Section 1.  Summary and Introduction

1.         On the occasion of the submission of Japan’s Second Periodic Report (the “Report”) on its implementation of The Convention on the Rights of the Child (the “Convention”) for consideration by the Committee on the Rights of the Child, we, a coalition of Japan-based and Japan-focused NGOs (the “Coalition”) led by the Japan Children’s Rights Network (the “JCRN”) and the Children’s Rights Council of Japan (the “CRCJ”), offers its congratulations both to the Committee and to Japan on their efforts in this important field of children’s rights and welfare.

 

2.         However, while acknowledging that the government of Japan has made considerable efforts to protect the rights of children in Japan, we would like to bring to the attention of the Committee what our Coalition believes to be a systematic failure on the part of Japan to uphold the rights of children of failed marriages and other forms of parental separation.  This continuing and persistent failure on the part of Japan in this area has had tragic results for the parents and children that our Coalition represents. 

 

3.         The Coalition consists of ten groups, including the CRCJ, the JCRN, the Fathers’ Website[1], the Center for Japanese-Filipino Families, United For A Multicultural Japan, The Community, Japan With Kids, and others.   Together our organizations represent thousands of Japanese children and one of their parents, who in the course of marital dissolution, separation or parental abduction have been denied virtually all access to each other.  A brief description of each Coalition member group appears in Appendix A.  In addition to its members in Japan, the Coalition represents members who are nationals of and/or resident in nations around the world including other Convention signatories.

 

4.         In the experience of our members, the denial of children’s access to both parents is the result of Japan’s failure to adopt and implement laws and regulations that faithfully carry out the Convention’s requirements that, among other things, signatory nations:

1. Recognize the rights of children to know both parents, regardless of marital status.
2. Ensure that children are able to maintain personal relations and direct contact with both parents on a regular basis, even in the event of separation from them.
3. Ensure that, absent other circumstances, a child is raised primarily by his or her parents, regardless of marital status.
4. Allow development of a child’s respect for his cultural identity, language and values; and for the national values of the country from which he or she may originate, regardless of marital status.
5. Implement these rights and obligations without discrimination, regardless of gender, national origin, marital status or other factors.

 

5.         In our Thematic Review of the Report, we indicate several areas where Japan has either failed to adequately report on the situation or has omitted problems of which it should be aware.  Following this, we present five Subject Reviews of areas in which our Coalition believes that Japan is failing significantly to uphold its obligations as a signatory.

 

6.         The following is a summary of our principal issues:

 

1. Child custody and visitation grants in Japan routinely deny a child all meaningful contact with one parent, and for all practical purposes, both are unenforceable.

 

2. The Japanese legal system discriminates against children and their parents based upon gender, ethnic origin, marital status and legitimacy.

 

3. Child abuse and other psychological factors are not adequately recognized in court decisions on custody.

 

4. Japanese Immigration regulations deny a foreign parent the long term residency in Japan necessary to maintain contact with his or her child, and hinder reporting of child abuse.

 

5. Japanese laws and Family Court practices legitimize international parental child abduction.

 

7.         To remedy these deficiencies, the five detailed Subject Reviews encourage the Committee to urge that the following measures be taken by the Government of Japan immediately, in accordance with its obligations as a signatory nation:

 

1. Enact national laws requiring adequate visitation between a child and his or her non-custodial parent.  Establish visitation guidelines including but not limited to (i) minimum unsupervised visitation hours per week; (ii) weekly overnight stays; (iii) separate vacation time per year allowing overseas travel when one parent is not a Japanese citizen, subject to adequate protections to ensure return; and (iv) permissible conditions for denial of any of these guidelines. Consult the many publicly available reference guidelines, such as those referenced at www.crnjapan.com/foreign_law/usa/en/sample_visitation.html

 

2. Combine visitation proceedings with custody proceedings.  Require it to be standard practice that preliminary visitation rights are awarded immediately upon commencement and enforced throughout.  Absent special circumstances, a child should not go without seeing a parent for more than two weeks while proceedings are under way.  Whether the parties respect such rights must be a key factor in the ultimate custody award.

