Jeremy Morely: Ineffective Access Rights in Japan under Hague Abduction Convention

“Whenever a child is taken to Japan…  within the meaning of Japanese law, no access claim can be made under the Hague Convention.”

Friday, June 19, 2015

Ineffective Access Rights in Japan under Hague Abduction Convention

Jeremy D. Morley

There is great misunderstanding about the ability of a parent outside Japan to obtain access to a child in Japan through the Hague Abduction Convention.

The Hague Convention contains only one provision (Article 21) concerning visitation. That Article states little more than that an application to make arrangements for organizing or securing rights of access may be presented to the Central Authorities of Contracting States.

Japan’s statute implementing the Convention into Japanese law states that an application may be filed under the Convention for visitation only (a) with respect to a child who is located in Japan, (b) who was, immediately before the visitation became unable to be made, a habitual resident of another Hague country, (c) by a person who is entitled to such visitation under the laws of said state other than Japan.

Essentially what all of this means is that no Hague Convention access application can be made in Japan if the child is habitually resident in Japan at the time the alleged right of access has been violated.

This is confirmed by the Japanese Ministry of Foreign Affairs’ own explanation of the visitation provisions of the Convention. This states that an access claim in Japan should be dismissed unless the applicant is entitled to visitation or contact with the child under the laws of the state where the child held his or her habitual residence immediately before the visitation could not be made.

This means that whenever a child is taken to Japan and becomes habitually resident there within the meaning of Japanese law, no access claim can be made under the Hague Convention.

The parent outside Japan will then have no right to see the child except by bringing a regular custody case in a Family Court in Japan and must expect that, even if such a claim is ultimately successful , it will (a) almost certainly be limited to visitation in Japan itself (visitation outside Japan has never been ordered by a Japanese court, to my knowledge), (b) will probably be limited to a few hours a month, (c) will be probably be strictly supervised in a courthouse or other specific location, and (d) will most likely be unenforceable in Japan.

If a child living outside Japan is lawfully relocated to Japan (whether by court order or parental agreement) the habitual residence of the child will shift to Japan relative quickly after the relocation.

At that point it will be unclear whether the parent outside Japan “is entitled” to visitation under the law of Japan. If there is not even a foreign court order requiring such access there will be no such right in existence. If there was a prior foreign order that purported to make provision for such access, the parent living outside Japan will be entitled to commence a court proceeding in the Family Court in Japan to ask the court to recognize and enforce the foreign custody order. However, the other parent in Japan will be entitled to ask the Japanese court to assume full custody jurisdiction, since the child will be habitually resident there, and to issue a new custody order that would exclude any provision for contact by the other parent. Alternatively, the parent in Japan will be able to start a new custody case in Japan at any time after the child is settled in Japan and to ask the court there to give unlimited sole custody to such parent.

Accordingly, any expectation that Japan’s accession to the Hague Convention allows parents outside Japan to secure access to their children lawfully living in Japan is quite mistaken.

Posted by Jeremy Morley
On his blog, here:
http://www.internationalfamilylawfirm.com/2015/06/ineffective-access-rights-in-japan.html

Posted in Japan Child Abduction | Leave a comment

Fathers’ Day 2015

rui and daddy w camera B

We romped until the pans
Slid from the kitchen shelf;
My mother’s countenance
Could not unfrown itself.

You beat time on my head
With a palm caked hard by dirt,
Then waltzed me off to bed
Still clinging to your shirt.
-Theodore Roethke

 

Never forget!

Posted in Japan Child Abduction | Leave a comment

Wall Street Journal – Parents of Abducted Children Get No Help in Japan

Walll Street Journal Children get no help from Japan

June 16, 2015
America’s Abducted Kids Get No Help From Japan

A new law was supposed to enlist the State Department in helping to bring the kids back, but Tokyo has talked its way out of cooperating.
By Chris Smith
Wall Street Journal


The U.S. State Department last month released its first annual report on countries that refuse to return American children who have been abducted by a parent and taken abroad. Conspicuously absent from the worst-offenders list in the report is the country with the world’s worst record of cooperation: Japan. Tokyo has never issued and enforced a return order for any one of the more than 50 American children currently held captive there by a parent who violated the wishes of another parent in taking the child overseas. This is in addition to the hundreds of previously abducted American children who became adults without knowing the love, culture and care of their American parent.

