Introduction
Recently the Japanese Ministry of Justice requested comments on proposal number 300080169. Below is my submission (which does not meet the ‘readability’ standards of a blog post, so hopefully gives you something a little more frank). This links in with the Abduction Convention because the draft materials work alongside it, shaping how Japanese courts implement it.
Apologies in advance if I have misinterpreted the proposal. While I speak conversational Japanese, I (unfortunately) am not very good at reading formal Japanese. I have used a translator to read proposed legislative changes. While this isn’t great practice, I want the Ministry of Justice to hear my voice and consider developing legislation that works for the targets of these proposed amendments – culturally and linguistically diverse persons. Without hearing a broader set of opinions, I think that Japan risks isolating the very persons that the Abduction Convention aims to assist.
Please have a read and have a think. From a practical perspective, why has Japan signed the convention if their intention is to enact conflicting legislation? I suspect that the government of the day must receive many e-mails from activists who are concerned about violent foreigners stealing and hurting Japanese children. Is there need for such hysteria? Is it helpful to enact laws with Japanese children in mind when the Abduction Convention deals with culturally and linguistically diverse children by nature? Is it a healthy for a law to allow 6 year old children to decide that no culture/family/language is important to them other than Japan?
While I doubt anything will come of this submission alone, I hope that somebody reads it gives those who are reviewing it something a little bit different to think about.
Opinion: Proposal Number 300080169
Japan Ministry of Justice
minji209@i.moj.go.jp
2 August 2018
Dear Ministry of Justice,
Thank you for the opportunity to comment on Proposal Number 300080169. I am commenting on two matters:
- the process for sharing opinions; and
- my opinions about proposal number 300080169.
For context my daughter was abducted circa 2012 by her Japanese mother and her mother’s new husband. Her mother:
- Bashed me in front of our daughter.
- Received multiple assault convictions for bashing me.
- Lied to our daughter, saying she was not of a culturally and linguistically diverse background. Rather, she should be insulted by other children’s observations that she might be.
- This was recognised and rectified during court proceedings.
- Has actively manipulated our daughter by blocking physical access and blocking access to her studying English.
- This has continued during visitations. Her husband now insists on attending all visitations (contrary to the court order), actively sits/stands between us as a physical blocker during visitations and monitors all of our conversations to prevent or interrupt natural/loving conversations.
As an overarching theme, I wish to emphasise that under the Hague Convention on the Civil Aspects of International Child Abduction (the Convention), wrongful removal (aka abduction) is a ‘breach of rights of custody attributed to a person’. This assumption should not be corroded under any circumstances. Corroding this assumption heavily advantages abductors because it legitimises their behaviour – the kind of behaviour I have described above.
I don’t think the purpose of the Convention is to engage children and parents in lengthy arguments over whether or not the abduction was a good thing.
The process for sharing opinions
I respect Japan’s sovereignty in relation to making its own laws and doing so using its own language. However, by nature these laws impact an international audience. I think future proposals relating to international child custody should be accessible in multiple languages. If provided, those who are not completely fluent in Japanese could provide more specific and meaningful responses.
My opinions about proposal number 300080169
Should Japan consider the child’s ‘heart’ in relation to returns?
No, Japan should not. Emphasising the child’s ‘heart’ in abduction matters is inappropriate and beyond the scope of the Convention. Countries party to the Convention agree that the ‘interests of children are of paramount importance in matters relating to their custody… desiring to protect children internationally from the harmful effects of their wrongful removal or retention’. I think it is contrary to the Convention for one to ask children whether they love mummy or daddy. The default assumption of the Convention is that abduction is harmful. Asking children to choose their favourite parent is simply putting them through further psychological harm.
The best interests of abducted children has been interpreted to mean ‘a prompt return to the State of habitual residence’ (Re E. (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 A.C. 144). The preamble to the Convention is not supposed to be an interpretive exercise. It is straight forward – returning abducted children to their home country is paramount.
I strongly object to any proposals that, contrary to the Convention, Japanese law might require abducted children to choose mummy or daddy. This is inconsistent with the preamble to the Convention and would most certainly be harmful to any child who is asked to choose.
Should we ‘We must take care that enforcement will not have a harmful effect on the physical and mental condition of the child’
Yes of course, but not in the way being suggested. The proposal (and current practice from my experience) places the onus on foreign parents to prove that returning the child will not be harmful. This is a reversal of Article 13(b) of the Convention’s intention, which is contrary to the objectives of the Convention in Article 1 being, the prompt return of children and respecting existing custody rights.
I think assuming that removal from Japan will be harmful creates an absurdity. Japanese courts (rather than administrative bodies, might I add) already do this. Codifying it would be inconsistent with:
- The Convention’s objectives in Article 1 – to promptly return wrongfully removed children to ensure that custody rights of the other state are respected.
- Abduction is harmful and abusive. There is good reason for the existing assumption that immediately removing a child from abduction is the default position.
- Article 13(b), which is an exception to Article 1’s objectives, only to be applied in situations where it can be established that there is a grave risk of physical or psychological harm.
- I do not think removal from Japan is a ‘grave risk’ of harm. Previous cases such as Ortiz v. Martinez, 789 F.3d 722 (7th Cir. 2015) have demonstrated a much higher bar, with a ‘grave risk’ being the fact that the left behind parent was a convicted paedophile who had abused his child.
The Convention already successfully deals with situations where there is a grave risk to the abducted child if they are to be returned. The onus is rightfully placed on the abducting parent to prove this. The current law operates effectively in other jurisdictions, where return has been blocked pursuant to Article 13 – see Achakzad v. Zemaryalai, [2011] W.D.F.L. 2, Ortiz v. Martinez, 789 F.3d 722 (7th Cir. 2015) and D.T. v. L.B.T. [2010] EWHC 3177 (Fam). Japan has never returned an abducted child, so these proposed amendments are not only an absurdity, it is difficult to fathom what real or perceived challenge they might address.
Conclusion
I think it is paramount that culturally and linguistically diverse children be given access to both sides of their language, family and culture. Drafting legislation that actively forces abducted children to choose ‘Japan or [my country]’ while assuming that removal from Japan will be a ‘grave risk’ creates a harmful, monocultural dichotomy.
Abduction is a form of abuse and needs to be treated as such – promptly returning an abducted child to their habitual residence (before the abduction occurred) is paramount to an abducted child’s interests.
Kind regards,
Paper Boundaries
