Signing Hague treaty no cure-all for parental abduction scourge

Tuesday, Oct. 20, 2009

THE ZEIT GIST

Signing Hague treaty no cure-all for parental abduction scourge
'Best interests of the bureaucracy' standard applies in Japan

By COLIN P. A. JONES

The recent arrest of Christopher Savoie for attempting to "kidnap" his two children in Fukuoka has brought much-needed international media attention to one of Japan's dirty secrets — its status as the developed world's leading destination for international parental child abduction.

Mr. Savoie was stopped by Japanese police on Sept. 28 trying to enter the U.S. consulate with his two children (aged 6 and 8) who had been brought to Japan in violation of a Tennessee court order by their Japanese mother, Mr. Savoie's ex-wife.

Since he had been awarded sole custody in the United States, where the international abduction of a child by a parent is also a federal crime, some might think that Japanese authorities arrested the wrong person. Yet it is Mr. Savoie who had to endure weeks of detention. Although recently released, he still faces the threat of indictment and the possibility of a criminal trial in a court system famous for a 99 percent conviction rate.

Some people familiar with Japan's abduction problem may consider Mr. Savoie's case to have exposed a staggering degree of hypocrisy (not to mention racism) on the part of those running the Japanese legal system. After all, "taking your own child is not a crime" has been the mantra recited to the legions of foreign parents and consular officials who have sought the return of children abducted by a Japanese parent from abroad in the past. With the police refusing to get involved, the foreign parent is left to flail away in Japan's ineffectual family court system which, having no real power to enforce its own judgments, tends to ratify the status quo, even if it means the children involved are suddenly living in a different country, being taught in a different language at a different school, and had a loving parent and other relatives suddenly extinguished from their lives.

The truth is both simple and brutal: If your children are taken to Japan, you may never see them again.

Japan is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, but this is probably only a secondary issue. Domestic abductions are also a widespread problem, and Japanese parents too suffer in a system that simply does not seem to care if a parent is unilaterally removed from a child's life before or after a divorce. They hear the same mantra — "go to family court," "mediate" and "the police do not get involved."

Well, except that sometimes the police do get involved.

A few years ago a Japanese father was arrested for doing the same thing as Mr. Savoie — grabbing his kids at their school. In that case there were no court orders in place, so arguably he was entitled to do so. But he was arrested and duly convicted for the same offense as Mr. Savoie (abducting a minor). Yet what he was doing was essentially a variation of what is a common practice by Japanese mothers prior to divorce — taking the kids and going back to live with their parents.

As for the apparent hypocrisy involved in Mr. Savoie's arrest, it is only hypocrisy if one assumes that the law is intended to function as a well-defined, consistently applied set of rules by which citizens and visitors alike can know in advance and act accordingly. Yet law also serves as one of the mediums through which Japan's famous bureaucracies preserve and enhance their authority. From this standpoint, whether the law is applied logically or consistently is entirely secondary to whether it provides an excuse for a particular group of bureaucrats to act (or not) — it just needs to be in their interests to do so.

Thus, the fact that police have recently started to arrest parents like Mr. Savoie despite the Japanese penal code remaining unchanged may simply reflect the police having decided that parental abduction is a problem they should do something about either in general, or in specific cases. Having made this decision, what the law actually says or is intended to address doesn't really matter, so long as there is a vaguely drafted statute they can point to as justification.

A similar dynamic plays out in Japanese courts. In custody disputes, courts purport to apply a "best interests of the child" standard. Fortunately for the courts, this standard remains undefined by either statute or clearly announced judicial rules, meaning that judges are free to resolve cases in whatever way is most convenient for the court — which more often than not is the status quo, which they have little power to change. Thus, the real standard being applied is probably what is in the best interests of the court.

A similarly bureaucratic approach may also explain the apparent willingness of Japanese courts to cooperate with other bureaucracies such as police and prosecutors by ratifying seemingly novel applications of criminal law arrests and prosecutions that seem to stretch the law. In another parental abduction case earlier this decade a Dutch man was arrested for trying to leave Japan with his daughter. He was prosecuted for violating an obscure human trafficking statute and duly convicted. In rejecting his appeal, Japan's Supreme Court noted that there is a high degree of unlawfulness in taking a child whose life is established in one country to another country, even if the person doing so is one of that child's parents. Apparently, neither this statute nor this logic has ever been applied to any of the scores of cases of abduction to Japan.

My own view is that as a matter of law, Japan could start returning abducted children tomorrow without having signed the Hague Convention — just as children who have been abducted to countries like the United States or England have been returned to Japan notwithstanding the country's nonsignatory status. Mr. Savoie's case clearly demonstrates that it is not actually necessary to waste time and money in futile family court proceedings to get your child back: The police will do it for you if it is in their interests to arrest the abducting parent. The converse is that they may not do anything if it is not, and this is also why it is conceivable that Japan could sign the Hague Convention and immediately appear on the U.S. State Department's list of noncompliant treaty partners.

Whatever the law says, it is very hard to imagine it being in the interests of the police and prosecutors to be seen taking crying half-Japanese children away from distraught Japanese mothers.

This is why the media attention is so important on this issue. Because law in Japan tends to serve the bureaucrats first and the people second, legislation and litigation may not lead to solutions if the bureaucrats are part of the problem. Thus, it will likely be criticism — relentless pressure and attention from both domestic and foreign sources — that will probably carry the day in Japan shedding its shameful status as an abduction haven. If so, it will be because the criticism risks damaging the authority of the bureaucrats by making them look bad.

This is sad, because appeals to law, reason and parental love should have worked a long time ago.

Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Send comments on this issue to community@japantimes.co.jp