177th Diet, House of Councillors, Judicial Affairs Committee, #13

House of Councillors, Justice Committee, #13 (May 26th, 2011)

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088 Kentaro Kiniwa

 The End.

089 Fumiaki Sakurauchi

 I’m Fumiaki Sakurauchi from Minna no To.

 Today, I would like to ask a question mainly on how parental rights and custody rights should be after divorce, or how the interests of children should be promoted before divorce and in the process leading up to divorce.

 I would like to express my appreciation for the fact that the amendment to Article 766 finally clarifies visitation and child support in law and in the Civil Code, which is a great step forward.

 However, in practice, it is difficult to enforce visitation and child support in practice, so how can we ensure the effectiveness of family court judgments? This is somewhat beyond the scope of legislative policy, but I would like to ask the Minister what his thoughts are on this matter.

090 Satsuki Eda

 As you pointed out, we have changed Article 766 of the Civil Code to require parties to make efforts to agree on visitation and child support sharing at the time of divorce, but there are many cases where such agreements cannot be reached. However, there are many cases where agreements cannot be reached, which is a big problem. On the other hand, there are also cases where agreements have been reached, but they are not easily implemented, which is also a big problem.

 As for how to make the agreement effective, one of the current systems is to recommend implementation, and this is done by the family court. The other is indirect compulsory execution.

 It has been pointed out that indirect coercion itself is not very effective, and in order to make it even more effective, the most important thing is that both parties are satisfied with the agreement reached. In order to make this agreement even more effective, the most important thing is that both parties are convinced when the agreement is reached. When making such an agreement at the time of divorce, it is important to make sure that there is no anxiety that the child will be taken away if visitation is allowed, and that there are no conflicts at the time of divorce. It may sound like a roundabout way of saying this, but I think it is important to take the time and effort to make sure that there is enough discussion so that it does not drag on until later, or to make sure that the separating parents are fully aware of how important visitation is for the children. It is also necessary to have a system to support visitation and exchange, and I think it is important to enrich social understanding and social resources.

091 Fumiaki Sakurauchi

 Thank you very much.

 As a matter of fact, in the case of a negotiated divorce, as the Minister pointed out, before reaching an agreement, especially in matters related to the custody of the child, it is necessary to decide who will have custody or who will have custody of the child.

 In the case of a negotiated divorce, one party takes the child without agreement before reaching an agreement, or perhaps it is a bad term to use, but there is a separation with the child, and then the divorce is discussed. In such a case, as a legislative argument, when deciding who has custody of the child or who has the right to custody of the child, if, for example, the consultation is still in progress, or the child is unilaterally taken away without consultation and without agreement, then the child’s custody will be taken away. I have heard that there have been many cases where the custody of the child has been obtained through the fact that the custody of the child has been effectively taken, and the child has been taken in the divorce proceedings at the family court.  In order to cope with such cases, it has been reported in the press that there are cases of unilateral removal of children without consent, or filing a false domestic violence complaint under the Domestic Violence Prevention Law to prevent the child from being taken back.

 What I would like to say is that although it is very good that visitation and child support have been clearly stipulated in Article 766, the location of parental authority and custody authority, which are the basis of this Article, have been legislatively stipulated. I don’t know if this is a law, a government ordinance, or a ministerial ordinance, but there is a clause that says that if a parent removes a child against his/her will before reaching an agreement, this should be taken into consideration when deciding custody, or if a parent does not allow visitation, this should be taken into consideration when the family court decides to change the custodian. I think there should be such a clause as a legislative theory, but I would like to ask the Minister’s opinion on this.

092 Satsuki Eda

 The relationship between married couples, between ex-husbands and ex-wives after divorce, and between parents and their children are all very different. How to legally regulate such a wide variety of marital and parent-child relationships is quite a challenge, and I believe that the only way to do so is to create some sort of general legal norms. If the divorce is consensual, it is a decision to be made by the two parties, but if it is not, it is up to the family affairs judge to make a decision on an individual basis.

 In general terms, from the standpoint of the welfare of the child, the decision should be based on a comprehensive consideration of various circumstances, such as the intentions of the parents, the state of the child’s upbringing, the economic strength of both parties, the family environment, the age of the child, the child’s feelings and intentions, and the emotional stability of the child. However, the so-called principle of continuity, as the member of the committee pointed out, is based on various circumstances such as the ones I just mentioned, and it should not be the case that if you dare to move a child and place him or her under your control before an agreement is reached, the principle of continuity will protect you. If everything were the same, it would be better for the child to grow up in the same environment, but because of the principle of continuity, it is better for the child to be taken away.

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124 Yoshihiro Toyosawa

 I would like to answer your question.

 From the viewpoint of enhancing and strengthening the handling of family cases, the courts have been trying to improve the personnel system by increasing the number of staff by a considerable number, and we will continue to accurately grasp the trend of the number of cases and the status of case handling, etc., and try to improve the necessary system by paying close attention so that the smooth handling of cases can be achieved even after the amendment of the law.

 That’s all.

125 Satoshi Inoue

 The end.

126 Masayoshi Hamada

 As there are no other comments, I consider the questioning to be concluded.

 We will now begin the discussion. Since there are no other comments, we will begin voting immediately.

 All those in favor of the Bill for Partial Amendment to the Civil Code, etc., please raise your hands.

   All in favor raise your hands.

