Source: http://www.zmag.org/Japanwatch/0303-kidnap.html
Frans Pau, a French-Danish national, is one of the many foreign citizens who have lost their children due to what seems to be a conspiracy -- though in some ways one of neglect -- between the Japanese legal system and Japanese spouses.
Pau and his wife, a Japanese Doshisha College graduate, met in Japan, married in Europe and soon had a young baby daughter. Things went smoothly until Pau was injured and left disabled in a plane crash. Shortly after the plane acident and while he was in the hospital, where he stayed over a year , his wife disappeared with the baby .
Two years later, he was able to find his daughter, in a children's home in Kyoto. The wife had abducted the child, but was not able to care for the baby herself and had given her up to the institution. Some 3 years later, with the help of the Family Court and of Japanese Christians, Pau was able to get the child enrolled in Notre Dame Primary School in Kyoto, but a few years later the child disappeared again. The mother had stolen her once more.
Isabelle, the girl's name, was a French citizen at birth, and Pau was able to win shared custody in French and Danish courts after they found the mother to be completely at fault for the divorce. He was given judicial rights, first by the French courts, and then by the Japanese Family Court in Kyoto, to take care of her for three months of the year in Europe, and to host or visit her any time in Japan. However, the reality is that Pau has not been able to see his daughter for more than a few times and a few hours at a time, and in Japan only, for more than a decade. The rights that he was granted in the French court, and which were initially confirmed by the Japanese court until 2002, were all disregarded by the mother, and there was no way to enforce anything. Even worse, enormous constraints were put to the rare visits he made, to take away any pleasure for Isabelle, apparently in the hope that Isabelle herself would say she did not want to see her father. The father also had to travel at short notice and high cost all the way from Europe, for these one-hour encounters.
In desperation, Pau used several conciliations (chotei) and arbitrations (shimpan) in the Kyoto Court, but his wife refused to obey, and no penalties were ever imposed. He had run up against a wall -- the lack of legal protection in Japan for parents whose children had been abducted by the other parent, and the absence of execution powers around visiting rights .
Finally, he had the mother charged for having abandoned child and husband, plus for denying all hosting or visiting rights. She was sentenced in absentia to 18 months in prison and a fine of 690,000 euros. Interpol issued an arrest order, but this has not yet been carried out by Japanese authorities .
To add to the insult, knowing full well what had happened in the French courts, in 2002 the Kyoto Family Court reversed its earlier decisions and refused to hand over the daughter to him. It suddenly rejected his visitation rights, in contravention of the UN Convention on Children's Rights, which was ratified recently by Japan.
Furthermore, in 2002, a Kumamoto Court inexplicably allowed the child's first name to be changed to Maki, and the surname to be changed to the mother's name, without consulting Pau, who also had parental authority. This will make it difficult to trace her in the future, as no European court or civil registry will recognize such a decision.
Pau is currently trying to take legal action in Japan to reverse the last two rulings, including the one in Kumamoto. In parallel, French authorities are trying to get the criminal decisions executed in Japan.
However, his physical disability from the airplane accident, as well as the enormous costs involved in hiring lawyers,and travelling to Japan for no result, have made it in practice impossible for him to keep on with the case. His daughter is now a high school student, somewhere in Japan.
Pau only hopes that she will realize somehow that her father only wanted to give her all the opportunities which two cultures and parents can give, as well as all the love and contact which a father can give.
A book on the case, entitled "For Isabelle's skyld (For the sake of Isabelle)", written by Charlotte Langkilde, was published by L&H Forlag, Copenhagen in Denmark. It has yet to be translated into Japanese.
The problem of parents abducting children is a global one, and no country has a monopoly on it. Japan, however, seems to have particular problems that make it difficult, especially for foreign parents, to win the right to see their children, and more fundamentally to exercise the obligations and rights of being a parent.
In 1996, to right this situation, a group of parents who had had their children taken away by Japanese spouses formed an organization, CRC-Japan. The group is actually a branch of the Washington-based Children's Rights Councils, which works on the issue primarily in the United States.
Each of the stories provided by the group is tragic in itself. Margaret Leyman, a journalist living in Japan, was divorced from her husband, but unwittingly signed an agreement that included a clause giving custody of her son to the father. She tried to get visitation rights at least, but was turned down because, according to the court, as a foreign parent and a working mother she was not a responsible parent. She is no longer able to see her 12-year-old son. In her case, being a woman as well as a foreigner, may have made it more difficult to get custody.
Yamila Castellanos, a Chilean national of Cuban birth, had a traumatic experience of her own -- her baby daughter was literally stolen in Cuba by the Japanese father. She had left the baby with her parents in Cuba while traveling to the United States, but her former husband suddenly flew to Cuba and had the baby taken away from the grandparents. He then took the child back to Japan, and has denied all contact to Catellanos since, except for a 1-hour meeting that was granted when she travelled to Japan to try to get legal recourse. For her, the tremendous expense involved in flying to Japan from Chile sets up a particularly high barrier to pursuing a legal battle ﾑ and one which, judging from the many cases outlined by the CRN Japan website, would not likely end in victory.
