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Parental Kidnapping is not considered a crime in Japan, in particular when committed by Japanese citizens
Japan does have a law that makes kidnapping of a minor a crime: Article 226 of
the Penal Code. See our page on "Possible Criminal Penalties in Japan for
Parental Abduction To Japan" for details of this law. But the law is very general and does not specifically define the meaning of kidnapping, and does not address in any way whether a child could be kidnapped by a parent.
Further, an October 19, 1993 Supreme Court ruling fundamentally legitimizes parental kidnapping by saying that in such a situation, the Habeas Corpus Law cannot be used to recover a
child, unless the abduction "clearly deprives" the child of happiness. Accordingly,
it is reportedly common knowledge among Japanese legal professionals that parental abduction in
Japan is routine. A lawyers group has even written a reference manual describing measures to proactively protect against against parental
abduction; such measures being tantamount to abduction themselves since the best way to protect against abduction is cutting off all
contact with other parent. [ADD REF TO BOOK]
The police appear willing to apply Article 226 of
the Penal Code only
against foreigners like Engle Nieman and in select high visibility cases between Japanese, such
as the case when the abducting parent was a former judge. If they did not apply it in the later case, then the public might lose
trust of the judiciary in being able to enforce laws, and they would look impotent. (The former type, we believe to have a racially discriminatory basis.) The following articles pursue the idea that the
Japanese legal system only pursues enforceability as far as is necessary to maintain its own credibility.
Child custody
in Japan isn't based on rules; San Francisco Chronicle; August 27, 2006. A law professor discusses why
institutional reasons rather than cultural ones are to blame for bad family law in Japan. Much of Japan's family law
is based on the need to cover up the fact that Japanese courts are powerless to enforce their own decisions. It
contains an example of culturally biased opinions regarding visitation made by a prominent "family expert" in a book on
visitation, as well as descriptions of apparently mainstream anti-visitation opinions expressed by family court mediators.
Both of these, until now, were only available in Japanese. (cached
copy)
Conveniently, the previously mentioned law, does not define 'kidnapping' much less mention parental kidnapping. So in order to use the above law, you must define
what it means to kidnap a minor. Certainly if an unknown third party takes a child, it is kidnapping. But if both parents have joint custody through marriage, is that
kidnapping? What about when one parent keeps the child against a court custody order? Well I don't understand why that is not
kidnapping, but it happens all the time and goes unchallenged by the police. Since
Article 226 of the Penal Code is a criminal law, its up to
the police to enforce it. So for this law to be effective, you would need to have a specific definition enshrined in the law, that parental kidnapping
is a crime. Other countries have this, if for no other reason than that the
Hague Convention on the Civil Aspects of International
Child Abduction has the force of law. But Japan apparently does not. The articles referenced in the evidence
section below show that the definition of "parental kidnapping" is something that needs to be argued up to the Supreme Court
in Japan, with differing results.
When referring to international parental kidnapping, the status quo is much clearer than the letter of the law. International Parental
Abduction is simply not considered a crime in Japan. A Japanese bringing a child back to Japan in violation of foreign
court orders, does not count as kidnapping in
Article 226 of the Penal Code. This is backed up by the following note
from the US State Department in its web page titled, "International
Parental Abduction - Japan" (cached copy).
"In practical terms, however, in cases of international parental child abduction, foreign parents are greatly
disadvantaged in Japanese courts, both in terms of obtaining the return of children to the United States, and in achieving
any kind of enforceable visitation rights in Japan. The Department of State is not aware of any case in which a child taken
from the United States by one parent has been ordered returned to the United States by Japanese courts, even when the
left-behind parent has a United States custody decree. In the past, Japanese police have been reluctant to get involved in
custody disputes or to enforce custody decrees issued by Japanese courts."
A report written by the Directorate of Legal Research
of the Law Library of Congress in response to requests from the US Congress. (cached copy)
is even more direct, saying the following.
Some countries, like Indonesia and Japan, simply have not seen any benefit in joining the 1980 Convention,
because removal of children from their territory is not currently a problem. It has been pointed out that for Japan, “
politically, there is no strong incentive” to ratify the 1980 Convention, because it would have to return abducted children
to foreign spouses. At present, Japan does not enforce child custody orders from foreign countries, nor is parental
kidnapping deemed a crime there.
Maura Harty, the United States Assistant Secretary for Consular Affairs released a statement on the
US Embassy website in Tokyo (cached copy) from a December 3, 2005 seminar on parental abduction for consular officers held at the Canadian Embassy. It said:
"Unfortunately, in Japan there is no mechanism for resolving child abduction cases. In fact
parental kidnapping is not considered a crime."
A news story from the Hawaii Star Bulletin on
the abduction of a local child by a Japanese parent quotes Lena Alhusseini, international case specialist for the National
Center for Missing and Endangered Children (NCMEC), a US government sponsored non-profit, on the subject.
Even if federal kidnapping charges are filed against the suspected abductor and the FBI gets involved, the suspect
typically doesn't face prosecution as long as he or she remains in Japan. Japan won't authorize extraditions in
such cases, said Lena Alhusseini, international case specialist for the national center. "Parental
abduction is not a crime in Japan," she said.
