implement the Hague Convention on the Civil Aspects of International Child Abduction. I will only remind you of the second, which states:

a high level Central Authority should be designated, equipped with a small but highly competent staff with broad international experience, excellent knowledge of the convention and its operation in other States Parties and expertise in conciliation and mediation. However, conciliation and mediation should not hold up legal proceedings.

In another article, The Judges Newsletter, Enforcement and Return of Access Orders, National Report by Fourteen (14) States and The Conclusion of the Noordwijk Judicial Seminar Vol. VII Spring 2004 Professor Yuko Nishitani writes the following:

A working group of Japanese scholars have proposed a draft statute to implement this Convention in view of Japan’s possible accession in the future. In this draft, the Foreign Minister is appointed as “Central Authority,” acting through the Minister of Justice, who further delegates his duties to other institutions (e.g. police and the youth welfare office) which are to be appointed separately. The “judicial authority” is the Family Court, which has the necessary resources to carry out the required investigations and order the return of child. However, in order to comply with the obligations prescribed by the Convention, the Family Court must be provided with authority to ensure expeditious procedures and coercive enforcement, even if this represents a tough challenge for the Japanese legislature as well as for judges and practitioners. This is also crucial for other Contracting States so that they will be able to trust and rely on the Japanese judicial system for securing the return of a child abducted to Japan.

Apparently the draft statute is here, 119-2 Minshô–Hô Zasshi 302-311 (1998), but I haven’t been able to find it. It appears the administrative duties will be carried out by the Foreign Ministry, while the Family Court under the Justice Ministry will carry out the implementation and enforcement. Professor Nishitani, along with Professor Colin P.A. Jones in his research, In the Best Interest of the Court What American Lawyers Need to Know About Child Custody and Visitation in Japan, has pointed out quite clearly how joining the Hague Convention on the Civil Aspects of International Child Abduction will favor Japan. As they say, the elephant in the room is how will Japan implement and enforce the treaty? The Justice Ministry, the Supreme Court Justices, the Judicial Review Council (JRC), and possibly the Japan Federation Bar Association (JFBA) will play a critical role in crafting any new legislation required to implement and enforce the treaty. What can we expect this time from the Judicial Review Council and the Supreme Court Justices?

In Japan’s first Judicial Reforms of the 21st century the Judicial Review Council and the Supreme Court Justices chose not to address parental rights issues directly, but instead chose to try and deal with the issue by expanding the jurisdiction of the Family Court and relying on the courts so called “expert knowledge” in dealing with human relationships. The Judicial Review Council’s Initial Report, The Points at Issue in the Judicial Reform was created December 21, 1999. The Personal Status Litigation Law was approved by the Diet on July 9, 2003 and went into effect April 01, 2004 nearly five years after the process began. The Family Court was granted authority to legislate contested divorces after they failed mediation. It was clear that Family Court Judges had the authority to award visitation based on their preference, but it was also widely known any award of visitation was unenforceable. Previously contested divorces were legislated in District Court by District Court Judges, but now they are being handled by Family Court judges. This means the Supreme Court swept parental rights issue under the rug and relied heavily on the Family Courts to deal with these issues. The Diet has to take some responsibility as well because they passed the Personal Status Litigation Law without any assurances that it would protect parental rights.

The Mediators, Investigators, and Councilors (Sanyoin) which the Supreme Court and the nation put so much trust in to uphold Japanese family values let down the Justices and embarrassed the country’s international reputation in dealing with parental rights. Professor Colin P.A. Jones’ research points out the ineptitude of Family Court Mediators and Family Court Investigators. The Family Courts have failed miserably in protecting parental rights and the Supreme Court Justices have been so wishy-washy on the issue they’ve left the non-custodial parent with no choice but to take self-help measures when the custodian of the child refuses any meaningful access. Professor Colin points out that up until the Abduction for the purpose of performing an obscene act, murder and abandonment of corpse, case number: 2000 (Kyo) No.5 of the year 2000 the lower courts’ interpretations of parental rights were widely held views that he narrowed down as the following:

(i) an inherent right arising naturally from the parent-child relationship; (ii) an aspect of physical custody; (iii) a right arising in connection with physical custody; (iv) a right of children to develop emotionally through contact with their parent; and (v) a right of both parent and child.

