New York Conference – The Loss of a Parent to the Child And the Loss of the Child to the Parent: Investigation of Relocation, Parental Alienation, and Parental Child Abduction

Conference Invitation-Flyer February 2016

I will be participating in a conference in New York this February 26, 2016 at the Washington Square Institute. The conference is being sponsored by the Family Law and Family Forensics Training Program, an interdisciplinary program for attorneys, judges, and mental health professionals founded by Linda Gunsberg.

The conference will be an opportunity to bring together the legal and psychological contexts of parental child abduction, parental alienation, and relocations that separate children from parents.

The participants will include Philip Stahl, Helen Sturm, Linda Gunsberg, Melissa Fenton, Colin Jones, Samuel Lui, Ellen B.Holtzman, and Brian Prager.

The topics will include these:
Complexities of Relocation in Separation and Divorce; Relocation from the Judicial Perspective; Parental Alienation: Clinical Issues; Resilience in the Face of Parental Alienation; Family Law for Whom? Why Japan is Different; Dead Dad Walking: Moving on in Life without Your Child Who Depended on You; and, Erasure of the Father: Coercive Practices, Corrosive Effects in Japanese International Parental Child Abduction.

Flyer 1

Clink on the image to see the full program

Click on the flyer image or on the link at the top of the post to see the full program. And please come if you can, learn, show support, and join in the discussion.

Posted in 誘拐犯, Hague Convention, Japan Child Abduction, Japanese Child Abduction, Machiko Terauchi, Ohnuki Kensuke Child Abductor, Parental abduction, Parental Alienation, Rui Prager, Rui Terauchi, 寺内るい, 寺内真智子 | 2 Comments

July 25th 2015 – Petition Draft: To End Child Abductions, Restore Our Children, Reject “Online Video Parenting”, and Stop the Goons!

The Rats Came

Pied Piper of Hamelin – the Rats Came

Petitions are supposed to be like legal briefs, aren’t they? It’s quite difficult to imagine how to make four pages worth of rant (minimum) at the sickly and sour Japanese family courts, and the revulsion inspired by the thick US response into a quick, short, sharp, shock out of clumsy, unpoetic prose – >ZAP!< to sting two dinosaur powers, the U.S. and Japan with all their destructive potency.  So here it is, from a night of trying. Perhaps a petition will come of it.

(Please, consider helping us to save our abducted children from this latest Assault of the Goons.)

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A Step in the Right Direction? We think not. This day, July 25th 2015, the Japanese press agency, Jiji,¹ published an article describing the introduction in June of this year of a program of “‘online parent-child ‘meetings'” by means of which the Foreign Ministry of Japan means to showcase a measure it wishes to stand as a demonstration of its willingness to support the amelioration of severed parent-child relationships, in service of its obligation to the letter and spirit of the Hague Convention on the Civil Aspects of International Child Abduction. Parents outside of Japan have been informed by the United States’ Central Authority for the administration of the Hague Convention that they may wish to participate in this program, offering it as a “step in the right direction”² and urging parents to accept this as constituting a form of official assistance, one that is incidentally only in theory accessible through an elaborate and costly court procedure imposed by the obstructive Japanese court and “mediation” processes, as none have successfully navigated to the point of actually receiving this assistance as of yet.

The purpose of this short paper and petition is to discuss rejection of this measure, and to state that we call for our children’s rights and our parental rights to be restored instead.

What is this new measure?

Skype Internet Video Calls with Abducted Children: Using internet technologies such as Skype, the Japanese Ministry of Foreign Affairs has stated that Japan’s Family Problems Information Center (FPIC) (see below) is now offering to incorporate into the options to be considered for the resolution of Hague International Child Abduction cases a request from excluded parents that the abducting parent in Japan allow occasional, non-obligatory, third-party supervised Skype internet video conference calls between left behind parents of the abducted and their children. This FPIC program has been proposed (and brought to life!) under the auspices of the newly signed Hague Convention on the Civil Aspects of International Child Abduction. (The treaty was concluded 35 years ago, in October, 1980; but Japan did not accede to nor sign the treaty until spring, 2014.)