 

3. Completely separate custody and visitation determinations from divorce, to prevent access to children from being used as a bargaining tool in divorce.

 

4. Enact national laws that criminalize denial of visitation, interference with custody, and concealment of children from a natural parent.  These national laws must require government agencies to assist a natural parent in finding his or her child.

 

5. Require that all judicial custody and/or visitation determinations state specifically why the determination is “in the best interests” of the children it affects.

 

6. Modify Articles 818 and 819 of the Civil Code to permit joint custody of any child, not only children who parents are married. Enact a national law guaranteeing this right to joint custody after divorce or birth out of wedlock, except in cases of documented threat to the safety and welfare of the child as determined by independent qualified experts.

 

7. Fill Family Court mediator and examiner positions only with candidates who have studied divorce, child custody mediation and child psychology, have served as an intern and have proven competency through examination.

 

8. Enact national laws that (i) give a natural parent clear legal priority over other relatives in custody determinations, should the custodial parent become unable or unwilling to care for the child; and (ii) require notification and permission of both natural parents before an adoption or change of custody of a child can be completed.

 

9. Maintain a national registration database of contact information for foreign parents of Japanese children in order to facilitate notification and granting of permission for adoptions and custodial changes.  Require courts to consult this database before allowing any legal change of status of a child, and increase the maximum amount of time before a status change becomes permanent from the current 6 months to 3 years, in the case of a parent being un-contactable.

 

10. Enter contact information for a foreign parent either into a child’s Family Registration or into an alternate national registration database so that a Japanese child is always able to locate a foreign parent who has registered.

 

11. Enact national laws clearly establishing the non-preference for a parent of a particular gender or national origin, to counter the Japanese judiciary’s current obvious yet unstated preference for female parents in custody decisions.

 

12. Gather and make public a breakdown of statistics with regard to custody and visitation awards based on citizenship of the parents involved, as Japan does for marriages, divorces, births and deaths.

 

M.   Investigate in conjunction with one or more NGOs, claims of discrimination based on ethnic and national origin in the Family Courts.  Provide a determination, statistics supporting such determination, and measures taken to correct any problems found in the Third Periodic report to the Committee.

 

14. Reform Article 819 of the Civil Code of Japan, to give the father and mother shared custody of an acknowledged child born out of wedlock, rather than just the mother, as is the case under current law.  In consideration of the similarities to post-divorce situations, existing articles of the Civil Code should apply to such cases.

 

15. Amend the Law for the Prevention of Child Abuse to establish within the national framework, that denial of a child’s access to a parent constitutes a form of child abuse.

 

16. Sanction lawyers who persist in recommending that their clients deny access to the other parent as a bargaining chip or tolerate this sort of behavior in their clients.

 

17. Amend  immigration laws so that foreign parents of a Japanese child qualify for residency visas, including permanent residency visas, without the letter of guarantee currently required for the granting of such visas.

 

18. Amend immigration laws so that a non-married and non-custodial parent of a Japanese child is eligible for a long-term visa permitting employment, without the letter of guarantee currently required for the granting of such visas.

 

19. Grant permanent residency to a non-married and non-custodial parent of a Japanese child under the same accelerated time frame and favorable conditions applicable to a spouse of a Japanese citizen.

 

20. Promptly accede to the Hague Convention on the Civil Aspects of International Child Abduction and implement its provisions in domestic civil and criminal legislation.

 

21. Expedite the court processing of foreign child custody and visitation orders when a Japanese parent has removed the child from a foreign home or otherwise fails to respect such orders. 

 

22. Release statistical information broken down by gender and citizenship, citing the number of arrests under the provisions of the law cited in paragraph 241 of the Report.

 

8.         To substantiate the Coalition’s assertions, the experiences its members and, more tragically, their children have suffered with the Japanese judicial, criminal justice and immigration authorities are available for review on the Internet web pages noted here, as articles published in international press and as personal narratives.  There are hundreds of other similar stories that remain undocumented.