A Washington Post article in 2003 entitled "Divorced
From Their Children" and written jointly by a western and Japanese reporter claims no less than three times that
parental abduction is not a crime in Japan. (except apparently when committed by a foreigner...)
"If a Japanese parent whisks the children away, like Reedy's wife did, there is no legal remedy. It is not treated as a
crime."
"They are wanted by the FBI and Interpol, but the [police] say abduction by a parent is not a crime in Japan," he said
in a telephone interview. "I just want my children back."
"Japan's stance that parental abduction is not a crime can change when a foreigner is the abductor."
In a 1999 article in The Daily Yomiuri, a
major Japanese newspaper, reports that
"According to Tokyo-based attorney Michiko Kanazumi, cases of parents being unwillingly shut out of their children's
lives by other parents are on the increase in Japan--and many are tantamount to abduction. 'In Japan, parental child
abduction is not a crime,' she said."
Online magazine ZMag relates this about parental abduction in
Japan.
"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."
The articles section of this page appears show that perhaps the legal system is starting to come to grips with this
issue. But following the theme of the article below, they could also be viewed as legitimizing the status quo of the
"first to abduct." The suspended sentence, as opposed to real jail time may be viewed as a preventative measures
against further abductions that would create further work for the court, rather than a punitive measure to punish the
abductor. In any case, they show that the penalty is merely suspended. In any case, the abduction by the former
judge shows that the more familiar you get with the system, the more useless you know it to be.
Child custody
in Japan isn't based on rules; San Francisco Chronicle; August 27, 2006. A law professor discusses why
institutional reasons rather than cultural ones are to blame for bad family law in Japan. Much of Japan's family law
is based on the need to cover up the fact that Japanese courts are powerless to enforce their own decisions. It
contains an example of culturally biased opinions regarding visitation made by a prominent "family expert" in a book on
visitation, as well as descriptions of apparently mainstream anti-visitation opinions expressed by family court mediators.
Both of these, until now, were only available in Japanese. (cached
copy)
Solutions We Want To See
- Japan must pass a law making parental abduction a crime, whether committed domestically or from overseas. This law must
recognize overseas arrest warrants for parental abduction and make it possible to extradite Japanese parents. The
determination of custody must be based on the concept of habitual residence prior to the abduction and except in unusual
circumstances should not fall under the jurisdiction of a Japanese court when the habitual residence was outside Japan.
In order to discourage an abducting parent from hiding, the statute of limitations on this law should only limit the period
in which a left-behind parent can file a criminal complaint. Once the complaint is filed, there should be no statute
of limitations if the abducting parent cannot be found. Likewise, child abduction should continue to be prosecutable
even if the abducted child reaches the age of majority in Japan.
Pass enforceable laws guaranteeing the return of abducted children to parents. These laws and regulations must be scrutinized
very carefully because it would be very easy to make these laws so that they rarely can be applied.
Allow parents whose children were abducted prior to the new laws to file criminal complaints, regardless of how far in the
past the alleged abduction occurred.
Articles
See more cases in the Habeas Corpus Law, Parental Abduction and Return of Children section of the page on Interesting Children Rights Related Court Cases In Japan.
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Oldest Son Taken, 25 year Old Father Apprehended (Japanese only); (English summary) Television Fukushima;
4/9/2007. (cached copy)
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Crime Spree - Foreigners who turn to Japan’s justice system for help find themselves ignored. Is incompetence to blame—or racism?;
Metropolis Magazine;
March 15, 2007. Several true stories of encounters between foreign residents of Japan and Japanese police. The last is about an in-country child abduction and how the police ignored the friend of the Japanese mother who had just beaten up
the foreign father, Steve Christy, and then detained him, helping the abducting Japanese mother get away. This seems to answer the question posed in the title. (cached copy)
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Japanese grandparents
kidnap granddaughter because they don't like man that divorced daughter is dating. October 14, 2006; Supreme
Court suspends 10 month jail sentence from lower court. It's unclear, but it sounds like the child has not been
returned yet. I call this the "OK for grandparents to kidnap" ruling. (cached
copy)
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Supreme Court
Decision: Father is a criminal for taking child while living separately from his wife; Asahi Shinbun; December 9, 2005.
(Article in Japanese only) A father who was separated from his wife took his 2 year old son while his wife and the child
were coming back home from nursery school. There is nothing written about the couple being divorced, only 'while
separated.' The judges concluded that it was a crime of abduction. The father was sentenced to 1 year in prison, suspended
for 4 years. (cached copy)
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Lawyer arrested over
daughter's abduction; Japan Today, October 23, 2005. A lawyer and former judge
abducts his 3 year old daughter after his wife was granted custody and then had the grandparents adopt the daughter.
This is interesting because the abduction took place on the day he was supposed to be participating in visitation
proceedings. (This tidbit is not in these articles but comes from someone who saw it on TV.) The
involvement of private detectives suggests he had to pay someone to even find out where his child was. Part of the
issue was also apparently that after getting custody, the mother then had the child adopted by her parents. This shows that
the more familiar you get with the system, the more useless you know it to be. Several articles appeared in Japanese
also. (cached copy)
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