<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:
Swiss court returns boy under Hague pact
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.
6 thoughts on “Japan and the Results of the Hague Convention, 2014: A second child returned to Japan without protection.”
You speak the truth about this huge issue. Look at my case which is brand new.
I am the father of the first child to be adducted and sequestrated by her Japanese mother in Japan under the Hague Convention. Our case is the first case (between a foreign parent and a japanese parent) to be filed and judged in Japan under the The Convention of The Hague procedure.
My case is particular, i must confess, but I believe that each case of child abduction is particular. Each one of them has its own facts, own specificity.
The Hague Convention could be something good as long as the judges aim to reach the goals of the Convention. I believe that the convention of the Hague has many weakness and is not clear enough and that is why there is many law cases (jurisprudences) that can be applied in order to determine where is the habitual residence of the child before the wrongful removal / sequestration.
My case is the one of a family that moves from Thailand to France this year 2014 in May. The intention of both parents is clear and we both agreed to move to France. We send all our belongings by boat to France to our new residence (in Toulouse) but the mother and the daughter go to Japan directly after leaving Thailand for :
– holidays in order to visit family (grand parents and other members)
– make the long term spouse Visa at the French Embassy in Tokyo (she must make it in Japan, can’t do it in other country)
Me, the father, I went directly to France to prepare the arrival of my family in the new residence.
Nothing so special so far. But it became a bit special within the Hague Convention once the child has been sequestrated in Japan
The story summarized :
My lawyer (Mr. Suda) and I, we already know that the decision of the judges will be biased and that they will get round the goals and the principles of the Convention against child abduction. My lawyer is shocked by the biased (partial) behavior of the judges during the last audience on Tuesday the 18th of November.
We had a mediation on the the 10th of Nov at the Family court of Tokyo under the Convention process and one of the judge told us that they will decide that the habitual residence of my daughter is “nowhere” !
So they recognize the abduction, the violation of my custody rights but by saying that my daughter residence is nowhere they prevent the return of my child and they keep the abduction by the mother unpunished.
Until 8th of May we used to live in Thailand (my child is French – Japanese) and was born in Bangkok. In April 2014 my wife and I we planned and agreed to move to France. We sent all our belongings in the new residence in France.
But before going to France my wife needed to go to Japan for various reasons : rest because she was under a psychiatric treatment, make a long term spouse visa at the French Embassy of Japan (she can only do it at this embassy, not possible to do it in Bangkok) and visit her family. My daughter went to Japan for some holidays and to see her Japanese family.
On my side I went to France to prepare the arrival of my family and find a salary job (I’m an entrepreneur but my wife asked me to find a salary job to make our family life more secure).
During her stay in Japan my wife told me many times that she wanted to come to France as soon as possible. She even looked for nurseries and future schools for my daughter in France, she find a job in Paris and had to come for the job interview, she started to make her long term visa application. She also asked me to come to pick them up in Japan because she is too weak to do the trip alone with our daughter.
In Japan my wife was supposed to stay at her sister and brother in law house. This couple has a good influence on my wife behavior and they could follow up that she was taking her medical treatment.
My child was in the good hands of her aunties, uncles, cousins and grand parents. Furthermore, she was going to nursery only for the month of June and July in order to not make my wife too tired.
Suddenly on the 19th of August my wife decided to sequestrate my daughter and told me many times that she will stay in Japan and that I will never see my daughter again !
Beside that the mental sickness of my wife is recognized by psychiatrist doctors : she has a hormone disorder and a very strong depression (post-partum) that drives her to be extremely aggressive. My wife threat to kill my daughter and to commit suicide many times and in end of March 2014 she was sent to a psychiatric hospital because she put the life of my daughter in danger.
It almost 100% sure now that the 3 judges of the Family court of Tokyo who have to judge this 1st case in Japan for child abduction decide to say that the habitual residence of my daughter is “nowhere”. If so, it will allow the abduction of my child and legitimate the future abductions of child by a parents when the family is moving from a country A to a country B and one of the parents go to a country C for a short while with the child before joining the other parent in the country B.This is totally against the goals of the Convention, against the main law cases of the Convention (jurisprudence) and against the best interest of the child.
On the official website of the Hague Convention it is written that :
CAN A CHILD BE LEFT WITHOUT A HABITUAL RESIDENCE?
In early Convention case law there was a clear reluctance on the part of appellate courts to find that a child did not have a habitual residence. This was because of the concern that such a conclusion would render the instrument inoperable.
The main jurisprudences give a lot of tools to the judges in order to determine the habitual residence of the child :
– The Parental Intention Focus is the main factor to determine it
– There is also the Child Centred Focus which look at the Child best interest and at the acclimatisation and life condition the child had before the wrongful removal.
All the proofs, facts, acts that are in the file we gave to the judge clearly show that it’s possible to determine the habitual residence of my child.
This case is not only for me but for all the future parents from around the world who will have the terrible hardship to see their child abducted by the japanese mother (or father). We all know that Japan is the haven for international child abductions.
Many countries put pressure on Japan to sign The Hague Convention in order to protect the child and the custody of the parents. It’s surely thanks to USA press and government that Japan finally decided to sign it (after 34 years).
But in this very 1st case the decision of the Japanese judges will show that despite the signature of the Convention, nothing has changed in Japan and Japanese judges have created a legal vacuum that is against the protection of the child and allow their abduction. This is totally against the principles and goals of The Hague Convention.
Emmanuel de Fournas
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I know what you are saying. The truth is that parents who love their children should not have to make a choice between obedience to the law and raising their kids. We all love our children desperately, and the policies of the Japanese state virtually guarantee that our children will be subjected to major disruptions of their identity and caused excruciating, long-lasting emotional pain. But hey… For Japanese family court, the only value is bureaucratic convenience and their true charge by the state is the discipline of the population via antiquated registrations, the enforcement of superstitious attachments to national belonging, and imaginary cultural and ethnic purity. These fictions cause tremendous angst and distress for parents and children alike. But the Japanese state is particularly impervious to the pleas of parents and the pain of its people.
So, do you think the American dad was right to flee to Switzerland with the kid?? He obviously knew there were no alternatives. No negotiation, no rights, a bleak future of having minimal/zero contact with his kid…a heart-breaking decision to make, I doubt he intentionally wanted to deprive the child of his mother..but he knew it was either her or him…
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What the Hague Convention now means is that countries the world over are now increasingly bound by so-called “law” (international agreement?) to support Japanese child abduction, and oppose rescue efforts on behalf of children whose lives have been taken by the Japanese state.
This is thanks to the means by which the U.S. pushed the convention onto Japan; without means of accountability for wrong-doing. Perfect for US sponsorship of Japanese abduction by privatization of the entire process, etc
This is the clearest description of post-Hague Japan that I’ve read. Nothing has changed.
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