On the CRN Japan web site (www.crnjapan.com), there are many other tragic stories like this, as well as much background information and ideas on how people can get involved or get assistance if they fall victim to a similar act.
The remaining part of this article is taken from a book chapter written by Frans Pau for the International Committee on Missing Children, on the background of the problem of child abduction in Japan, with some editing and additions.
Abducted Children
Why does the problem of abduction exist? It makes sense to think that if one parent of a separated couple takes the children, some legal system somewhere should issue a decision on the fate of the children, to make sure that they have not been abducted. In most cases, joint custody and parental authority seems naturally to be the best solution.
In the case of Japan, unfortunately, this logic does not hold. If one parent abducts children and brings them to Japan, and if legal and other means are not activated immediately abroad or in Japan, no support can be expected by Japanese diplomatic or domestic authorities. The child will likely remain with the abducting parent. This is because Japan has not ratified the Hague Convention, which forbids even parents from abducting children and bringing them across national borders. The Japanese legal system, in essence does not recognize the notion that parents can commit abductions of their own children.
If the abduction has been carried out inside Japan, to a location within Japan, Japanese police will also refuse to act unless physical violence has been committed. If this happens, the handling of the case becomes an issue solely of the violence and not the abduction. This is a familiar situation to people working on issues of domestic violence, where police will generally be loathe to intervene, saying it is a "family matter."
If one parent tries to take a child outside Japan, however, the situation can be complex. In cases that involve violence, the Japanese police can be both quick and brutal. In cases where there is no violence, but the child is a Japanese national or dual national, the police will act quickly and violently against the non Japanese abducting party as long as they have sufficient warning. Since there is no specific law in Japan making this a crime, they will use other means, by finding some irregularity with a passport or visa.
Japanese police in general do nothing, and refuse to collaborate with foreign authorities, if a Japanese parent forcefully takes a child to Japan from abroad.
The Lack of Domestic Laws
Some of the problems that foreign parents face actually stem from national laws, which apply to Japanese and foreign parents alike, rather than international treaties. Unlike many countries, where parental abductions are considered a form of child abuse, in Japan there are no domestic laws against such acts. Even if a Family Court makes a decision, it is only advisory, and not backed by procedures for their execution by social workers, police or others. This is well illustrated by a particularly bad Japanese role model -- Prime Minister Junichiro Koizumi -- who has consistently denied access to his former wife to the two children, now in the early twenties, that he took custody of when the marriage broke up.
Because of this lack of legislation, there is no way to bring a case to Civil or Criminal court. All matters of custody and parental rights are handled in powerless "Family courts," which can only use persuasion to achieve results.
Furthermore, Japanese family law does not provide for enforceable visitation rights, nor does it provide any framework for or definition of joint custody once parents are divorced. Because of this, even if an extra-judicial conciliation procedure, a judicial conciliation procedure ("Chotei"), or a judicial arbitrage ("Shimpan") grants visiting and communication rights, they cannot be enforced as they are not defined and no penalty is defined in one party refuses to abide by the terms set out. In fact, the only way to get any solution is if the two parents are willing to work together. Outside of this, the press and local news can be used as a weapon to make one party 'lose face' for not abiding by what was agreed.
In cases where a Japanese parent refuses to allow a foreign parent visiting rights, even when it is through blatant means, the police will never defend the victim parent, as there are no legal provisions for this in the civil or criminal/penal code .
It is reported that in some cases, the solution was reduced to an outright payment by one parent to get back the abducted child from the abducting parent, many of whom apparently seek enrichment.
Also, Article 24 of the Constitution of Japan guarantees that "in matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes." The "equal rights of husband and wife" are also guaranteed. In reality, however, these constitutional rights are not respected in the day-to-day Japanese legal and social systems
Even today, divorced parents who are not given custody are supposed to never see the children again and to cut off all contacts with the children. This seems apparent in the case of Prime Minister Junichiro Koizumi, who in addition to taking the first two children, has never had contact with a child who was only born after his divorce from his former wife.
It should also be noted that Japanese law does not recognize shared parental authority, and that all parental authority is granted to the parent which has taken or been granted custody (except for very special circumstances involving an incapable parent).
The International Issues
Being a divorced parent can be tough for anyone in Japan, whether Japanese or not. There are certain issues, however, that apply specifically to foreign parents whose children have been abducted to Japan.
At the international level, Japan has signed, but never ratified, most of the international treaties regarding parental child abductions or no-returns. More specifically, it has not ratified the Hague Convention on International Child Abduction. Thus, criminal procedures decided by a foreign court with reference to this Convention have no effect in Japan.
As several Japanese lawyers have stated publicly, Japan is probably the safest country in the world to abduct/kidnap a child to.