Last year Congress passed the Sean and David Goldman International Child Abduction Prevention and Return Act, which requires that the State Department hold countries accountable if an abduction case is still unresolved a year after State requests assistance in the return of a child. As the prime sponsor of the Goldman Act, I believe it is important to remind the State Department of its obligations under the law. First, State must accurately count all unresolved cases in its annual report. Second, the secretary of state needs to take action against all countries that have 30% or more unresolved cases, or that are otherwise noncompliant in helping to resolve abduction cases. When it comes to Japan, State falls far short on both counts.

Initially, the law seemed effective at bringing Japan’s attention to the issue. Tokyo was so worried about being found noncompliant in the report and put on the worst-offenders list that it sent a high-level delegation to the U.S. to meet with Ambassador Susan Jacobs just before the report was due and explain its lack of compliance.

TAKEN: David Goldman and Arvind Chawdra, whose children were abducted, during a news conference last year.

TAKEN: David Goldman and Arvind Chawdra, whose children were abducted, during a news conference last year.

For State, it seems, that meeting was enough to absolve Japan. Rather than provide the report as required by law, State later delivered to Congress a table loaded with zeroes in the “unresolved” category of countries and then, adding insult to injury, listed Japan with a 43% abduction-resolution rate.

The more than 50 American parents who have spent years trying to bring their children home were shocked and devastated. With the new law, they thought their country would finally stand with them in working to bring their children home. Instead, the State Department attempted an end-run around the Goldman Act, squandering any real leverage in the process.

State’s failure to hold Japan accountable delegitimizes the entire report and undermines its purpose. Other countries can now look at it as a deal-making political trope. It is truly a waste of what could have been a highly effective diplomatic tool.

Furthermore, State’s continued refusal to reveal each country’s real number of unresolved cases, even when required to do so by law, should worry every American who believes the U.S. government should be honest about successes and failures in the return of American abducted children. I have asked State repeatedly for the number of unresolved cases in India, for instance, only to be stonewalled.

TAKEN: Louis Rui Prager with his father.

TAKEN: Louis Rui Prager with his father. Rui disappeared into Japan in June 2010, at the age of 4 1/2. His father has been unable to see, speak to, or raise his son, ever since.

Congress passed the Goldman Act to compel transparency and action. Yet what the State Department is doing is ultimately perpetuating the status quo, where far less than half of abducted American children are reunited with their families.

International parental child abduction rips children from their homes and uproots their lives, alienating them from a left-behind parent who loves them and whom they have a right to know. Abducted children often lose their relationship with their parent, half of their identity and half of their culture. Child abduction is child abuse.

Congress went to great lengths to reunite these families, passing the Goldman Act unanimously. But a law is only as good as its implementation. A congressional hearing on June 11 featured anguished parents of children abducted to and currently held in Japan, India and elsewhere. With hope, the State Department will learn from their stories and follow through on enforcement in the future.

Mr. Smith represents New Jersey’s fourth Congressional district.

visit Japanlogo D

Posted in Ambassador Caroline Kennedy, BACHome, Brian Prager, Hague Convention, Japan Child Abduction, Japanese Child Abduction, Machiko Terauchi, Ohnuki Kensuke Child Abductor, Parental abduction, Rui Prager, Rui Terauchi, Wall Street Journal, 寺内るい, 寺内真智子 | Tagged , , , , , , , , , , , , , | Leave a comment

Five Years Gone

Rui slept in Daddy’s arms

Last Thursday, June 11, 2015, my old colleague and friend from the Left Behind Parents movement and the BACHome group, Christopher Savoie, gave testimony at last in a Congressional hearing on International Parental Child Abduction. Christopher explained quite clearly that the US Department of State, acting as the Central Authority and the sole US agency that is mandated to assist parents of missing, kidnapped children,  has been misleading and betraying us and our children in deference to Japanese state sponsorship of international parental abduction from the outset, and since well before I came to them to plead for help. This is not news to me, nor to anyone else among us, yet it has to be said again and again. He quoted his former case officer and mine, Courtney Houk, who wrote this to Christopher in 2011:  “The State Department has not formally demanded the return of any abducted children.”

