Unenforceability of Japanese Custody and Hague Abduction Convention Orders

Unenforceability of Japanese Custody and Hague Abduction Convention Orders

Jeremy D. Morley*

[The following post by attorney Jeremy Morley is a short summary of the current (September 2017) legal circumstances with regard to child custody and international parental abduction in Japan. It amply illustrates why the most dire warnings possible can and should be issued by any and all institutions concerned with children’s well-being and the protection of children’s and parents’ rights, as regards any and all involvement with the Japanese family court system, or any circumstance in which a child is to be brought within the geographic area of Japanese territorial sovereignty.

Children’s rights to their parents, and parents rights to their children cannot and will not under any circumstances be protected by the Japanese state. Further, its supposed law-governed courts are entirely incapable of providing even a minimum of such protection to children, a fact often explained as the absence of any protective law in Japan under which assistance can be given. In this, Japan is an outlier and menace of the first order to all parents and children. NO CHILDREN should be allowed to pass into a geographic area of Japanese territorial sovereignty at any time, or under any circumstance, unless both parents are willing to accept the uniquely high probability that, should the relationship between the two parents encounter conflicts of any kind, the children can and are encouraged to be sacrificed by the Japanese state to the whim of the parent who has the superior advantage in the Japanese legal order: that is, the Japanese citizen with physical possession of the child. Children’s security, children’s safety from abduction, children’s continuing relations with and access to their parents, and parents’ relationships with and access to their children, cannot and WILL NOT be protected by any institution operating within the territorial sovereignty of the Japanese state. One can only conclude, therefore, that you must keep your children away from Japan.

This is not an idle warning, but a serious and very consequential one. The dangers awaiting families during, for example, the upcoming seasons of Olympics sports events in 2020, will increase. Abductions will occur; and the children will not be returned by Japanese authorities to the parent from whom they have been abducted. Keep in mind that there are roughly 3 million children in Japan today with no access to, nor communications with, their parent, due to the actions of the Japanese state, thus normalizing the practice among many if not all Japanese people, making it much more difficult for your pleas for justice and the safe return of your kids to be heard. Awareness of these numerous cases is very low there; but the sub-standard role of the courts in enabling and stimulating the problem is assumed in popular sentiment. That child and parent-protective law exists elsewhere that is enforceable appears to be unknown to most Japanese, who must assume that, shoganai, (translatable as “it can’t be helped, accept your fate”) nothing can be done about family-related conflict that breaks, terrorizes and destroys children and parents.

Japanese-partnered states, particularly the global sponsor to whom it is a client state, the United States of America, will not act to assist the return of your children should Japan decide to allow them to be abducted. There are numerous resources, including some earlier posts on this blog, explaining that the U.S. Department of State, in order to manage a growing problem with respect to fluidly global international parental abductions, created a subdivision/ special office (“Children’s Issues”) within the structure of its consular division, to assist in the deferral of action in child abduction cases. Under the pretense of providing assistance to parents, the Department of State has removed the immediate burden and potential linkages by which parents might attempt to obtain direct means within the national state to which abductions take place, and has created and layered on the procedural re-routing of parents’ cases, via global conventions, formalized processes, etc., whereby the process can be slowed, rendered ineffective, and eventually dropped in the interest of maintaining good state to state relations for private, financial and military interests in the United States and around the globe. The “best case scenario” that the U.S. offers its citizens, is that you pursue your case, privately and without assistance, in the Japanese family court system in which millions of child abductions have been “rubberstamped”, or ratified post hoc.

Not all of these issues are addressed in Morley’s piece below, but it does provide a solid piece of the narrative as it currently exists today for Japanese child abduction.]

My son, Rui, and me, Brian Prager, in 2009.

The text from Jeremy Morley follows:

Child custody orders are not enforced in Japan. There is merely a provision for a fine, but it is usually de minimis and rarely employed.  It does not impede a parent with physical possession of a child from denying the other parent access to the child. This is one reason (among several) why child custody is not shared in Japan and why visitation provisions are usually limited to short, periodic and often supervised meetings, unless the parents are genuinely agreed to provide otherwise. There is no court-ordered international visitation in Japan and overnight visits are rarely ordered unless the parent who possesses the child willingly agrees otherwise.

In July 2017, the Supreme Court of Japan issued a ruling in a custody case between two Japanese parents living in Japan. It overturned a most unusual and provocative lower court ruling that had provided for extensive visitation time for the father. Indeed, the Supreme Court ordered sole custody for the mother and adopted her proposal to permit the father to meet the daughter only once a month, since that was frequent enough for an elementary school student and more time with her father would be unduly burdensome on a child. The case was commenced seven years earlier, during which the mother had allowed the father to meet the child only six times. The decision to permit visitation of not more than once a month, and then only for a meeting, not for an overnight visit, is normal and typical in Japan.