Japanese government illustration

Japanese government illustration Indicates with an accompanying article that Japan, with USG endorsement, considers a smart phone or Skype call to be a sufficient, even a preferable (!) substitute for actual visitation. It also makes clear that virtually any expression of love or questioning by the parent is grounds for termination of the phone call. (5)

Among the provisions of this ‘service’ the following elements are stressed here:

1 A smart phone call – if the abductor approves: An online meeting using a personal computer or a smartphone can be set up if (and only if) requests for such communication with children from their parents are APPROVED by the abducting parent.

2 Discontinuation at any time: Any online meeting can and will be DISCONTINUED at the discretion of the abducting parent and third-party monitors in Japan if the conversation between parent and child appears in the judgment of the third-party monitor to be “inappropriate.” They have complete discretion to make this decision to discontinue the contact at any time. An example of ‘inappropriate’ might be that the parent from whom the child has been abducted might truthfully attempt to talk about how his or her absence from the child’s life over a period of years came about, and how it has affected them both. The parent might ask probing questions of his or her child, trying to find out if the child is well-treated, safe, or has difficulties in his or her life which haven’t been addressed. The pain induced by the abduction of the child and the disappearance of his or her parent might be referred to, or inquired into.

3 Fees for Private, For-Hire, For-Profit Monitoring of Parents Required: It must also be emphasized in this petition that the third-party monitoring of all of the online internet-video based communications is to be done by three agencies of Japanese origin, and that among these is the Family Problems Information Center, or FPIC.

What is FPIC?³ The Family Problems Information Center is a ‘public-interest’ private, for-profit corporation which charges the victim parent substantial fees in order to provide the ‘service’ of making Skype internet-video conference calls to his or her child available with the monitoring allowed (or ordered) by Japanese law. Why must they charge fees to the parents whose children are victims of abduction? In part because the Japanese state refuses to pay them for their services; in part also, because this is a profit-making opportunity. FPIC is regarded as a privatized extension of the Japanese family court system. It is rife, not with child and family psychologists, but with Japan’s aged, former family court investigators, which means they have credibility with the Japanese establishment, and none with us, whose children’s abductions have been ratified by Japan’s family courts for fifty years. FPIC, as with the Japanese version of court mediation itself, is peopled with older Japanese who may think knowing what is best for families and children is based on the number of years they have spent in the bureaucracy  considering what they do to be “doing good.” This widens the scope into how and why Japan’s family courts induce such extraordinary numbers of abductions in an otherwise modern post-industrial society, by providing a foundation upon which 3 million children in Japan have lost all meaningful access to their parent. The law of the state refuses to provide protection, instead turning children’s fates over to people without certification, nor with any meaningful educational requirements. FPIC mediators, who are now given the authority to guide the Hague cases, and who are by and large former servants of Japan’s family courts, like them, have no certification process of any kind, no educational requirements with respect to children, psychology and psychoanalysis, family dynamics, nor the well-being of children. Having no certification or training in the delicate and complex matters of family and forensic psychology, one hears that FPIC’s wish list includes development of a training program for parents, who apparently do not possess the superior wisdom and enlightenment that comes with being a paid bureaucrat.

4 Parents in the Panopticon: It should also be emphasized that whereas this type of online ‘meeting’ program as a substitute or supplement to parent-child visitation is becoming more common globally, the monitoring of such meetings by third parties is rarely if ever required, because it is intrusive and oppressive, putting parent and child into a punitive Panopticon in which they are not free.

MOFA DOS claims? While the Japanese Ministry of Foreign Affairs claimed to the reporter in the article that the involvement of third-party monitors is intended “to increase options for meetings between parents and children”, we, the undersigned, dispute that assertion. We claim, rather that at least some or all of the following assertions more accurately describe these measures taken by the Ministry of Foreign Affairs:

1 Reject Substitutions, Restore Jurisdiction: The parents of abducted children reject the use of internet-video conference calls as an unacceptable substitute for resolution of Hague child abduction cases. The Hague Convention is first and foremost presumed and touted to provide measures for the return to home jurisdiction of children who have been wrongfully removed and deprived of an on-going relationship with their parent as it was prior to the abduction of the child. This return to home jurisdiction allows for the custodial arrangements under which the child is to remain and be raised to be modified in accordance with an orderly, unbiased process of law in which neither the parents nor the children are asked or forced to have their role as parent violated by an irrational or violent act such as an international abduction, kidnapping or wrongful retention in a jurisdiction abroad without the consent of both parents and the courts, with absolute priority and full consideration given – first and foremost – to the children’s well-being. The Convention was concluded to provide for this oversight of jurisdiction, and it is the responsibility of the signatory states to adapt and even to change their domestic law and practices if necessary, in order to protect the parent-child relationship, and to employ the law in the interest of protecting the fragility of the psyches of minor children.

2 Sacrosanct Guarantees for Parents: In addition, we claim here that guaranteed visitation and access to his or her child by a parent is sacrosanct, and cannot be substituted for by a state claiming that a smart-phone app or a computer screen video call is an equivalent or next-best provision to the parent-child relationship. It is in the interest of the child and of the parent, and of the relations between signatory states, that children be protected from predatory practices that separate children from their parents. This obligation cannot be alleviated by providing internet access from thousands of miles away, where the parent has no choice but to endure the coercion of a state (in which he has no rights) in the wrongful denial to him or her of his or her children.

3 Obstacles Subject Parents and Children to Mistreatment: The presence of third party monitors and the substitution of internet-video conference calls for parent-child relationship presents obstacles which are not in keeping with the spirit or the letter of the Hague Convention to which Japan is a signatory. For comparison, these obstacles are equal to or greater than those faced by felons in U.S. prisons who, despite being housed punitively in a federal prison, are permitted visitation with their children on the basis of the consensus among parents, families and child and family psychologists of all types that it is in the best interest of the child for his or her healthy, on-going emotional and psychological well-being, growth and personal development to have unfettered, ongoing, uninterrupted relationships with both of his or her parents without the interference of the state or of the former spouse, the child’s other parent. In U.S. courts, it is necessary for there to be a finding, based on an evidential hearing, that a parent is a danger to his or her child in order for such prohibitive monitoring and interference in their meetings to be forced on them. Therefore the presence of third-party monitors is frowned upon and rejected by us, the undersigned, as a form of interference in the children’s and parents’ well-being.

4 Shielding Human Rights Violations From Scrutiny – ICAPRA’s Uncomfortable Politics Against the U.S. Department of State: Finally, the following circumstances are believed to be highly relevant to the decision of the Japanese state, with the acquiescence of the Department of State, to implement this provision of substituting video conferences for child protection:

In June 2014, a unanimous vote of the U.S. Congress passed a law known as ICAPRA, the International Child Abduction Prevention and Return Act, which requires the U.S. Department of State to provide to Congress an annual report evaluating each country’s level of compliance with humane international standards on the international abduction of children. This law went through six versions, and took five years of effort to pass. Every single version of the law was vigorously and vocally opposed by the Department of State in the congressional hearing rooms where it was being discussed. Countries found non-compliant, that is, those which do not make sufficient efforts to locate and return abducted children to the countries from which they were kidnapped, and which do not make sufficient efforts to alleviate the separation by illegal means of children and parents by providing for the restoration of equal contacts and parenting time to the parent from whom the child was abducted, are liable and can be subjected to sanctions. Moreover, parents who wish to protect their children by preventing them from being taken into the geographic area of territorial jurisdiction of a state which is found non-compliant in the State Department report is, on that basis, far more likely to be able to protect and prevent his or her children from being abducted. The report itself, if correctly and honestly reported, is evidential; it can and undoubtedly will be utilized by family court judges and lawyers to protect children from being taken to those jurisdictions in which the risk of child abduction is high, and from which return is unlikely. (Again, see reference note 4, below.)

Japan is such a high-risk jurisdiction.