 

http://www.crnjapan.com/pexper/en/   (English)

http://www.crnjapan.com/articles/en/  (English)

http://www.fatherswebsite.com/history.html    (Japanese)

 

9.         Sadly, the Coalition notes that a number of non-Japanese parents, are afraid to identify themselves in connection with this submission because they fear retribution by the Japanese government in the form of denial of visas to enter or remain in Japan -- visas which are necessary in order to continue with legal proceedings in Japan regarding custody and visitation rights, and necessary in order to maintain contact with their children.

 

10.       Our Coalition welcomes the opportunity for further dialogue with both the Commission and the relevant authorities in Japan.  In light of the concerns regarding potential reprisals from the Japanese immigration or other authorities noted above, the Coalition hopes that such dialogue would include clear assurances from the Japanese government that none of its members will be subject to any direct or indirect sanctions or reprisals by any agency of the government of Japan or by any legal arm of Japan for participation in such dialogues.

Section 2.  Table of Contents

Section 1.  Summary and Introduction. 1

Section 2.  Table of Contents. 5

Section 3. Thematic Review of Japan’s Report 6

Introduction. 6

I.     GENERAL MEASURES OF IMPLEMENTATION.. 7

A.  The position of the Government of Japan with regard to its decision to make reservations. 7

B.  Measures to harmonize national laws and policies with the provisions of the Convention (art. 4) 7

K.  International cooperation for implementation of the Convention. 7

2.  Educating civil servants who have duties concerning children. 7

II.    DEFINITION OF THE CHILD (art. 1) 8

B.  Age limitation applied to legal capacity in Japan. 8

III.   GENERAL PRINCIPLES. 8

A.  Non-discrimination (art. 2) 8

B.  Best interests of the child (art. 3) 8

IV.   CIVIL RIGHTS AND FREEDOMS (arts. 7, 8, 13-17, and 37 (a)) 8

A.  Name and Nationality (art. 7) 8

V.    FAMILY ENVIRONMENT AND ALTERNATIVE CARE. 9

A.  Parental guidance (art. 5) 9

Progress and problems in implementing article 18, and future goals. 9

4.  Ensuring the provision of information about the whereabouts of absent  members(s) of the family  10

VI.   BASIC HEALTH AND WELFARE. 10

VII.  EDUCATION, LEISURE AND CULTURAL ACTIVITIES. 10

VIII. SPECIAL PROTECTION MEASURES. 10

Section 4.  Child custody and visitation grants in Japan routinely deny a child all meaningful contact with one parent, and for all practical purposes, both are unenforceable. 11

Section 5.  The Japanese legal system discriminates against children and their parents based upon gender, ethnic origin, marital status and legitimacy. 17

Section 6.  Child abuse and other psychological factors are not adequately recognized in court decisions on custody. 20

Section 7.  Japanese Immigration regulations deny a foreign parent the long term residency in Japan necessary to maintain contact with his or her child, and hinder reporting of child abuse. 21

Section 8.  Japanese laws and Family Court practices legitimize international child abduction. 23

Section 9.  Conclusions. 25

Section 10.  Dedication. 25

Appendix A: Description of this NGO Coalition Members. 26

 

Section 3. Thematic Review of Japan’s Report

Introduction

“The greatest fear that attacks fathers facing divorce

 is that they may never see their children again.”

 

Hiroshi Yamaguchi, THE RITUAL OF DIVORCE (Rikon no Saho), PHP Shinsho, 2003, page 110. (Translation from Japanese by CRCJ).

 

11.       The additional statistics from the Japanese Ministry of Health Labor and Welfare[2] cited below show that several major social trends in Japan have been omitted.  Critically, while the total number of marriages actually decreased in the eight years from 1995 to 2002, the rise in divorces over the same period in excess of 45%  is striking.  Tables 1 and 2 include figures for international marriages, defined as marriages in which only one partner possesses Japanese nationality.  Note that in both international marriages and divorces, the non-Japanese partner is a woman greater than 75% of the time.

 

Table 1

Trends in Marriages and Divorces in Japan