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Saturday, May 21, 2011

ANALYSIS

Pact is welcomed but abuse concerns raised


Staff writer

Parents who can't see their children after an international divorce will welcome Japan's latest moves to revise its laws on returning children taken across borders while hoping that enforcement of the legal revisions will be swift.

At the same time, experts say new domestic laws are required to protect children and wives from domestic violence, a reason that is often cited by Japanese mothers who take their children to Japan without the consent of their non-Japanese fathers — an act often branded as abduction by nations that have signed the Hague Convention.

Cabinet members on Friday confirmed that the government will proceed with work to bring domestic laws in line with the Hague Convention on the Civil Aspects of International Child Abduction, paving the way for Japan to sign it.

"I remain cautiously optimistic," said Christopher Savoie, an American in Tennessee whose former wife took their two children to Fukuoka Prefecture in summer 2009 without his consent. "I will know that Japan is acting in good faith as soon as the wheels are up on one kid's plane ride home."

The Hague Convention aims to prevent the international abduction of children by a parent without the agreement of the other parent and to enforce the return of such children to the country from which they were abducted.

The convention also stipulates in Article 13 that the return of children is not mandatory if doing so imposes grave risk of exposing them to physical or psychological harm.

It may take a long time for the government to draft the legislation because lawmakers are split on the issue. Some Diet members say they want to protect Japanese mothers, who have cited violent partners as the reason for unilaterally taking their kids to Japan, while others want to support foreign men who can't see their children.

Among the Japanese involved in such cases, women make up the majority of the child takers. But in rare cases, foreign men or women, or Japanese men, take children across international borders as well.

Takao Tanase, a lawyer specializing in parental child abductions, praised the government for taking concrete measures toward signing the Hague Convention.

"I think the government is serious about signing the convention," he said.

Tanase has long worked on child abduction cases and has developed his own proposal for a domestic law.

In his version, which Tanase calls the law promoting joint child rearing and visitation after divorce, a parent would be prohibited from taking a child from the other parent without prior consent, and a child-rearing plan would have to be agreed upon before granting a divorce.

Currently, it is not a crime in Japan to take one's own child from the other parent without prior consent, and prior agreement on child rearing is not required.

Tanase's proposal says Japan should allow shared "shinken," or parental rights — a Japanese word that is roughly equivalent in meaning to custody. Japan only grants parental rights to one parent in a failed marriage.

His proposal would also stipulate that a parent is allowed to take his or her children from the other parent if violence or other types of abuse are feared.

Many Hague signatory countries have similar provisions on abuse. Of the children who were asked to return to their former country of abode in compliance with the Hague Convention, only about 30 percent were ordered to return by family courts in the countries to which they had been taken, according to the division in charge of the parental rights issue at the Foreign Ministry.

Tanase said the provision in his proposal may not be able to prevent family courts from wrongly recognizing false abuse claims, although it is necessary to persuade some lawmakers who support domestic violence victims.

Tanase argues that Japanese family courts tend to recognize mothers' claims of domestic violence too easily. A parent deemed abusive can rarely obtain parental rights, and those without parental rights can rarely see their children.

This contrasts with the U.S. and some European countries, where those abusive to their former spouses are normally awarded visitation rights, Tanase said.

Masae Ido, a Lower House member on the Democratic Party of Japan's committee on the Hague Convention, also said the new laws should state clear conditions under which Japanese family courts can overrule a child-return request based on the Hague Convention if domestic violence is recognized.

"If we sign the Hague Convention, we should come up with laws that protect people who may get hurt by the Hague Convention," she said.

Ido, the mother of five children, is a supporter of domestic violence victims who take their children away from abusive spouses.



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