However, the State Department chose to give Japan a pass and find Japan compliant in the report this year, at the request that it do so of a delegation of Japanese officials who came to Washington in the spring of 2015. This is despite the presence of between 30 and 50 Hague cases which have been filed and sent, via the State Department, to the Japanese Ministry of Foreign Affairs this year, not one of which has been adjudicated by a Japanese court of law, and none of which has been responded to. None of our children have been returned to us, and the two governments are working in tandem to relieve Japan of any pressure to do so. It is likely that the Department of State, which opposes the law (ICAPRA) and the Japanese state, which has resisted abduction prevention for tens of years, have decided conjointly that if they can get a quick fix like the internet-video ‘pseudo-visitation, pseudo-access’ parenting program running, then they can, in their view, legitimately make the claim that Japan has further bolstered its position as a compliant, children’s human rights-protecting, child-safe state. It is not, and there is no significant force on the horizon to make it so.

Japan still has our children. We reject this proposition out right, and demand instead that both countries come into the adult world with the rest of us and provide a fundamental social necessity, protection for children and parents, and restoration of our children’s parental rights, with appropriate speed.



² Personal communication to me, from the Department of State, Office of Children’s Issues

³  This account of the FPIC is heavily indebted to personal communications with friends and colleagues in Japan.

4  See: Patricia Apy, Statement for the Record for Hearing before the House Committee on Foreign Affairs Subcommittee on Africa, Global Health, Global Human Rights and International Organizations: Oversight Hearing to evaluate the annual report required by The International Child Abduction Prevention and Return Act ( ICAPRA)
on the web, at:

5  The original article, in Japanese:

Posted in Ambassador Caroline Kennedy, Brian Prager, 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 , , , , , , , , , , , , , , , | 2 Comments

“Stunning!” Congressional Committee Slams US State Department for Issuing False Report on Japan’s International Child Abductions

Patricia Apy- the lack of concern about getting those numbers right before the report was issued is stunning

Patricia Apy – “The lack of concern about getting those numbers right before the report was issued is stunning!”

It is difficult for us as parents of kidnapped children to slog through the murky streams and fouled rivulets with which the U.S. Department of State floods the river of legal and verbal effluvia separating us from our children. Among the strategic difficulties, one was the subject of a significant U.S. Congressional hearing this week (16-07-2015): a public confrontation with the Department of State concerning the “compliance report” which it is now required to produce annually with regard to the Sean and David Goldman International Child Abduction Prevention and Return Act (ICAPRA).

The Act was passed with the concentrated support of Congressman Smith and a unanimous non-partisan vote of legislators in 2014, requiring the Department of State in its unfortunate role (a misfortune for parents and abducted children) as the U.S.’ Central Authority for compliance with the Hague Convention on the International Abduction of Children, to issue, first of all, an annual formal précis of the quality of cooperation of all countries signatory to the Convention. The objective of the report is to provide a master document, a reference for all, with which to oversee compliance with the Goldman Act, and with the principles and practices the Convention supposedly provides for us in meeting its aim: the return home of internationally abducted children, and the prevention of further abductions.

The report’s first purpose is meant as a service to the government in determining whether or not a country should be subject to economic sanctions for the said state’s support of international child abduction – such as that supported by the government of Japan since the end of the 2nd World War. The assumption underlying this role is deserving of examination: it presumes first and foremost that the agencies of the state by which the report is made are motivated (to personify them a bit) by the desire to find and utilize the best possible evidence as to with whom and where the dangers of international child abduction lie, to act to restore the abducted, and to enable strong prevention. Whether this is a truthful statement of the aims of the Department of State is worthy of questioning,  a brief consideration of which follows below. But the report is also a significant document in the more commonplace activities of contemporary governance in the age of the neo-liberal, laissez faire state with regard to issues of justice and social good (Saying nothing presently about economic and military imperatives in which the State’s role as guarantor is still an ever-more paramount and active one.). As Patricia Apy insisted at the hearing, it is in NGOs and family courts, where these everyday policies are reviewed and decisions are made, that this report will have a real effect on how accurately the traumatic incidence of child abductions can be monitored. Judges and lawyers in family court settings will from now be able to use the national numbers and state ratings from the evaluation issued by the Department of State in this report to make recommendations and decisions based ostensibly on reliable fact as to whether or not a territory or sovereign state represents a threatening environment from which the return from abduction, or to which the risk of abduction, is high. If a country is found to be a high risk, the report would be evidential in a hearing, in which for example, travel abroad with children was being requested. In the instance of a state having been found non-compliant with the international standard, the state must, according to the unambiguous language of the International Child Abduction Prevention and Return Act, be designated as non-compliant and a high risk. This will (or if the report were reliable, it would) assist parents and judges who are trying to prevent their children from being taken to places like Japan, which is without question a black hole for child abduction from which no child has ever been returned by order of a court¹. The lives of children everywhere depend on the reliability of this report. However the condition of contemporary politics, diplomacy, and interstate relations should set off warning bells at this assumption. I can hear them wailing now, and so can you.

