By Naoki Urano, staff writer
Parents who have been awarded sole legal custody but are unable to take their children from the other parent’s home will be able to forcibly remove them more easily under recommendations to be offered by a Justice Ministry advisory panel.
The panel also is likely to recommend changes to align Japanese law with the Hague Convention on international child abductions.
A subcommittee of the Legislative Council of the Ministry of Justice has been discussing changing the rules on handing over children between divorced parents, especially in situations where one parent who does not hold legal authority refuses to hand over a child to the custody-holding parent.
At a news conference on June 26, Justice Minister Yoko Kamikawa said, “I expect the panel to have a thorough discussion, so we can establish new effective rules while giving the utmost consideration to children’s physical and mental well-being.”
The council will summarize the proposals shortly and is planning to submit a report to the justice minister in autumn at the earliest to propose changes to the law. The plans will allow courts to remove children from non-custody holding parents even without those parents present.
The Justice Ministry is planning to submit bills to revise the civil execution law and other domestic laws relating to the Hague Convention to the Diet once it has received the council’s report.
No law currently stipulates how to hand over children between divorced parents who both reside in Japan.
Therefore, if a parent without custody refuses to hand over a child and continues to live with them, the custody-holding parent needs to file a civil court case. Court execution officers can forcibly remove a child from a parent without custody based on rules on “delivery of movables” under the civil execution law.
However, a principle of that law has been to have the parent who has lived with the child present when the child is removed.
Under the planned revision, forced removal of children envisions cases where a child is being abused or the parent living with the child is refusing to cooperate or talk with the other custody-holding parent.
At the time of carrying out a forced removal, the custody-holding parent will be required at the scene, in principle, but the presence of the parent without custody will not be necessary.
Initially, an interim proposal, which was compiled in September 2017, included giving a suspension period of execution of forced removal to minimize physical and mental distress for the child, and to encourage the parent without custody to voluntarily give up the child by imposing fines.
However, those clauses were removed from the proposal after negative reactions were received in the public consultation. Some said such rules “won’t be effective on a parent who is not willing to hand over a child,” and some suggested that “there is no time to lose if a child is being abused.”
Regarding estranged international couples, even after Japan joined the Hague Convention in 2014, there have been a number of cases where parents, who brought their children to Japan despite losing custody in their former resident countries, have not complied with requests to hand over their children to their ex-partners.
Japan was named as one of the countries not fulfilling the convention in the U.S. State Department’s annual report released in May.
To improve the situation, the council will also discuss rules and processes that will ensure handovers of abducted children based on the convention.