by Tony Del Vecchio (updated 2/7/11)
The government of the United States is deeply concerned about the issues of international parental child abduction and child custody/visitation with respect to its close friend and ally, Japan. Due to its sole-parent child custody system, its reluctance to join the Hague Convention on the Civil Aspects of International Child Abduction[1], and the fact that it has never returned a single child abducted from abroad to his or her rightful home, Japan has earned an international reputation as a safe haven for kidnappers. Over the past several years, U.S. lawmakers have begun making concerted efforts to end the tragic situations affecting a great many American families due to Japan’s antiquated family law system and its inexplicable disregard for international norms.
The U.S. State Department’s Office of Children’s Issues states there are 123 active cases involving 173 American children who have been abducted from the U.S.A. and who are now being held in Japan in violation of American law.[2] Many of the Japanese nationals guilty of these abductions have court orders against them and are subject to arrest by the F.B.I. and prosecution by federal courts for kidnapping should they again set foot on U.S. soil.[3] In the United States and most advanced nations child abduction is an extremely serious crime. Japan lags far behind other developed countries by failing to recognize this common sense, international consensus and by not legislating child abduction as a punishable criminal offense.
In addition, it is estimated that at least 3,200 American children residing in Japan are being denied access to one of their parents post-divorce.[4] This is due to the Japanese child custody system that awards shin ken (parental rights) to only one parent upon divorce and also severely limits child access to the other parent thereafter. In the case of international marriages, foreign parents are greatly disadvantaged in Japanese courts,[5] and Japanese nationals almost invariably receive sole parental rights. Once shin ken is granted to one parent, the other has no further legal rights with regard to his or her child’s upbringing, and the shin kenholder may deny that other parent access to the child at his or her whim. Since no specific provision for visitation exists under Japanese statute, and since Japanese courts in any event lack any real enforcement powers, the left-behind parent – i.e., the parent without parental rights – is at the mercy of his or her former Japanese spouse. Child visitation is frequently denied outright or severely curtailed, and in any event is always subject to the caprice of the shin ken holder.
These two issues – international parental child abduction and child custody/visitation – are beginning to strain the friendly relations the United States and Japan have enjoyed since the end of World War II. In response to the seriousness of this situation, the U.S. House of Representatives has recently begun taking steps to address what the United States considers to be gross violations of the human rights of American children and their parents by the Japanese nation.
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H.Res. 1326 (House Resolution 1326)
H.Res. 1326[6] is a non-binding resolution approved on September 29, 2010, by a vote of 416 to 1 in the U.S. House of Representatives. The resolution 1) “condemns the abduction and retention” of American children by Japanese nationals and demands their repatriation, 2) calls upon Japan to create enforceable laws that guarantee American parents the right to visitation with their children, and 3) urges Japan to accede to the Hague Convention so that established legal mechanisms can be relied upon to resolve custody disputes arising from the dissolution of international marriages. H.Res. 1326 reflects the overwhelming feeling among the American public and its lawmakers that Japan should immediately address these very serious issues for several reasons.
First, removing American citizens from their domiciles in the United States without the consent of the American parents is, as the resolution states, “a violation of their human rights and international law.” As a friend and ally of the United States, Japan should act immediately to end this tragic injustice and restore the family relationships its policies have damaged or destroyed, and thenceforth ensure that the rule of law applies in a reciprocal fashion between the two countries.
Additionally, Japan is viewed as an outlier among the community of advanced nations for not providing for joint custody or enforceable child visitation following divorce. The end result of these policies is frequently the American parent’s complete loss of access to his or her child. Essential family bonds are thus traumatically severed, and the children affected by this tragedy often have to contend with the effects of Parental Alienation Syndrome (PAS), a psychological condition which can result in depression; loss of community; loss of stability, security, and trust; excessive fearfulness, even of ordinary occurrences; loneliness; anger; helplessness; disruption in identity formation; and fear of abandonment.[7]
Finally, Japan is currently the only G-7 country that has not signed the Hague Convention on the Civil Aspects of International Child Abduction, adopted thirty years ago in 1980. This multilateral treaty, in which 82 countries participate, provides a legal means to effect the expeditious repatriation of children abducted from their domiciles in their home countries, termed in the treaty the child’s “place of habitual residence.” Japan’s resistance to becoming a signatory to the convention and its oft-repeated claims that it is “studying” or “considering” the issue are adversely affecting the country’s diplomatic and economic relations with its strategic allies and important trade partners. Over the past two years, through a series of five démarches, or diplomatic initiatives, America has joined with 11 other nations plus the European Union to pressure Japan to accede to the treaty and also to resolve outstanding child custody and visitation issues.[8] These démarches are evidence of the increasing frustration the global community now feels over Japan’s lack of progress with respect to this important human rights issue.
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H.R. 1940 – The International Child Abduction Prevention Act of 2011
H.R. 1940, entitled The International Child Abduction Prevention Act of 2011[9], is a bipartisan bill pending before the U.S. House of Representatives that specifically addresses the joint problems of international parental child abduction and loss of child custody/visitation under the Japanese legal system. If approved by the House, H.R. 1940 would, as a federal statute, have the force of law, and would require specific action on the part of the U.S. government to resolve these issues. Among other things, H.R. 1940 would establish an Office of International Child Abductions in the U.S. Department of State and provide for punitive measures for countries deemed to have exhibited a “pattern of non-cooperation” with respect to the protection of children’s rights. As explained in one summary of the proposed bill,[10] H.R. 1940 would create an Ambassador at Large for International Child Abductions whose primary responsibilities would be to:
1) promote measures to prevent the international abduction of children from the United States;
(2) advocate on behalf of abducted children whose habitual residence is the United States;
(3) assist left-behind parents in the resolution of abduction or refusal of access cases; and
(4) advance mechanisms to prevent and resolve cases of international child abduction.
In addition, the act would direct the President of the United States to:
(1) annually review the status of unresolved cases in each foreign country to determine whether the government has engaged in a pattern of non-cooperation and if so, designate such country as a Country With a Pattern of Non-cooperation;
(2) notify the appropriate congressional committees of such designation; and
(3) take specified presidential or commensurate actions to bring about a cessation of non-cooperation.
Thus, passage of H.R. 1940 in the House will radically alter the friendly and cooperative relationship America and Japan have traditionally enjoyed, absent a sincere effort on Japan’s part to resolve the fundamental human rights issues the bill addresses. It is hoped that Japan will voluntarily do the right thing and, as U.S. Assistant Secretary of State Kurt Campbell cautions, not “wait until the situation has become so tense and so difficult that it appears that Japan is only responding to pressure from the United States.”[11]
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