When Japan agreed  to adopt the Hague Abduction Convention (in 2014, some 35 years after it had been drafted and adopted globally), which provides for the court-ordered return of internationally-abducted children, the Government was required to make provision for the first time for enforcement of such orders. Accordingly, certain Japanese family lawyers worked extremely hard to draft enforcement measures that would, for the first time, lead to the enforcement of the terms of a Family Court order concerning children. However, their initial proposals were significantly diluted, and while the Diet ultimately adopted an extraordinarily lengthy enabling act bringing the Hague Abduction Convention into Japanese law, its provisions concerning the enforcement of Hague Convention return orders have proven to be unworkable.

Thus, in a case in Osaka in which the Osaka High Court ruled that four children, whose Japanese mother had abducted them from the United States, must be returned to their American father in the U.S. The father ultimately prevailed on so-called “enforcement officers” from the Nara District Court to make some efforts to enforce the return order, but when the mother refused to cooperate they declared that enforcement was not possible.  Early this year, the Osaka court reversed its original return order and authorized the mother to retain the abducted children in her sole custody in Japan.

Just a few days ago, an advisory panel to the Japanese Justice Ministry proposed that some enforcement measures beyond mere fines should be enacted in order to enforce orders in domestic custody cases, and it suggested that, after public comments, the matters could be submitted to the Japanese Diet “as early as 2018.” Whether any such law will ever be enacted is entirely uncertain. And whether any enforcement measures that are enacted will themselves be enforced in practice is even more uncertain.

In the meantime, the basic approach continues, whereby Japanese child custody cases merely “rubberstamp” the principle that whichever parent has physical possession of a child may in practice decide whether or not to allow the other parent to see their child.  And since physical possession means everything, parents who do not fully trust the other parent to return the child are necessarily reluctant to part with possession for even a day, which explains why visitation in Japan is generally limited to intermittent short supervised daytime meetings in a secure location.

Published Thursday, September 21, 2017 at:

http://www.internationalfamilylawfirm.com/2017/09/unenforceability-of-japanese-custody.html

* Jeremy D. Morley, an international family lawyer in New York, who works with family lawyers throughout the world. He is the author of two leading treatises on international family law, International Family Law Practice and The Hague Abduction Convention.  He frequently testifies as an expert witness on the child custody law and legal system of Japan and other countries around the world.

Posted in 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

Two dollar hat. Old black stockings.

A Sunday, September 2017

The Bowery where I landed 30 years ago is no more as it was. The memory tricks are real though. There was a spot where I brought you a few times, Rui, nearby here. We only passed by, stopped for a bench rest, and moved on.

For me it’s a blue-bathed memory of a place where the brutal inequalities of our day had long been mirrored; where lost, broken, or abandoned persons passed, stopped, and moved on in time. On many walks through here, fences, railings and gates stood between me and stairwells, doors, rooms and closets, beyond which were chests, drawers, mattresses, upholstered chairs, broken locks, and men uncomfortably half-dressed against autumn cold.  Places of confinement as they were, these places have now vanished; I fear they’ve taken with them the knowledge they bore to us of what pillage and banks left in their wake. What is the sum of that enormity of passions that were spilled into these transient domiciles? There at least, the abyss stared back, refusing to be ignored.

I loved as well as feared this place. Families left the bones of their ruin here; glimpses of their psychic toll remained in evidence for eyes that looked. Things that I have learned and would always want you to know about our world played scenes against the backdrop of urban districts like these. The poetry of sorrow may have been overly common here; but these poetries are played on melodies that wounded love and longing build. Here, there was and is something of deep value to know about being human.

I miss walking with you. I miss you so, Rui.
Love, Daddy

Listen:

While the wolf had her fangs
Deep in my heart
Who’s been writing them songs?

Who’s been singing?
And who’s been listening
Blue Eyes while you’ve been gone?

That two dollar hat and them old black stockings
Down on the Bowery
Hand in hand the full moon went walking
With Blue Eyes
Without me

And the tears used to sing them
And the cold wind would blow them
Down on the Bowery
Broken hearts were the only things listening
And Blue Eyes, I heard everything

That two dollar hat and them old black stockings
Down on the Bowery
Hand in hand the full moon went walking
With Blue Eyes
Without me

With blue eyes, without me.

(The song is Bowery by Jason Molina. Recorded by him with his band, the Magnolia Electric Company. The photographs are from the Internet.)

