東京新聞のオーストラリア法の研究者、小川富之のコメントが、オーストラリア紙で否定的に扱われています。
By Chris Zappone and Eryk Bagshaw
December 14, 2021 — 3.53pm
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Australian parents banned from seeing their children in Japan are simply confused about the stark differences between the two nations’ custody laws, says Shingo Yamagami, the Ambassador to Australia, who concedes that “emotions are running high” over the issue.
The Sydney Morning Herald and The Age revealed in August that up to 68 Australian-Japanese children have been caught up in parental abduction and child custody disputes between their Australian and Japanese parents. In some cases, children have been snatched while at school, others have been taken from their family home or sent on a holiday from Australia to Japan – never to be seen by their Australian parent again.
Japan’s Ambassador Shingo Yamagami.
Japan’s Ambassador Shingo Yamagami. Credit:Alex Ellinghausen
Japan’s legal system allows the parent who last had contact with the children to assume sole custody and gives them the authority to block the other parent from any access.
The issue has become a significant diplomatic flashpoint for Japan and Australia and the only major area of disagreement between the two allies. Japan’s other western partners, including the United States and France, also have hundreds of unresolved cases, leading all three to lobby the Japanese ministers for urgent change.
Yamagami said Australian parents had been confused by Japan’s legal system and the disputes should be resolved through The Hague Convention on child abduction.
“When it comes to this issue of removal of children from one parent across borders between Australia and Japan, we are fully aware [parents’] emotions are running high on both sides,” he said in an interview with this masthead.
“Because the system is different from the Australian legal system. And this happens to be the source of confusion to some Australians, say, an Australian father cannot see or hold their babies after a divorce.”
Australian woman Catherine Henderson was living in Tokyo when she says she came home from work to find that her husband had abducted their daughter and son.
Australian woman Catherine Henderson was living in Tokyo when she says she came home from work to find that her husband had abducted their daughter and son.
But those comments have infuriated parents, some of whom remain legally married to their Japanese partner and stranded in Japan, terrified of losing all prospect of seeing their children if they leave the country.
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“I am still married but have had no meaningful contact with my children for two-and-a-half years,” said Catherine Henderson, an Australian mother-of-two based in Tokyo.
“The fact is that the legal system just doesn’t work in cases of abduction and no laws guaranteeing access exist. The failure of the Japanese government to have laws, systems and processes that prevent or punish parental abduction of children has caused me untold pain and suffering.”
Australian father Kav, who asked only to be referred to by his nickname to protect the identity of his children, has not seen his daughter in three and a half years. He is building a reconciliation hub filled with Eucalyptus trees in her Japanese village in the hope of creating a space for them to see each other again.
“I am still married,” he said. “Can he explain to me how the Japanese people, his own people, how a country can operate like this?”
Yamagami said the sole-custody system not only affected foreigners but also Japanese parents.
“We don’t allow for joint parenthood,” he said. “Because it is based on the idea that if the terms of the relationship between father and mother are not good enough, then children may suffer from dealing with both of them.”
Kav, who has not seen his daughter in more than three years, teaches English in his local village.
Kav, who has not seen his daughter in more than three years, teaches English in his local village. Credit:Viola Kam
“Of course, consideration is being made whether we should revise our system. But Japan is one of the few countries where only single parenthood is allowed.”
Henderson said after her children were taken by her husband when she went to work one morning in February 2018, she “felt as though both of my children had died on the same day”.
“My life has been profoundly impacted by the loss of my children. I still suffer from episodes of paralysing shock about what has happened. One day when I was in [the Tokyo suburb of] Kichijoji, I saw a family of three,” she said.
“The father and daughter said goodbye to the mother who was walking off in a different direction. I wanted to run after the mother and warn her that she shouldn’t let them go and that it might be the last time she ever sees her daughter.”
The Japanese system does not have an enforcement mechanism for civil custody dispute cases. The US State Department found in 2018 that when Japanese parents refused to comply with court return orders, “there were no effective means to enforce the order, resulting in a pattern of noncompliance”.
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Catherine Henderson, Izumi Dobashi and Scott MacIntyre hold photos up of their children.
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In one case US Navy Commander Paul Toland was denied access to his daughter after his former wife died by suicide four years after she took their child away. The child was left in the custody of her Japanese grandmother as the last direct relative to have contact with her.
Henderson said her lawyers had told her that she had “kara shinken”.
“Basically that although from a legal perspective, I have joint custody with my husband as I am still married, it is essentially meaningless in any practical sense,” she said. “The complete and utter lack of any justice or fairness in the system has tormented me.”
Australia’s joint-custody laws have been cited by Japanese professor Tomiyuki Ogawa in his campaign to prevent Japan changing its sole-custody system. Ogawa has claimed that in 2011, Australia rolled back changes to its 2006 Act after incidents of domestic violence.
“Australia’s 2006 law has resulted in a threat to children’s life, body and sound upbringing,” he told the Tokyo Shimbun in July. “The 2006 revision of the law was a painful failure.”
But a review of the 2011 amendments to the Act by the Australian Institute of Family Studies found that it modified the emphasis on the rights of the child “only a little” to give greater weight “to be given to the need to protect children from harm”.
Adam Perry, a British solicitor who spent five years living in Japan studying its legal system, said Japan stands alone as the only G20 nation not to have a system of joint custody.
“It is widely understood that parental abductions primarily occur for the sole purpose of obtaining custody,” he said.
Perry said Japan’s family courts, in contravention to Japan’s international commitments including The Hague Convention, continue to implement and practice a child custody system that fails to put the best interests of the child first.
“It accepts the first parental child abduction, fails to uphold foreign rulings and supports the refusal of contact and access by the abducting parent,” he said.
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