Christopher Testifies 06-2015

Christopher Testifies 06-2015

The second major theme of the day concerned U.S. officials intentional misrepresentation of the numbers of kidnapped children in Japan whose parents are seeking them, in an unequal fight against the governments of the tw0 countries. According to the Department of State, which has been delegated the responsibility to name and give percentages and evaluations of those countries that are non-compliant with international legal standards and refuse to return or process access and the restoration of parental rights, in a new report Japan was given a completely clean slate. At the request of a Japanese delegation which visited and requested this from the State Department prior to the report’s completion, the State Department issued this report – which requires sanctions against non-cooperating states  – which completely cleared Japan of 35 years of child abductions, abductions which in reality number in the millions within Japan. It was a particularly bold act of American false representation, whose victims are children and parents. 50 “officially” unresolved US cases, a number dependent entirely on the willingness of thwarted U. S. parents  to beat their heads against the same brick wall for decades at a time, year after year, a number that were it to be told truthfully would be something on the order of 80 times greater  (an astonishing but nonetheless truthful representation).  50 cases, 30 with unanswered applications in the last year, remained unmentioned. Any judge consulting the report would find Japan to be a completely safe country to which to release children for visits. Nothing could be further from the truth, and the Department of State is thereby playing the lynchpin role of assisting in the abductions of children from the U.S. to a safe haven in which there exists no recourse. Congressman Chris Smith, who convened the hearing and interviewed representatives of the Sate Department was scathing, declaring that the Department was intentionally doing a great disservice to aggrieved and desperate parents, while Christopher Savoie made it abundantly clear that whitewashing reality in this manner has contributed to numerous abductions and put countless others at great risk.

“You see, in Japan, every divorce results in the total loss of all parental rights to one of the parents. That’s right. Under Japanese law, after a divorce — even a completely amicable divorce, the parents (or a court) must decide which parent will maintain parental rights. Not custody. Parental rights. The result of this rule is that one parent must by law have his or her parental rights terminated…becoming, legally, a total stranger, a non-parent to the child. The non-parent may not have any decision-making over the child anymore– never mind guaranteed visitation, decisions over medical care, access to a child in a hospital, or access to school records. None of that.
This is also why the State Department and Japanese Government, both of which would like to maintain smooth bilateral relations, have had to contort the numbers in this report and distort the truth in order to hide this awful fact about Japanese law and cultural values.”

There is video here: http://www.c-span.org/video/?326519-1/hearing-international-parental-child-abduction

And transcripts here: https://foreignaffairs.house.gov/hearing/subcommittee-hearing-goldman-act-return-abducted-american-children-assessing-compliance

* * * * * * * * * *

Today -June 15th, 2015- is the 5th anniversary of Rui’s disappearance into Japan. No one has come forward to tell me where he is living. The U.S. Department of State knows where my son is; the Ministry of Foreign Affairs knows where he is. Ohnuki, the abduction lawyer, knows. But according to their respective understandings of Japanese law, I have no right to know, and cannot be given that right. Instead, they as a group decided to create false psychological reports on him as a late toddler; they devised methods of delaying and hiding him for just long enough for the law to alter his status in Japan; they made public unproven fabricated accusations that I, Rui’s father, was not who I said I was, a daddy who loves my son, protects, takes care of, and longs to educate, play and relay the beauties of the world to my son, and to assuage his pain and teach him as well as I can, what a complex, nuanced, and sometimes decisively difficult thing it is to be a human being. The time has been stolen and no one can return that time to us. The damage is severe, and cannot be undone.

Rui  c

But still, as I always have, I love you Rui, and I want you home. I want the truth of our lives to be faced squarely and honestly. No lying, no dissimulation. And I want to rebuild the bond between father and son. I have much to give you and share with you, and there is so much to overcome.

Please let’s begin today, because once Machiko Terauchi and Kensuke Ohnuki kidnapped you, what was ordinarily normal became too beautiful to bear.

love, Daddy

Brian Prager

Posted in 誘拐犯, Hague Convention, Japan Child Abduction, Japanese Child Abduction, Machiko Terauchi, Ohnuki Kensuke Child Abductor, Parental abduction, Rui Prager, Rui Terauchi, 寺内るい, 寺内真智子 | Tagged , , , , , , , , , , , , | 1 Comment