<Below these notes of mine is a story from today’s Yomiuri Shimbun. In it, the Japanese newspaper reports that an American father has been ordered by Japan’s new Hague court to return his child to Japan where the mother resides. >
The Hague Convention does exactly for Japan what it says it should; but does nothing but damage to everyone else; especially to children.
Because Japan provides ZERO protection for children by “family court” and “family law.” In this instance, the second case of a child returned to Japan under the Hague Convention since Japan ratified it in April, the child once returned to Japan will inevitably *NEVER* see his/ her father ever again.
Because that is what is dictated by Japanese family law. Children of divorced parents are given to one Japanese, Japan-registered parent. The other parent has ZERO rights to access and visit and raise and participate in his/ her child’s life. The law requires it: complete elimination of children’s and parents’ rights. No alternative is possible because no alternative exists. Not in Japan.
So a return to Japan under the auspices of the Hague Convention is a sentence of ELIMINATION of the parent from the child’s life (which explains why children may now have been abducted in the first place; as there is NO means to both parents’ obtaining the right to raise the child where the alternatives include Japanese residence.)
Judges from Switzerland to the United States now make it clear that they give the children back to Japan because they believe – wrongly – that Japan is a “normal” part of a semi-regularized reciprocal system of 20th & 21st century family law where the *possibility exists* of obtaining basic protection of rights and protection of vulnerable citizens (aka children). They are wrong.
Japan is not a component of any such system, regardless of the international treaty it has signed. Such treaties, which have no superordinate authority to enact or enforce principles or law over that of the state in which the treaty has been ratified or adopted, are symbolic affairs serving the political purpose of providing a form of external coverage. In this case, the end is to disavow that abductions are now enabled with less difficulty for the Japanese parent, for whom, no legal limitation exists on the privileges of “custody determination” achieved by abduction. The Hague Convention on the Civil Aspects of the International Abduction of Children contains no enforcement clauses; no requirements that joint custody or other conditions conducive to equal parental rights or protection of children’s rights exist in the country. One can waste months, even years, and attend joint “conciliation” and “mediation” sessions under the falsely encouraging auspices of this treaty. But the decisions made under these arduously drawn-out conditions are meaningless and have no binding provisions or characteristics. They are as disposable and as likely to go missing as a promise written on a paper napkin. Why would anyone with a modicum of sense engage in them?
Anyone who tells you otherwise, or makes the excusing remarks that not all Japanese are bad people, is wrong. Of course this is NOT because Japanese are all bad people. But Japanese subjects MUST abduct their children in order to obtain a legally recognized custodial right/ aka/ the only existing form of which is total control of their children. Otherwise, if they do not abduct, if they allow the child to maintain relations with both parents, the RISK of losing all contact with the child via court-sponsored abduction is extremely high. 65 to 70% of all children of divorced parents in Japan have NO ongoing relationship with their parent. The explanation – or rather, the description of this state of affairs is multifaceted, involving everything from the structures of work/ family division in Japanese society to ideology, such as the cultural ramifications of Japan’s family registration system, and a set of state-education and market-inflected, culturally-induced, dreary sex-role expectations; but the fundamental characteristic, universal throughout the Japanese state and its territory of jurisdiction is state sponsored child abduction; the alternative of NO ALTERNATIVES.
And let it not be missed that territorial jurisdiction in Japanese family matters does not end at the geographic border of Japan, particularly as long as Japan has the full cooperation of superpower sponsor, the United States. Anywhere and everywhere on Earth a child is born to a Japanese parent is a place from which a child can be abducted; the Hague Convention and the protective umbrella of US military power provide elements of a multitude of constitutive guarantees.
Try convincing a mediator / defender of Japanese systemic child abduction otherwise; and you are likely to hear rising emotional or psychological defenses and moralistic claims about bringing out parental trust and the flowering of warm, familial good intentions. You will not however receive a means by which to recover or protect your children; because none exist. Having abducted my son and kept him away from the father to whom he was so close and who loves him so deeply and tenderly, should Machiko Terauchi now be trusted to hold to a non-binding family mediation agreement? Having made the choice induced by the Japanese family law to abduct my son, should one now expect that love and concern for my son’s well-being has somehow flowered in her severely damaged heart, the very same heart that allowed her to inflict the ultimate pain and punishment on father and son, and to try to hold down the drowning corpse of our father-son relationship until she hoped it would suffocate?
Until one is acclimated to this remarkably brutal counter-intuitive system of the dominance and decisionism of the state , one cannot judge or make a “right decision” about what to do as a marriage unravels or a family is dissolving. Hence, even those of us who have long been quite skeptical of the system of “liberal” state neutrality and responsiveness, ambivalent at best about the interest and reliability of the liberal-democratic form of guarantee of law and the (false, feeble, generally weak, economic and social class-privileged) assumptions of impartiality that it promises, are all nonetheless vulnerable and likely to be unable to act with sufficiently vigorous resistance to the state’s inducement to Japanese child abduction.