Japan has signed and ratified both the first and second versions of the UN Convention on Children's Rights. However, when requests are made for assistance by a foreign authority or by a foreign parent in Japan, it turns out that neither the Ministry of Foreign Affairs nor the Ministry of Justice have any single resource or office devoted to carrying out the assistance which Japan has committed to providing. This seems, then, to be a case of appearances being quite different from the day-to-day reality.
Moreover, when reference to the UN Convention is made in domestic courts, judges do not seem to be committed to the spirit of the Convention, which gives the child "the right to know and be cared for by his or her parents."
As a consequence, foreign Embassies and Consulates and foreign authorities are in effect powerless to intercede on legal grounds when Japan is involved in such cases
Denied Access
As a result of this lack of legislation, foreign parents are placed in a very difficult situation when they children are abducted.
Generally speaking, since Japanese law (domestic and international law in Japan ) offers no protection whatsoever, a parent denied contact to his/her child in Japan has no easy recourse to legal remedy.
The situation is really no better if the parent is Japanese or tied to Japan. There is no effective help to be found in any legal measure.
If the parent is not Japanese, and if the child does not have Japanese citizenship, custody or visiting rights can be gained if there is a foreign court order with enforceable conditions in some foreign country. In effect being granted visiting rights by a foreign court does not mean anything as this is not enforceable in Japan if the foreign parent is not allowed to travel to Japan. If custody is denied, or the child is not given back, the Japanese criminal police may provide assistance, meaning that what happens in practice is essentially arbitrary.
If the parent is non-Japanese and a foreign court order exists which is enforceable in another country, but if the child is believed to be Japanese (dual citizenship and other circumstances), the situation seems to be worse. Japanese authorities will do nothing to help the foreign parent. They will ignore the foreign court orders and pressure. In cases like this the attempt to protect a national seems to take precedence over legal decisions made outside.
In such circumstances, the natural intermediaries that parents will go to -- Japanese authorities, foreign authorities, legal bodies -- will all tell them to be patient and accept a compromise. Compromise and conciliation will be offered in the form of "go-betweens," by persons of moral authority (including lawyers) and religious persons. They are supposed to negotiate a "deal." The Family Courts are just one such "go between" -- and probably not the best. The Family Courts may be helpful if the abducting parent or abducting family environment are open minded, or in need of money. Quite often, apparently, hinting at a payment will solve many situations, especially between Japanese. When money is paid to get custody or visiting rights, money almost never goes to ensure the child's education, housing or living conditions, but rather serves as income for the abducting party.
However, if the conciliation does not get resolved quickly, or if the rights acquired are denied, it implies that the abducting party is obstinately opposed to any solution and probably would prefer to see the other parent "eliminated."
If this happens, conciliation is rarely effective. If the situation occurs in Japan and both parents are tied to Japan, there is not much that can be done. If the situation occurs in Japan but one parent has fundamental ties outside Japan (i.e. bi-cultural divorces), one member of CRC Japan said serious consideration should be given to getting the child, peacefully and without warning, out of Japan, and under the protection of a legal system and court order mandating custody or visiting rights to the non-Japanese parent. Such court orders must have been obtained in advance. The member also warned that the foreign courts may mandate that the abducting parent be given a chance to speak, and if the other party refuses, this leads to a long decision-making process. However in practice, even getting one's own child into your passport to take a child out of Japan is made very difficult by the victimized parent's own authorities.
The member also warned that the number of lawyers in Japan is small, and few of them deal with family matters. Apparently, when lawyers fail as intermediaries, they can actually contribute to the ruin of the parent they are hired to defend, through astronomical fees and even more astronomical travel expenses to endless unproductive meetings this parent must attend in person in Japan.
Foreign authorities in Japan might seem like another place to turn, but in fact there are difficulties. The fact is that that Japan has signed no agreement with any other country on issues such as child kidnappings. Thus, foreign consular or diplomatic officials will not contact Japanese authorities for fear of breaching the Diplomatic Vienna Convention.
The media is also a closed door to foreign parents. If the child is in Japan and is considered a Japanese national, the domestic media will normally refuse explicitly or in practice to cover the story, even if horrible, especially if it is detrimental to the image of a Japanese parent. The only way is then to use foreign media vectors read or seen in Japan, which will normally be only marginally efficient as they will not be in the Japanese language .
Hope for the Future?
Unfortunately, this problem is not going to go away. Legal divorce, as opposed to parents simply living separated lives, is becoming more frequent in Japan as it is in the rest of the world. More and more children are living with one parent only.
Some foreign governments have dispatched to their Japanese counterparts the President's of their Highest courts, to send a signal that bilateral agreements should be negotiated, especially when the number of mixed marriages is high. However, the Japanese government has always turned a deaf ear to such suggestions.
With a growing number of parents facing this situation, though, the role played by CRC Japan seems certain to grow in the future.