#127 Masayoshi Hamada  The vote is unanimous. Therefore, it has been unanimously decided that this bill should be approved as proposed.

 At this time, Mr. Sakurauchi has requested to speak, so I will allow him to do so. Mr. Fumiki Sakurauchi.

128 Fumiaki Sakurauchi

 I would like to submit a supplementary resolution to the bill for partial amendment of the Civil Code, etc., which was just passed, jointly proposed by the New Green Wind Society of the Democratic Party of Japan, the Liberal Democratic Party, the New Komeito Party, the Minna-no Party, and the Communist Party of Japan, as well as by Taimon Hasegawa, a member of the Diet who does not belong to any of the parties.

 I will read aloud the proposed text.

    Supplementary Resolution to the Bill for Partial Amendment of the Civil Code, etc. (Draft)

  The government and related parties should give special consideration to the following matters in implementing this law.

 (i) In order to ensure the proper operation of the system for suspension of parental rights, necessary measures should be taken, such as the improvement of the system of child guidance centers, family courts and other relevant organizations, and the strengthening of mutual cooperation, as well as the dissemination of the purpose of the amendment.

 (ii) Pay attention to the fact that requests for suspension of parental rights are made in order to secure the interests of the child, etc., and take necessary supportive measures such as cooperation in investigations to ensure that such requests are properly made by the child guidance center’s director.

 (iii) Efforts should be made to support efforts for reunification of parents and children, such as guidance for guardians by Child Guidance Centers during the period of suspension of parental rights, and necessary studies should be conducted to enhance support, such as improvement of the system of Child Guidance Centers and the system of recommendation to guardians by the Family Court.

 (iv) Promptly ascertain the actual situation of cases where child abuse has taken place again or measures such as admission have been taken again after a child who has been admitted to an institution has been discharged. In addition, when the child guidance center’s director makes a request for rescission of a trial for loss of parental rights, etc., the decision shall be made based on the actual situation in order to ensure the interests of the child, etc.

 (v) With regard to the necessary measures to be taken by the child guidance center’s director, the head of a child welfare institution or a foster parent, etc. with regard to a child, etc. under temporary custody, in placement or under entrustment, in order to be able to appropriately respond to each individual case, guidelines that provide concrete details and examples of the criteria for judging unreasonable claims by a person with parental authority shall be promptly prepared, and efforts shall be made to disseminate such guidelines to all persons concerned, as well as to improve the support system by providing training, etc.

 (vi) In order to ensure the smooth operation of the guardianship system for minors, take necessary measures such as public support for the remuneration of guardians of minors and support for the burden of insurance premiums related to the liability for damages associated with their duties.

 (vii) With regard to the parental authority system, in light of the situation surrounding families today and the situation after the enforcement of this Law, the Government should promote examination of the entire system with an eye to various family images, such as the nature and terminology of disciplinary authority, the method of determining parental authority at the time of divorce, the pros and cons of partial restrictions on parental authority, and the possibility of joint parental authority and joint custody after divorce.

 (viii) In order to prevent child abuse, efforts should be made to improve consultation and support systems related to child rearing, and to improve and strengthen the abuse notification counter, and further study should be made on the nature of restraining orders against guardians.

 (ix) With regard to the social foster care of children, continue to promote awareness and utilization of the foster parent system and foster care in a family-like environment, as well as endeavor to build a support system for relative foster parents and the support necessary to help them become self-reliant after leaving institutions.

 (x) With regard to children, etc. whose custodians, etc. have died or gone missing as a result of the Great East Japan Earthquake, in order to ensure their sound upbringing and benefit, every possible support should be taken to ensure that appropriate custody is taken, including the utilization of the guardianship system for minors and the foster parent system for relatives.

 (xi) With regard to visitation and payment of child support after divorce, from the perspective of protecting the rights and interests of the child, efforts should be made to disseminate the purpose of the explicitly stipulated arrangements to be made at the time of divorce, and necessary measures should be taken, such as examining systems to ensure smooth realization of visitation and continuous payment of child support, and conducting statistics and research on the status of implementation.

 (xii) To collect information from the courts and other relevant organizations on the status of the operation of the suspension of parental rights system after the enforcement of this Act, and to report to the Committee on an annual basis for the time being.

   Be it resolved as follows

 That is all.

 I would like to ask for the approval of all the members of the Committee.

129 Masayoshi Hamada

 We will now vote on the agenda item, the supplementary resolution submitted by Mr. Sakurauchi.

 Those in favor of this supplementary resolution, please raise your hands.

   All in favor raise your hands.

130 Masayoshi Hamada

 The motion is recognized as unanimous. Therefore, it has been decided that the proposed supplementary resolution submitted by Mr. Sakurauchi shall be unanimously adopted as the resolution of this committee.

 The Minister of Justice, Mr. Eda, has requested to make a statement in response to this resolution. Minister of Justice Eda.

131 Satsuki Eda

 With regard to the supplementary resolution to the bill for partial amendment of the Civil Code, etc., which was just passed, I would like to take appropriate action based on the purpose of the resolution.

132 Masayoshi Hamada

 In addition, I would like to leave the preparation of the examination report to the Chairperson of the Committee.    One person called “No objection.

133 Masayoshi Hamada

 There being no objection, it is decided as follows.

 The meeting will be adjourned at this time.

   The meeting is adjourned at 0:37 p.m.

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