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Sunday, Nov. 15, 2009
Children pay the price when parents put their own feelings first
It is hard enough for a child to be shuffled back and forth for scheduled stays like a puck over the ice that separates divorced parents. Difficulty turns to tragedy when one parent takes it into their head to abduct the child and keep it out of reach of the other.
Added to that, when the parents have different nationalities or religions, the child may be caught in a particularly invidious, long-running parental snare.
The recent case of a father from the U.S. state of Tennessee who came to Japan to wrest his children from their Japanese mother highlights a worldwide problem. This American father of a 9-year-old boy and a 6-year-old girl was arrested in Fukuoka on Sept. 28, but released with a suspended indictment on Oct. 15. His wife, who took the children from the United States to Japan in defiance of a U.S. court's instructions, apparently refuses to give them up.
First of all, this is not only a problem occurring in so-called international marriages. I know of three Japanese couples who have found themselves in this very situation of high acrimony. In two cases the wives, and in one case the husband, refuse to allow the other parent to so much as see their children.
In Japan, also, the police are loath to become involved in such domestic dilemmas, while Family Court rulings on custody disagreements are nonbinding — effectively rendering them useless.
Article 766 of the Civil Code of Japan stipulates that the "rights and duties" of both parents are not affected by which one is granted custody. However, the Civil Code's failure to define "rights and duties" leaves the door wide open for the parent with custody to refuse visits for the flimsiest of reasons.
Whether the claims of the Tennessee man for access to or custody of his children are valid or not, a non-Japanese parent's rights regarding their children would be much more enforceable if Japan was a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. At present, 81 countries have signed on to that — but Japan is not one of them. The convention stipulates that a child must be returned to the country of its habitual residence, though in some cases that may be difficult to determine.
Last month, Foreign Minister Katsuya Okada reportedly told his visiting British counterpart, David Miliband, that his government would look into the issue of possible Japanese commitment to the convention. Certainly, until Japan does sign up to it, it will remain very hard for non-Japanese to assert any parental rights regarding children of theirs who have been literally abducted to this country. Conversely, if and when Japan becomes a signatory to the convention, that would also benefit a divorced Japanese parent whose child or children "habitually" lived here but had been abducted elsewhere.
In fact, the U.S. State Department Bureau of Consular Affairs has stated that, as of Oct. 31, 2009, it is "not aware of any case in which a child is taken from the United States by one parent [and] has been ordered returned to the United States by Japanese courts, even when the left-behind parent has a United States custody decree."
In other words, so long as Japan remains beyond the reach of the Hague Convention, which has been in force since 1983, custody rights decreed outside Japan are ineffectual.
While the U.S., Canada, most of South America, Europe, South Africa, Australia and New Zealand have signed up to the convention, virtually none of the countries in Asia or Africa has. So, irreversible child abduction across national borders is by no means a Japanese preserve. In India and Malaysia, for instance, parental child abduction is not a crime; in Pakistan, a Muslim country, the father alone decides whether a child of his may leave the country, and it is almost impossible for a non-Muslim mother to gain custody there of a child born to a Muslim father.
What is at work here is not a legal nicety. It is the irrational call of blood and faith, both of which are seen as determining factors in the very definition of such nations' ethos and culture.
Yet as the multicultural model of citizenship spreads around the world with the merging of national sovereignties, mass immigration and widespread world travel, some countries have come to define their culture in broader and more liberal terms than the ethnically monocultural way they cherished in the past.
Australia, for instance, has now gone from being a provincial, racist backwater to a cosmopolitan and multicultural country in the span of a generation. Ireland, Sweden, Germany . . . these countries have also evolved, and their national identification with a single close-knit ethnicity is in genuine flux. A person in Norway can be a Norwegian by citizenship but a Romanian by nationality (that being the place where they were a native) and an ethnic Roma all at the same time. Their citizenship — not white skin, blond hair, Norwegian ancestry or Lutheran beliefs — makes them Norwegian.
Yet although ethnic Korean residents of Japan can become Japanese citizens, they will generally not be recognized as being "real" Japanese by most of their new compatriots — not, at least, for a generation or two. And if I ever took up Japanese citizenship — which would legally make me a Japanese — would my fellow Japanese citizens understand it if I told them I was a Jewish-American- Australian Japanese? Some of the time I don't even understand it myself.
But attitudes they are a-changin' in Japan, and I can foresee the present government, in about two years' time, adding Japan as a signatory to the Hague Convention. Then, as attitudes evolve — though the Japanese may not adopt a multicultural model of society based on mass immigration — they will gradually come to see beyond the blinkers of their ethnicity to include outside nationals.
Over the past four decades in Japan I have seen colossal changes in the ways Japanese people relate to non-Japanese — all for the better. There is now far more acceptance of non-Japanese in all facets of daily life; and Japanese people today are much more at home with nonnatives in their midst than ever before.
The step after tolerance and acceptance is inclusion. It is this inclusion — particularly of children born in Japan of foreign or mixed parentage — that will eventually topple the walls surrounding the old fortress of exclusive "Japaneseness."
When a nation defines its very existence in terms of blood or a particular faith, then children with one parent from outside those narrow parameters are bound to be considered the property of the parent from within them. What force can mere international law have when confronted with the irrationality of such parochial self-definition?
Children born of parents from separate countries or cultures carry a richness within them. Look at Barack Obama and how the two cultures in him have enriched the national self-image of Americans.
To deny one or another aspect of those riches is to steal something precious from the child. Parents, of whatever nationality, must accept a stark truth: This is about the child's life, not theirs.