The judicial trend to find blockage or refusal of visitation an illegal violation of human rights is expanding

I sourced the following decisions from the Free Visitation Class Action’s complaint and added things like case numbers. I will follow this post with the full text of each decision.

The right of visitation between parents and children is a fundamental human right for both parents and children, which has been recognized in the following Japanese court decisions.

  1. S39/1964 (ie) 10192 (Decided on 12/14/1964 in the Tokyo Family Court)
    “The right to meet and interact with a dependent child shall not be restricted or taken away unless it is detrimental to the welfare of the dependent child.”
  2. S42/1967 (RA) 382 (Decided on 8/14/1967 at the Tokyo High Court)
    “The right of a parent who has not assumed parental authority to have visitation with his or her child is a natural right obviously recognized as a result of the status relationship between the parent and child.”
  3. S43/1968 (ie) 807 (Decided at the Osaka High Court on 5/28/1968)
    While using the expression “the right of visiting and interacting” the court stated that this is a right that parents inherently have.
  4. H5/1993 (ie) 433 (Decided at the Osaka Family Court on 12/22/1993)
    “Every child shall be respected as an individual and, as a useful member of a peaceful and civilized nation, shall be guaranteed the fundamental human right to seek the perfection of his or her personality and the sound development of mind and body (Article 26, Paragraph 1 of the Constitution; Article 1 of the Fundamental Law of Education). In other words, it must not be overlooked that the child is not only an object of parental rights under the Civil Code, but is also a subject of rights under the Constitution.
    In light of this spirit, the nature of the right to visit and interact has the aspect of being a right granted to parents in order to fulfill their duty to take care of their children, but it should also have the nature of being a right of the child to seek the enjoyment of his or her parents' love and education, which is indispensable for the amicable development of his or her personality.”
  5. H10/1998 (WA) 548 (Decision of the Hamamatsu Branch of the Shizukoka District Court on 12/21/1999) Therefore, the right to visit and interact with the child is based on parental authority, which is a natural right that naturally arises from the status relationship between parent and child, and when this authority is suspended, it can be said to be constituted as a right related to custody, and should be recognized on the basis of parental love and for the welfare of the child.
  6. H25/2013 (RA) 1205 (Decision of the Tokyo High Court on July 3, 2013)
     The child can feel secure that he or she is loved by both parents through the smooth implementation of visitation with the parent who does not live together. Therefore, in order to recover the child’s sense of loss caused by separation due to marital discord and the unstable psychological situation caused by this, and to promote sound growth, it is reasonable to implement visitation unless there are special reasons to restrict visitation such as harming the welfare of the minor.
  7. H30/2018 (MO) 4031 (Yokohama District Court, July 20, 2018)
     The Yokohama District Court’s July 20, 2018 decision approving a provisional disposition prohibiting the obligee from interfering with the visitation of the parents in a nursing home by the eldest daughter and two younger daughters stated that “the obligor’s intentions have affected the conduct of the facility where the parents reside, and the obligee is currently unable to visit the parents. It can be said that the creditor is currently unable to visit her parents because the debtor’s intentions affect the conduct of the facility where her parents live. In this case, the court held that the creditor could not prevent the child from requesting to see his parents based on the “right of the child to see his parents” as one of the contents of moral rights.
  8. H30/2018 (WA) 14188 (Tokyo District Court decision of November 22, 2019)  In addition, the Tokyo District Court’s November 22, 2019 judgment issued a compensation order in case H30/2018 (MO) 4031 (number 7 above), in which the third daughter sought damages from the eldest daughter and the two second daughters who had obstructed her visitation with her parents, on the grounds that “the child’s simple desire to have visitation with her parents and the benefits of visitation are worthy of legal protection.

As is clear from these cases, the right of visitation between parents and their children is guaranteed as a “fundamental human right” under the Constitution of Japan, which is included in the personal rights and the right to pursue happiness guaranteed by Article 13 of the Constitution.

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