Brian March 2017

Posted in Brian Prager, Japan Child Abduction, Japanese Child Abduction, Machiko Terauchi, Rui Prager, Rui Terauchi, 寺内るい, 寺内真智子 | Tagged , , , , , , , | 4 Comments

So all souls can see it

Oh, where have you been, my darling young one?
And what did you see, my darling young one?
And what did you hear, my darling young one?
And who did you meet, my darling young one?
And what will you do now, my darling young one?

I’ve walked and I’ve crawled on six crooked highways
I’ve stepped in the middle of seven sad forests
I saw a newborn baby with wild wolves all around it
I saw a highway of diamonds with nobody on it
I saw ten thousand talkers whose tongues were all broken
I saw guns and sharp swords in the hands of young children
I heard the sound of a thunder, it roared out a warning
I heard the roar of a wave that could drown the whole world
I met one man who was wounded in love
I met another man who was wounded in hatred

Now I’m going back out before the rain starts falling
I’ll walk to the depths of the deepest black forest
Where the people are many and their hands are all empty
Where the pellets of poison are flooding their waters
Where the home in the valley meets the damp dirty prison
Where the executioner’s face is always well hidden
Where hunger is ugly, where souls are forgotten
Where black is the color, where none is the number
And I’ll tell it and think it and speak it and breathe it
And reflect it from the mountain so all souls can see it

Father’s Day 2017

Oh, the gentlemen are talking and the midnight moon is on the riverside
They’re drinking up and walking and it is time for me to slide
I live in another world where life and death are memorized
Where the earth is strung with lovers’ pearls and all I see are dark eyes

A cock is crowing far away and another soldier’s deep in prayer
Some mother’s child has gone astray, she can’t find him anywhere
But I can hear another drum beating for the dead that rise
Whom nature’s beast fears as they come and all I see are dark eyes

They tell me to be discreet for all intended purposes,
They tell me revenge is sweet and from where they stand, I’m sure it is.
But I feel nothing for their game where beauty goes unrecognized,
All I feel is heat and flame and all I see are dark eyes.

Oh, the French girl, she’s in paradise and a drunken man is at the wheel
Hunger pays a heavy price to the falling gods of speed and steel
Oh, time is short and the days are sweet and passion rules the arrow that flies
A million faces at my feet but all I see are dark eyes

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Unlucky Seven

June 15
7 years to the day since Rui was abducted and taken to where the Japanese state would assert its sovereignty and claim jurisdiction over my son, unchallenged by any institution, regardless of international law, concern for children’s protection, or feelings of shared humanity.

Japan’s Fuji TV reported on Rui’s abduction in 2011, and tried to hide the identity of the abductor in this way (with facial blurring). They ought to have known;  Japan offers no rememdies for victims of child abduction. They could have put her name and face in lights.

Fuji TV story- original photo

Fuji TV story- original photo

Peter Tosh here speaks for me. (It seems it really did happen this way, within a year… without the mystical aspect of the universe turning on wrongdoing. It remains for us the living to set that right…)

Downpresser man – where you gonna run to?
Downpresser man – where you gonna run to?
Downpresser man – where you gonna run to?
All along that day

You’re gonna run to the rocks,
The rocks will be melting.
When you run to the rocks,
The rocks will be melitng.
When you run to the rocks,
The rocks will be melitng.
I said all along that day.

You gonna run to the sea,
But the sea will be boiling.
When you run to the sea,
The sea will be boiling.
You will run to the sea,
The sea will be boiling.
All along that day.

(Sad day for you, man)

You gonna run to the Lord
But the Lord will be hiding
You gonna run to the Lord
But the Lord will be hiding
You will run to the Lord
But the Lord will be hiding
All along that day.

I wouldn’t like to be a flea,
Under your collar man.
I wouldn’t like to be a flea,
In your collar man.
I wouldn’t like to be a flea,
Under your collar.
All along that day.

You gonna run, but you can’t hide
You gonna run, but you can’t hide
You gonna run, but you can’t hide
All along that day

Downpresser man – where you gonna run to?
Downpresser man – where you gonna run to?
Downpresser man – where you gonna run to?
All along that day

This song is dedicated to Ohnuki Kensuke, Terauchi Machiko, and the love you could cripple but could not kill. May you grow a conscience so that it can haunt and torment you.

Rui –  Daddy’s love for you will never die, while we both live and breathe.

Posted in Brian Prager, 誘拐犯, Japan Child Abduction, Japanese Child Abduction, Machiko Terauchi, Ohnuki Kensuke Child Abductor, Rui Prager, Rui Terauchi, 寺内るい, 寺内真智子 | Tagged , , , , , , , , | 2 Comments