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Tuesday, Nov. 24, 2009
THE ZEIT GIST
Every husband a potential 'abuser'
Claims of 'violence' offer catch-all way to cut fathers from kids' lives
Last in a two-part series
Before the Christopher Savoie case hit the news, Japanese commentators on the Hague Convention on international parental child abduction had already begun fretting over the completely unsubstantiated assertion that "almost all" instances of children being brought to Japan involve a Japanese mother fleeing from an abusive foreign father. Would Japan signing the convention result in them being sent back? they asked. This is not an unreasonable concern, though I doubt any of these commentators would go so far as to approve of foreign parents taking children out of Japan to escape an abusive Japanese spouse.
Most advanced nations have fairly extensive legal regimes designed to help prevent domestic violence and protect its victims. For this reason, while the Hague Convention contains an exception that says a child does not have to be returned if "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation," the prevailing view has been that this means children should not be returned to war zones, famine conditions or other extremely harmful environments — claims of domestic violence, however, should be left up to the legal system of the country from which the child was abducted, just like child custody issues.
It is debatable, of course, whether Japan or any other country deals with domestic violence adequately. There is also a growing view (including among some U.S. courts dealing with Hague cases) that the convention does not adequately provide for situations where a parent is seeking to protect herself or her children from domestic violence. Although the convention remains silent on the issue, a recent Yomiuri editorial calling for "careful consideration" of cases involving domestic violence suggests that Japan might simply apply the existing exceptions to prevent the return of children even if it does join.
The problem is that Japanese courts and other governmental agencies appear to deal with domestic violence by applying two simple rules of thumb: that domestic violence is only committed by men against women and children, and that almost any conduct (by men) constitutes domestic violence.
I have met Japanese and foreign men alike who are shocked to find themselves accused of domestic violence in divorce or child custody proceedings, only to discover that the "violence" refers to a past argument in which he raised his voice. This is because, as with abduction itself, domestic violence has a very fuzzy definition. A 2001 article by a Japanese family court investigator is instructive: It lists a number of categories of behavior that she considers to be violence, including physical violence, verbal violence, psychological violence (which can include being excessively quiet and non-responsive!), sexual violence and "educational violence." With the notion of "violence" now encompassing a variety of types of conduct that do not involve physical strength, one would expect it to apply increasingly to women also, but no, I have never seen or heard of a single case where a wife or mother has been found to have committed even "verbal violence."
Based on conversations with Japanese lawyers and the cases I have heard of, it appears relatively easy for a woman to get a restraining order against her husband — one that prevents him from even seeing his children for up to six months — and other dispositions that prevent him from getting information about his own children from schools and government agencies, based on an assertion of violence. Combine this with the all- encompassing definition of "violence" and the fact that there seem to be few (if any) constitutional or other substantive rights in the parent-child relationship in Japan, and that relationship can be terminated with shocking ease if the right buttons are pushed.
This is not to say that domestic violence is not a problem in Japan, or that men do not perpetrate it against women (I have heard some horrific stories on this subject in Japan also). Restraining orders and the withholding of information are vital protections in cases where the safety of adult or child victims of abuse is at risk. But at the same time, the system seems wide open to abuse, particularly in Japan's "winner takes all" regime of sole custody after divorce. Furthermore, as a number of studies in other countries have shown, domestic violence is a complex issue and involves abuse by both men and women in all sorts of relationships. Child abuse is similarly complex, with the Japanese government's own statistics showing that mothers are the primary (or sole) abuser in the majority of cases (though this of course may simply reflect that fact that mothers may also be the sole caregiver or otherwise spend much more time with the children).
While abuse may be a significant factor in some cases of abductions to Japan, the only one that immediately springs to my mind is that of Samuel Lui. According to his account, his child was brought to Japan 10 years ago by his Japanese wife after she had been arrested on charges of spousal abuse (although his California custody order was recognized in Japan all the way up to the Supreme Court, he was of course not able to get his child back). Regardless of how often it is actually the case, however, "Japanese women fleeing abusive foreign men" is probably a usefully simplistic way to both frame the issue on the Japanese side of the debate and set the stage for implementing the convention in a way that spares most judges the need to ever send children back.
