Japanese Accession – Under International Pressure – to the Hague Convention on International Child Abduction is Still a Sham

In 2018, child abduction is still the principal means by which any Japanese national can obtain custody of a child in Japan. It is the only foolproof method, in fact, by which custody can be secured. Any attempt by a parent, Japanese or non-Japanese, to act collaboratively with a Japanese parent, spouse, or former spouse in order to safeguard a child’s well-being and assure that the child maintains relations with both parents can be betrayed easily and readily undermined by means of the so-called “family court”, an institution with judicial powers only capable of rendering families broken in Japanese law. (By judicial powers I mean the power to adjudicate a case; that is to say, the power to issue a decision that can subsequently bind the parties in the case to the court’s decision. The family court in Japan is, in effect, not a court in any real sense. It holds meetings with the parties, and goes through the motions of hearing their views; it issues statements and judgements in family cases. But the law has no binding power on the decisions it issues. If a custody decision is ignored by a parent in possession of a child, there is no legal recourse or remedy. The child remains with the parent who decides he or she has the force to prevent the other parent from assuming parental rights with the support of the state apparatus of force. Once a minimal amount of time has passed, the original decision can then be overturned in order to prevail on other institutions (such as schools and state registries) to recognize parental authority of the abductor.)

Japanese accession to the Hague Convention on the Civil Aspect of the International Abduction of Children in 2014 took place under a modest level of diplomatic pressure from an international group of states, including the United States. All the same, this accession is a sham, carried out by the Japanese state in order to appease the demands of the group of states which brought the pressure to bear in the guise of joint letters and a handful of soft-pedaled meetings among officials – employees of what might otherwise be considered the appropriate agencies of the government. The legal regime under which Japan adapted this convention to proclaim it to be “law” in Japan in all cases of international child abduction is entirely self-contradictory and therefore legally, entirely ineffective. It is impossible for any institution in Japan to resolve an international child abduction case; no such power has been ceded to anyone within the Japanese state to restore jurisdiction to the state from which the child abduction took place. Since this is the mission to which accession to the Hague Convention is in name dedicated -the restoration of the proper jurisdiction of child custody cases in order to prevent states like Japan from carrying on the practice of custody-by-abduction – the situation in Japan remains identical to that which existed prior to accession to the Convention. The main difference is that Japanese diplomats no longer have to listen to or receive letters of “complaint” that it is a gross violator of children and parents’ rights, since it can now point to a thick document in its records that claims that Japan is a member in good standing of a community of national states that recognize those rights. It closely parallels many other states in this regard in which supposed liberal legal regimes claim the existence of systemic rights while violating those rights at every turn. It also resembles many other aspirational aspects of Japanese law- such as its laws concerning labor rights and gender equality- which exist in documents and are routinely ignored or circumvented by practices that completely undermine the stated intentions of the law in question. (Such undermining of labor laws and hiring practices are described in detail in Heidi Gottfried’s The Reproductive Bargain, a text that, with great finesse, rounds out the understanding of how practices in Japan routinely override the law’s stated aims and unmake the work of activists and lawmakers with intentions to create a social order capable of recognition, and of offering an alternative to despair.)

Heidi Gottfried’s book treats the role of gendered employment in undermining workers’ security in the Japanese economy, well beyond gender lines.

The Diet testimony of Watanabe Yasuyuki below attests to the effect that these factors have on the decisions that family court judges thereby decide to make. The judge in a Japanese family court as it now stands, finds it far less contentious and far more in its own interests (the court’s interests) to ignore the law (no matter how tepid its demands) and issue decisions made on the basis of conserving systemic child abuse and a hammer’s approach to parental equality and children’s rights. These inheritances of authority are enjoyed by judges who can thus act in accordance with their biases and received notions about masculinity, femininity, ahistorical misunderstandings of contemporary work and familial roles, and can successfully ignore such scandalously modern, “liberal” legal principles as equality before the law, or attunement to the psychological interests of children-in-development. Contemporary structures in the parental social context in which it may now be far more desirable to raise children collaboratively can be ignored, imposing and re-imposing the forms of patriarchal order which broke into the family form in late 19th and 20th century Japan, and facilitated the growth of a strict-to-rigid regime of gendered employment, providing an easily-revived downward pressure on wages. While these habitual practices serve no affirmative purpose in the 21st century economy and often have devastating effects on children and family security, they do allow rigid walls to be maintained around a very limited, ever-falling percentage of “regular” employment for a select class of males, and the vast growth of insecure, precarious work and private life for an ever-growing percentage of Japanese people of all genders.

Abduction becomes custody in Japan

Here (with English subtitles!) is Watanabe’s testimony before the Diet Judicial Affairs Committee at a hearing in 2013, immediately prior to Japan’s accession to the Hague Convention, detailing the abuses to which he was subjected as a father by family court Judge Wakabayashi who, like so many others, could not bring himself to respect or act with decent regard for the lives of parents and children, preferring instead to assert his very real autonomy from the constraints of the law, to jealously guard his authority and his hereditary right to play Lord of the Manor to a father who came to his court to plead for his daughter’s protection from Japan’s machinery of abduction.

Watanabe’s testimony should make you weep hard and bitterly, as it did me. His story is my story, and all of our stories.

Despite the U.S. State Department and Japanese Ministries of Justice and Foreign Affairs protestations to the contrary, nothing has altered these practices in Japan today. As a result, well over three million children remain victims of Japanese child abduction-masked-as-custody-determination today, in 2018.

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