The State Department Office of Children’s Issues was caught with its pants down (again) this week, as the department’s Special Ambassador, Ms. Susan Jacobs, came before the Committee and was repeatedly asked  how and why it could possibly be that the world’s leading state sponsor of international child abduction, Japan, could be found
(1) compliant with the abduction prevention law and the international Convention, and
(2) to have further been found to have ZERO outstanding or unresolved cases of abduction.
This “finding” was simply not believed by the chair of the Committee, Congressman Chris Smith of New Jersey, nor by the noted expert witness and highly active, well-informed child abduction attorney, Patricia Apy, who declared that she found the finding by Ms. Jacobs and the Department of State, “stunning.” It also came as a surprise to us, parents whose abducted children are as missing today as they were the day of their disappearances.

2015 Compliance Report Japan Image 2

2015 Compliance Report with Japan clearly stated as having ZERO unresolved abduction cases due to poor law enforcement efforts

Ms Jacobs has testified before this Committee a number of times, having failed to provide adequate answers each time. DOS has been asked to provide numbers of cases,  information about procedures being followed to hammer home the urgency of the outstanding child abductions, a serious account of any progress in these cases, and whether or not any returns of children from Japan have occurred or are expected. Her testimony this time, however, was particularly notable for its jocular callousness, through which she failed again to convey the authentic realization of any of her department’s stated aims. At times, the discussion considerably degenerated, with Ms. Jacobs claiming with a grin that the Committee was “beating her up” when she was pressed on OCI’s paper-thin re-interpretation of the law, and on disingenuous explanations of how Japan could be considered to have zero outstanding unresolved cases, given that 50 Hague applications that made their way through her department this year all have yet to be responded to by Japanese authorities. None of the cases has been in any way adjudicated or “resolved.” Ms. Jacobs instead insisted on how hard she and the Japanese have tried (producing the equally stunning outcome of zero results), and complained that she and her colleagues were unable to completely escape from the responsibilities for which her office exists, and which sends her on elaborate travel junkets abroad, saying with a knowing smile that the Office even discussed child abductions at the U.S. Ambassador’s Fourth of July party this month. What fun is that? I must confess that as a parent of an abducted child of whom I have had neither information nor contact for 5 years of his young life, I found the humor in this exchange wanting. What a great and terrible burden Ms. Susan Jacobs and the OCI staff must shoulder, indeed.

 Jacobs struggled to cover up the agencies' cover up of Japan's state-supported International Parental Child Abductions

Office of Children’s Issues’ Susan Jacobs Testifies: OCI’s attempt at displaying all the vacant goodness of a TED talk fell even more flat than usual as Jacobs struggled to cover up the agencies’ cover-up of Japan’s state-supported International Parental Child Abductions

The S&DG ICAPRA was the product of a long slog of strategic intervention, pushed through by activists on behalf of parents and kids, an attempt to take a weak and ineffectual international legal regime under the Hague Convention and provide it with some practical support for actual parents and children suffering from the literally idiotic² practices of isolated, outlier states such as Japan’s, which pretend to be historically unmoved or unfamiliar with the concept of “rights” when they are claimed on behalf of a species of animal we generally refer to as “human beings” which by definition are theoretically to be entitled to something more than an overfilled raft at sea, sexual enslavement by marauding imperial armies, a border prison and campsite for refugees from socio-economic and/or criminal acts of war, or a slow agonizing end in a death camp with no exits. It’s a novel conception, but one whose popularity has grown internationally among ordinary people over a several hundred year period, yet which the governing party at the summit of power in Japan and the U.S. partners who support them there are remarkably able to play dumb, or remain non-cognizant. To help with this inconvenient incongruity between ideals and practices, enter the officials of the U.S. Department of State.