Similarly, when confronting complex reality, Japanese courts seem to prefer simplistic rules that minimize the need to take responsibility for exercising judgment in the resolution of a case. Thus, "domestic violence is committed by men against women" is probably a useful rule of thumb in the same way as "always give custody to the mother" is. No judge or other court bureaucrat is likely to ever be blamed for following either of these rules. Of course, both would seem to be problematic assumptions in light of constitutional and statutory requirements mandating gender equality in family law, but the use of simplistic rules to facilitate efficient, blame-free case resolution probably trumps such considerations.
Furthermore, simply assuming all assertions of abuse (by men) to be true is probably much easier than actually dealing with the difficult evidentiary issues such cases can present. For example, over two years ago a foreign father lost custody of his child to his deceased Japanese wife's parents based on allegations of child abuse. A central piece of evidence in his trial was a statement supposedly made by his 4-year-old daughter describing the alleged abuse. At the time, however, the only person who supposedly heard this statement was the grandmother who was seeking custody. The local child welfare agency that acted on her report did not even meet the child until after they had taken her into protective custody (which involved simply leaving her with the grandparents) and litigation to remove the father's custody rights had begun. Even then, according to the father, they only conducted an interview because he demanded they do so, expecting it would show the allegations to be false.
Indeed, the child did not repeat the alleged statement to the agency investigator, who in any case refrained from asking too many questions "in the best interests of the child." Perhaps feeling some pressure to find the child "damaged" in some way, the investigator did note that the 4-year-old child "had a short attention span" and "did not respond well to long questions," suggesting a depressing lack of understanding of children on the part of an agency charged with their welfare!
A court investigator subsequently met with the agency, but essentially relayed back to the judge the time line of the case and the original alleged statement reported by the grandmother. The fact that this was by now double or triple hearsay supposedly spoken by a 4-year-old child neither he nor the investigator had even met, and reported by a party with an obvious motive to lie, did not stop the judge from declaring the child's words to be "accurate" and stripping the father of custody (the case is currently on appeal).
That all contact with a child can be cut off based on a barely substantiated assertion of abuse is rather horrifying from the standpoint of a parent. But it makes sense from the standpoint of the courts and other bureaucrats. Once abuse has been asserted, who wants to be responsible for a child or mother being killed or maimed because the assertion was ignored? It is probably the same dynamic that explains Japan's high conviction rate — a good percentage of the people arrested for crimes or accused of domestic abuse probably are actually guilty, so the safest thing to do is treat all of them as guilty. Unfortunately, in child custody litigation this mentality is ripe for abuse, which nobody seems interested in addressing (I once asked the head of a child welfare agency what procedures they had to prevent spurious allegations of abuse from being used to win child custody cases — his answer, essentially, was "none").
Thus, if Japan does sign the Hague Convention, the notion that "almost all cases involve Japanese women fleeing abusive foreign men" may prove to be a self-fulfilling supposition. Mothers bringing children back to Japan will know in advance (or afterward when getting legal advice in Japan) that asserting abuse will make it more likely that the children will not be sent back. Even though most women in this situation will probably not go so far as to lie about abuse, they will not have to, since the concept is now so broadly and subjectively defined that it probably be truthfully asserted (by women) in the context of almost any marriage that turns into a hostile divorce. Judges, lacking any real power to actually send children back, may find it easier to just use the alleged abuse as an excuse for ratifying the status quo.
Japan signing the Hague will be a step forward even if its immediate impact is nothing more than an expression of intent. Perhaps Japan will even take steps to amend its domestic laws to provide greater remedies for enforcement. Perhaps my cynicism will prove unwarranted. But I am cynical because my approach to this issue is not based on what Japanese law does or doesn't say, but on what is in it for the judges and other bureaucrats. From that standpoint, if Japan does sign the Hague, the question in my mind will be, "Who wants to be the first judge in Japan to send a child back?" Add "when there are allegations of abuse" to that question and perhaps others will find themselves becoming cynical also.
Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Send comments on this issue to firstname.lastname@example.org