Japan must bend on abducted children of foreign nationals

For too long Japan has stubbornly turned a blind eye to custody disputes in which children have been abducted from, or otherwise denied access to, a parent of foreign nationality, among them dozens of grief-stricken Australians.

An investigation by The Age, The Sydney Morning Herald and 60 Minutes has revealed that since 2004 at least 82 Australian children have been snatched or otherwise taken into sole custody by a Japanese parent who has then refused their former partner visitation or other contact rights. That is the number officially recognised by the Australian government; some believe the true total to be much higher.

David Fleming holds a picture of his abducted children at his rural property outside of Brisbane.Credit:Glenn Hunt

Nor is it a uniquely Australian problem: French authorities have identified more than 100 similarly abducted children; the United States counts 475. The personal cost to both the children and parents affected is understandably high.

Yet, as Eryk Bagshaw and Natalie Clancy report, the Japanese government is reluctant to intervene, hiding behind a smokescreen. It claims separations are private matters and that its distinctive sole-custody system is designed to protect those partners fleeing abusive relationships.

While the international community overwhelmingly recognises the right of a child to maintain a relationship with both parents, this is not the case in Japan.

Its Civil Code provides that once a court intervenes it can only grant one of the partners “parental authority”, which gives that parent almost complete decision-making power over their child’s welfare.

In practice this means that after an acrimonious break-up, one parent can spirit the child away and deny the other partner any meaningful parental relationship if they so choose. As Bagshaw and Clancy report: “In many cases, custody is granted to the mother or father who was last with the child, triggering a race to snatch the child and disappear before the other parent finds out.”

Subsequent court action pleading for access can be frustratingly ineffective. “Once visitation proceedings have started, it can be half a year or even several years before the other parent can see their child,” said a lawyer who handles custody disputes, Tamayo Omura, in the Japan Times. This affects locals and foreign nationals alike: surveys indicate a third of children lose all contact with one of their parents after separation in Japan.

In November, the United Nations Human Rights Committee noted it was “concerned about frequent cases of child abductions”, and criticised the Japanese government for a “lack of adequate responses”. That followed a 2019 report from its Committee on the Rights of a Child which heard from experts saying Japan’s custody laws “effectively prevented a child from keeping meaningful contacts with the non-custodial parent”.

Some wheels are turning. The Australian government is attempting to intervene on behalf of those parents who have been denied access to their children. Foreign Minister Penny Wong has said in a statement that concerns have been raised with her Japanese counterpart, Yoshimasa Hayashi, and Justice Minister Ken Saito.

The Japanese government’s Family Law Subcommittee, meanwhile, is examining what changes might be considered to amend the country’s custody arrangements, including a provision allowing for joint parental authority after divorce. But there is no certainty the law will be substantively changed or that any amendments would necessarily benefit those parents already cut off from their children.

While we should respect Japan’s sovereignty on this matter, clearly a solution must be engineered to reunite Australians and other foreign nationals who have unwittingly fallen foul of a custody regime unlike virtually any other in the world. If quiet diplomacy fails, then public pressure must be brought to bear on the Japanese authorities to see sense and bring an end to this nightmare.

Patrick Elligett sends an exclusive newsletter to subscribers each week. Sign up to receive his Note from the Editor.

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