Even, it should be noted, in the several most extreme cases I know of in which non-Japanese parents knew in advance of the extent of Japanese parental abduction-as-state-practice, in such cases in which parents eager to defend their children took the spouses and children to a non-Japanese court, convinced a judge of the risk posed by Japanese state policy, had the children’s passports removed and right to travel abroad subject to the non-Japanese parent’s decision by court order -[a draconian measure for anyone who is hopeful that there is a potential for some form of decent home-life and a peaceful parental upbringing for one’s loved children – a harsh and costly requirement that one use the power of the state to impose one’s will on one’s own spouse and child – a horrid and inhumane requirement] – even in such cases, the reluctant but successful imposition of court orders to protect the children from being abducted has resulted in the children being abducted anyway. See the cases of my friends Christopher Savoie, Jeffrey Moorehouse and Randy Collins. Each of them had the law on their side in the United States where they and their children and spouses resided. Each of them lost their children to Japanese state-supported child abduction anyway, through ruses and defiance and law-breaking with the help of Japanese consulates and official “procedures” while US officials looked the other way. Each of them lives lives of grief, sorrow and loss no conscientious parent should be subjected to.
I had no such prior court order, although I was warned by a lawyer with expertise in this area prior to the abduction. I could see signs of the impending tragedy; but I wanted to keep a roof over Rui’s head with the love of both his Momma and Daddy readily available to him. I wanted him not to suffer from having his identity, his security, his self-structuring and process of identity formation ruptured. I wanted him to remain close, where he could enjoy his mother’s love, and mine, and where I could balance his mothers’ obsessions and control with the acceptance and loving presence I could offer. I wanted to model a spirit of curiosity, inquiry, creativity and freedom of choice for him, such as it might be. I see now that indirectly, without my being able to absorb its impact in advance, this was a gamble in which I could not accept the gravity of the stakes; and thus I lost. I will take this enormous life-engulfing weight to my grave with me.
In 1939, Sigmund Freud made a last-chance exit from Austria, just months before the German, Nazi dominated government set out to invade Poland and militarily occupy nearly all of Europe. Freud believed to the end in the liberal democratic state to which he was devoted, the state which as the harbinger and guarantor of the Enlightenment and Emancipation had ensured that the legal status of citizenship in the state was sufficient and rigorous enough protection. He was forced to flee when the Nazis invaded, and invade they did. He lost his sisters to the Nazis, who murdered them. Had he known, or been able to acknowledge in advance, to what extent the human drive to destruction was as real in the action of massed people as he had theorized it be in the individual, perhaps he could have saved the rest of his family.
Who will be the judge and point the finger of blame at Freud for his naivete? Now we know, but could we all have known it then? Perhaps, the Nazis always do march in.
Below is the story from Yomiuri Shimbun:
October 02, 2014
An American father living in Switzerland was ordered by a Swiss court in late September to return his child to the Japanese mother residing in Japan under the Hague Convention, The Yomiuri Shimbun has learned.
The 8-year-old boy has already returned to Japan.
The Japanese mother asked the Swiss government for the return of her child via the Japanese Foreign Ministry, claiming that her American husband took the boy to Switzerland without her consent.
There have so far been 17 cases in which parents have applied to the ministry for assistance regarding the return of their children based on the convention, which took effect in Japan in April. The Swiss case is the first in which a return order was issued by a foreign court with the ministry’s assistance.
The Hague Convention on the Civil Aspects of International Child Abduction aims to settle disputes over the parental custody of children in such cases as failed international marriages. It stipulates that a parent who takes a child aged under 16 overseas without the other parent’s consent must, in principle, return the child to the country where he or she was living. As of May, 92 countries were parties to the convention.
In the Swiss case, the couple and their child had been living in Japan. After the convention took effect in Japan in April, the American father took the boy to Switzerland. The Japanese mother applied for ministry assistance in August to recover her child.
The ministry then asked the Swiss central authorities for their cooperation on the matter. The Swiss side identified where the boy lives and aided the mother in judiciary proceedings. Ultimately, a Swiss court ordered the American father to send the boy back to Japan.
In July, a Japanese woman living in Britain was ordered by a British court to return her child to the father residing in Japan under the Hague Convention. In this case, the Japanese father directly asked Britain to make judicial arrangements for the return of the child and did not request assistance from the Japanese Foreign Ministry.
Even before the convention took effect in Japan, it was possible to directly ask a foreign country to help make judicial arrangements for the return of a child. In the latest case, Japan’s accession to the convention made it possible for the Japanese Foreign Ministry to provide assistance, which helped realize the boy’s return to Japan from Switzerland.
According to the ministry, of the 17 applications seeking assistance for the return of children that were filed in the six-month period from April 1 to Oct. 1, nine cases involve parents who asked for help with the return of children who were taken away from foreign countries to Japan.
The aforementioned case involving the Japanese couple is not included among those 17 cases. There have also been 56 cases in which parents applied for ministry assistance to see their children.