There is a systemic, entrenched pattern that further harms the children abducted by a parent to and within Japan. It is known as "The Continuity Principle." Simply put, judges and attorneys representing abductors manipulate the "best interest of the child" to rule that the child should remain alienated and ignore how they ended up with the abducting parent. In Japan, abducting your child is encouraged because it assures you will keep possession. We see this in international cases where courts may determine the child was taken to Japan without permission, sometimes acknowledging illegal acts, and then rule the child should remain with the abducting parent.
To impact the ongoing child abduction crisis positively, the most effective way currently is to encourage Japanese judges to end using the continuity principle and adopt the “friendly parent rule." In Japan's interpretation, the friendly parent is the one more supportive of the other parent being an integral part of the child's life. Adopting this would create a standard for the child to maintain a relationship with both parents. Japan could then be more in sync with The Hague Abduction Convention, United Nations Convention on the Rights of the Child, and the revised Japanese civil code article 766.[1]
To impact the ongoing child abduction crisis positively, the most effective way currently is to encourage Japanese judges to end using the continuity principle and adopt the “friendly parent rule." In Japan's interpretation, the friendly parent is the one more supportive of the other parent being an integral part of the child's life. Adopting this would create a standard for the child to maintain a relationship with both parents. Japan could then be more in sync with The Hague Abduction Convention, United Nations Convention on the Rights of the Child, and the revised Japanese civil code article 766.[1]
The 2012 revision of article 766 created an opportunity to apply the friendly parent rule in child custody cases to end the outdated practice of the children's right to access to the other parent being terminated or at the mercy of the parent with whom they reside. In practice it is being largely ignored which contradicts the public policy mandate by current and former Japanese Ministers of Justice.
On April 26, 2011, during the deliberations on the revision of article 766, then Minister of Justice Satsuki Eda testified[2] in the Judicial Affairs Committee to explain the meaning and purpose of the revision of article 766. He stated, "I agree with the interpretation that 1) parental abduction can be regarded as child abuse, 2) the person who abducts children is deemed not to be qualified to get custody-right, the person who is willing to realize the visitation between parents and children is deemed to be qualified to get custody-right when the custody right should be decided (by family court), and 3) the person who has custody-right and breaks the commitment of visitation without any sound reason can be deprived of her/his custody right."
In essence, the revised article 766 and its definitive interpretation by Minister Eda is the Japanese version of the friendly parent rule. Its purpose was to discourage abduction and grant custody to the friendly parent. One metric to assess friendliness is the amount of visitation and the terms offered by each parent.
Six years later on March 8, 2017 then Minister of Justice Katsutoshi Kaneda testified[3] in the National Diet of Japan that he agreed with Minister Eda's interpretation of article 766.
On March 6, 2018 EU Ambassadors delivered a joint démarche to Japan on international parental child abduction. Japan's Minister of Justice Yoko Kamikawa responded[4]on April 27, 2018 with, "From the perspective of the best interests of the child, it is important that, even after divorce, both father and mother are appropriately involved in the their child's upbringing through visitation and other forms of contact."
Former and the current Ministers of Justice have made it clear. Under the revised article 766 the continuity principle has no place in current law and public policy. Child abduction is child abuse. The abductor is not qualified to be the custodial parent. Therefore, the continuity principle in whatever guise or description should not be used. Instead, Japan's version of the friendly parent rule needs to be used in domestic and international cases. The focus should be on ordering the return of children to their friendly parent. Enforceable visitation and contact must be created between the child and both parents.
On April 26, 2011, during the deliberations on the revision of article 766, then Minister of Justice Satsuki Eda testified[2] in the Judicial Affairs Committee to explain the meaning and purpose of the revision of article 766. He stated, "I agree with the interpretation that 1) parental abduction can be regarded as child abuse, 2) the person who abducts children is deemed not to be qualified to get custody-right, the person who is willing to realize the visitation between parents and children is deemed to be qualified to get custody-right when the custody right should be decided (by family court), and 3) the person who has custody-right and breaks the commitment of visitation without any sound reason can be deprived of her/his custody right."
In essence, the revised article 766 and its definitive interpretation by Minister Eda is the Japanese version of the friendly parent rule. Its purpose was to discourage abduction and grant custody to the friendly parent. One metric to assess friendliness is the amount of visitation and the terms offered by each parent.
Six years later on March 8, 2017 then Minister of Justice Katsutoshi Kaneda testified[3] in the National Diet of Japan that he agreed with Minister Eda's interpretation of article 766.
On March 6, 2018 EU Ambassadors delivered a joint démarche to Japan on international parental child abduction. Japan's Minister of Justice Yoko Kamikawa responded[4]on April 27, 2018 with, "From the perspective of the best interests of the child, it is important that, even after divorce, both father and mother are appropriately involved in the their child's upbringing through visitation and other forms of contact."
Former and the current Ministers of Justice have made it clear. Under the revised article 766 the continuity principle has no place in current law and public policy. Child abduction is child abuse. The abductor is not qualified to be the custodial parent. Therefore, the continuity principle in whatever guise or description should not be used. Instead, Japan's version of the friendly parent rule needs to be used in domestic and international cases. The focus should be on ordering the return of children to their friendly parent. Enforceable visitation and contact must be created between the child and both parents.
________________________________
[1] Japanese civil code Article 766
(Determination of Matters regarding Custody of Child after Divorce etc.)
(1) If parents divorce by agreement, the matters of who will have custody over a child, visitation and other contacts between the father or mother and the child, sharing of expenses required for custody of the child and any other necessary matters regarding custody over the child shall be determined by that agreement. In this case, the child's interests shall be considered with the highest priority.
(2) If the agreement set forth in the preceding paragraph has not been made, or cannot be made, the matters set forth in the preceding paragraph shall be determined by the family court.
(3) The family court may change the agreement or determination under the provisions of the preceding two paragraphs and order any other proper disposition regarding custody over the child, if it finds this necessary.
(4) The rights and duties of parents beyond the scope of custody may not be altered by the provisions of the preceding three paragraphs.
[2] Testimony of Justice Minister Satsuki Eda during the deliberations on the revision of article 766 in the Judicial Affairs Committee.
[1] Japanese civil code Article 766
(Determination of Matters regarding Custody of Child after Divorce etc.)
(1) If parents divorce by agreement, the matters of who will have custody over a child, visitation and other contacts between the father or mother and the child, sharing of expenses required for custody of the child and any other necessary matters regarding custody over the child shall be determined by that agreement. In this case, the child's interests shall be considered with the highest priority.
(2) If the agreement set forth in the preceding paragraph has not been made, or cannot be made, the matters set forth in the preceding paragraph shall be determined by the family court.
(3) The family court may change the agreement or determination under the provisions of the preceding two paragraphs and order any other proper disposition regarding custody over the child, if it finds this necessary.
(4) The rights and duties of parents beyond the scope of custody may not be altered by the provisions of the preceding three paragraphs.
[2] Testimony of Justice Minister Satsuki Eda during the deliberations on the revision of article 766 in the Judicial Affairs Committee.
[3]March 8, 2017 then Minister of Justice Katsutoshi Kaneda testify in the National Diet of Japan that he agreed with Minister Eda's interpretation of article 766.
[4] April 27, 2018 démarche response letter from Japan's Minister of Justice Yoko Kamikawa.
RSS Feed