Domestic relations cases and human rights

Below, I list a provisional translation of a part of a cited article in the “JFBA 60th Year Commemoration”, pages 277-279.

1 Children’s rights as a result of their parents' divorce

(1) Impact of divorce on children

When parents divorce or separate due to disputes, there are significant changes in the environment surrounding the child. When parents divorce or separate due to conflicts, there is a significant change in the environment surrounding the child, which can lead to a deterioration of the existing protective environment, and can also have a significant psychological impact. Especially for younger children, the impact on their mental and psychological well-being is significant. In addition, when parents separate or divorce, the child is placed under the care of one of the parents, and daily contact with the non-custodial parent is cut off. It is the right of the child to be protected in an environment that minimizes such negative effects on the child.

(2) Legislation on custody after divorce: Efforts to realize joint custody

The current Civil Code stipulates that when parents divorce, the custody of minor children is subject to the sole authority of either parent. However, due to this system of sole custody, custody disputes can become more intense than necessary, such as a fight for the custody of the child, or the other parent can lose all authority over the care of the child because custody is decided by one parent, and contact with the child can be cut off due to the lack of a visitation system. From the standpoint of the rights and welfare of the child, there are problems that cannot be overlooked. In this regard, in Western countries, the system of joint custody has already been realized, and it is possible for both parents to have the authority and responsibility for the custody of the child after divorce.

In Japan, too, the Civil Code, which only provides for sole custody, is no longer appropriate in light of the actual situation, and the Japan Federation of Bar Associations has held three symposia since 2006 and is continuing to conduct research and studies to revise the law in order to realize joint custody.

(3) Guaranteeing the Right to Visitation and Exchange

For a child who has been separated from his or her father or mother due to the divorce or separation of the parents, it is extremely important for the child’s development to have opportunities to have contact with the non-custodial parent or separated parent, to maintain emotional ties, and to maintain a good relationship with them. In addition, it is a right based on natural affection for parents to maintain contact with their separated children.

In practice, visitation with the child is recognized as a type of disposition related to the custody of the child, but there are times when the implementation of visitation is not smooth due to the conflicts and opposition between the parents. There are legal systems to enforce visitation, such as recommendation for performance and indirect enforcement, but they are not always sufficient.

In the future, it is necessary to establish a system to strengthen the guarantee of the right to visitation exchange, as well as to prepare and enhance institutions and systems to assist in the implementation of visitation exchange, and research and studies are being conducted to this end.

2 Child Abduction

In divorce disputes, there are often situations where one parent unilaterally removes the child upon separation, or where a non-custodial parent who is living separately takes the child. Normally, disputes over the custody of a child should be resolved through consultations or, if consultations are not possible, through family court proceedings, and the unilateral removal of a child without following such procedures is illegal. However, in Japan, even if there is such an illegal removal, under the practice of placing importance on the status quo, the illegal act is not considered as a problem at all, and the person who illegally removed the child is generally given an advantage in the decision of who has custody.

By the way, the Convention on the Civil Aspects of International Child Abduction (the so-called Hague Convention) is a treaty that provides for the handling of cases of international child abduction. It states that the removal of a child that infringes on the right to custody of one of the parties with joint custody is unlawful, and establishes procedures for the prompt return of the child in the event of such unlawful removal. Since Japan has not ratified this Convention, not only has it been accused internationally of being a paradise for the removal of children, but courts in other countries have also ruled that it is not appropriate to designate a parent of Japanese nationality as the custodian of a child on the grounds that Japan has not ratified this Convention.

The Japan Federation of Bar Associations (JFBA) has been making efforts to ratify the Convention by stating its opinion in the “Report of the Japan Federation of Bar Associations on the Second Report of Japan Based on the Convention on the Rights of the Child” (Counter Report) in May 2003, calling for the ratification of the Convention.

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