2015 Compliance Report Japan Image 1

2015 Compliance Report – Japan’s lack of procedures for resolving child abductions appeared in the State Department’s view to require no comment

The State Department jumped into the fray without much glee. There seems to be considerable confusion as to on whose behalf it is exercising its considerable partisan powers. In the last year, State Department efforts have contributed mightily to the latest slow-down of what always seems to be a process having difficulty sustaining momentum: holding Japan accountable for  stealing jurisdiction over child abduction cases and giving them, through a certain willful process of stretching out time, room to slowly suffocate and expire from neglect. These long, slow-motion catastrophic skids are the  product of two states, the Japanese and the American, in cahoots; or in the parlance that often over-dignifies the obstruction, the U.S. and Japanese states have a strategic and geopolitical partnership whose conjoined movements are presumed to be close and coordinated,  as skin is to muscle.  This is only the first of many identifications that lead to our current state of powerlessness to secure our children to our care.

Recognition that the price paid for this coordination and closeness is, along with child abductions, also the broad evisceration and casting off of democracy in Japan, is in my view the precondition for the establishment of numerous other aims, convictions and attachments born from our history with which we should and will have to struggle in order to survive. This report makes clear what we parents of abducted children have known for a very long time while missing our children’s childhoods: the desire of the U.S. government’s appointed agents to find and utilize the best possible evidence as to with whom and where the dangers of international child abduction lie, to act to restore the abducted, and to enable strong prevention is missing and unaccounted for. All claims to the contrary, the Department of State of the U.S. and its Japanese partners have by design created a structure and division of powers between them for the continuation of our children’s abductions. There is no reasonable expectation left among us that these officials have envisioned any other future for our children than permanent, state-enforced, separation of us from our parental rights.

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The following is a recent Toyota television commercial in which the appearance of concern for the bond of parent and child is considered an ideological centerpiece of a “good life” imaginary.  Too bad the governments of Japan and the United States aggressively counteract this dream-like fantasy with their actions: sponsorship of JIPCA, misinformation from the Department of State, and propaganda such as this from one of Japan’s most powerful private enterprises to cover for the glaring omissions and commissions for which they each bear responsibility.
Personally, I would say, that a boycott of companies such as Toyota that engage in this sort of advertising is entirely justifiable.  If Toyota, with all of its economic and social clout in Japan, were to get behind an effort to secure for us the rights of children, they could have done so, and saved millions of children from abuse by the state. But needless to say, they have not.

Here is the advertisement:

  1. Japanese family courts do not and cannot make such orders; if they were to make them, they could not be enforced. There is no enforcement provision for any decision made by a Japanese family court, except, notably, for custody, which is always and only single-parent sole custody which permanently excludes the other parent from exercising any parental right or privilege. Legally, the other parent and the entire family of which he (or she) is a part are made, legally, complete strangers. That this is an absolute brutality visited on children and parents alike, and turns parents into monsters, remains unacknowledged in Japanese law.
  2. The family law practices of Japan may indeed be idiotic, but I refer here to the origin of the word, the Greek idios, or “confined to oneself.” It is certain that Japan’s family law and family court practices are in this sense, idiotic. No other modern state anywhere in the world makes sole custody and the preventative absenting of parents from children into a goal of the court, a legal injunction, and against common wisdom and learning about the well-being of children and their parents into some sort of idiosyncratic “virtue”.
Posted in Brian Prager, 誘拐犯, Japan Child Abduction, Japanese Child Abduction, Joint custody, Machiko Terauchi, Ohnuki Kensuke Child Abductor, Parental abduction, Rui Prager, Rui Terauchi, 寺内るい, 寺内真智子 | Tagged , , , , , , , , , , , , , , , | 3 Comments

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:

Posted in Japan Child Abduction | Leave a comment