After the 2000 ruling parental rights came down to a right to demand versus a right to request, with the right to request becoming the de facto meaning of Parental Rights. It seems that up until the 2000 ruling some of the lower court judges were determining the meaning of rights as those similar to what is proscribed in the United Nations Convention on the Rights of the Child. One significant point, the Supreme Court Judges that made the 2000 ruling, Justice FUJII Masao, Justice ENDO Mitsuo, Justice IJIMA Kazutomo, Justice OHDE Takao, and Justice MACHIDA Akira are no longer on the bench. If a similar case is brought before the Justices today we could get a different ruling. Of course, you remember the Judicial Reforms that began in December of 1999, in my opinion the Justices were aware of how their ruling would affect The Personal Status Litigation Law that was being drafted at the time.

By reviewing the work of Nishitani, Colin, Han van Loons, Bryant, the Judicial Review Council, and others I’ve been able to create a timeline that could give the left behind parents some idea as to when Japan will start to implement and enforce parental rights. I’ve compared the time it took Japan to implement and enforce the Jury System with the Personal Status Litigation Law because both legislations have a profound affect on the nation, as will the implementation and enforcement of the Hague Convention on the Civil Aspects of International Child Abduction along with the enforcement of Parental Rights of Access.

Jury System Personal Status Litigation Law
• December 21, 1999 Initial Report from the JRC 1. December 21, 1999 Initial Report from the JRC
• November 12, 2000 Sixty Five (65) Page Interim Report by JRC 2. November 12, 2000 Sixty Five (65) Page Interim Report by JRC
• June 12, 2001 Final Recommendations to the Cabinet by JRC 3. June 12, 2001 Final Recommendations to the Cabinet by JRC
• May 28, 2004 Approved by the Diet 4. July 09, 2003 Approved by the Diet
• June 01, 2009 Law went into effect 5. April 01, 2004 Law went into effect
• 9 Years 6 months to enact 6. 4 Years 5 months to enact

For simplicity, I’ve rounded the number of years and concluded it will take between 5 to 10 years before implementation and enforcement of the treaty or parental rights of access will be legally enforceable. From the article in the Yomiuri Shimbun one can assume the reform process will be carried out similar to the Judicial Reform process that started in December 1999 and took two (2) years before it actually reached the Diet.
While I believe you, Prime Minister Hatoyama, are sincere about resolving this issue, the facts lead me to distrust the bureaucrats in the Ministry of Justice and the Foreign Ministry. The Judicial Review Council and the Supreme Court knew about these problems in the first Judicial Reforms that began 10 years ago but chose not to face the tough issue of Parental Rights head on. Now, Mr. Hatoyama, are you relying on these same bureaucrats again? Why, is it that Professor Nishitani refers to a draft statute created by Japanese Scholars that would have paved the way for Japan to implement the Hague Convention on the Civil Aspects of International Child Abduction and the bureaucrats are sounding as though we have to start from scratch? If the Judicial Reform Council is drafting this legislation then who are the current members? I hope it is not any of the retired Supreme Court Justices that made the 2000 ruling. Furthermore, the Democratic Party of Japan’s Manifesto states the cabinet will be the center of policy-making. What happens if the DPJ loses power in the next election, which will be in two years, do we start from scratch again? Let’s see what Professor Yuko Nishitani and the Japanese Scholars proposed; maybe the cabinet can start from there. If the government wants the international community and all left-behind parents to cooperate while reforms are being created we need to know, What Are We Bargaining For?

Sincerely,
IGOTCHU