177th Diet, House of Representatives, Judicial Affairs Committee, #9

House of Representatives, Judicial Affairs Committee, #9 (April 26th, 2011)

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008 Masae Ido

 The Ministry of Justice is aware of the importance of a social support system to promote smooth visitation and exchange in order to realize this principle. The Ministry of Justice has been aware of the importance of a social support system to promote smooth visitation exchange, and in one of its recent answers, the Ministry said that it was conducting a survey on the actual status of support for visitation exchange on behalf of the government. The Ministry of Justice also has a survey on the actual situation of support for visitation exchange, and I would like to pay close attention to how the survey report is reflected.

 As I mentioned in my previous question, considering the number of divorces, the private sector alone cannot meet the demand for visitation exchange. As I mentioned in my previous question, considering the number of divorces, the private sector alone cannot meet the needs of visitation exchange. As I pointed out, it is important to create a public support system, but in order to provide support to a wide range of people, I think it would be better to make effective use of existing public institutions such as women’s centers. As for securing human resources, since there are bar associations all over the country, why don’t you consider utilizing existing facilities and human resources, such as lawyers? I would like to ask Mr. Hara, Director of the Civil Affairs Bureau, to answer this question.

009 Masaru Hara

 Commissioner, as you just said, in order for visitation exchange to be carried out properly, it is necessary for the government to create a system to support it, rather than leaving it to the parties concerned, so the Ministry of Justice will make efforts to build such a support system in cooperation with the Ministry of Health, Labor and Welfare and other related ministries.

010 Masae Ido

 For example, in order to improve the social support system and to realize the purpose of the amendment to the Civil Code, it is necessary to share roles and collaborate with related organizations.

 Specifically, I would like to ask you to consider establishing a liaison conference of relevant ministries and agencies. I would like to ask the Minister about this.

011 Satsuki Eda

 As you said, I think it is important for various related organizations, both public and private, to cooperate and provide support so that visitation exchange can be implemented smoothly. I think it is also essential to cooperate with related government ministries and agencies, and the Ministry of Justice would like to consider possible measures.

012 Masae Ido

 Of course, this cannot be done by the Ministry of Justice alone, so since the Vice Minister of Health, Labour and Welfare, Mr. Komiyama, is here today, may I ask what the Ministry of Health, Labour and Welfare thinks and how it intends to deal with this issue?

013 Yoko Komiyama

 The Ministry of Health, Labour and Welfare established the Child Support Consultation Support Center in 2007, and here we provide consultation not only on child support, but also on visitation exchange. In fiscal 2009, the center received 134 consultations on visitation exchange.

 In addition, at the Employment and Self-Support Centers for Single-Mother Families, which have been established in each prefecture, specialized counselors are assigned to provide consultation and support on child support and visitation. In FY 2009, the center received 394 cases of consultation on visitation exchange.

 In the future, the Ministry of Health, Labor and Welfare would like to continue to improve the consultation support system for visitation exchange by promoting the placement of specialized counselors at the Employment and Self-Support Center for Single-Mother Families, which does not have such counselors, as well as training for counselors and cooperation with related organizations.

014 Masae Ido

 When I heard that there were 134 or 394 consultations regarding visitation exchange, I was shocked. There are 140,000 divorces a year involving children who need to be taken into custody, but the number of consultations we have had is already overwhelmingly small, like this 394 cases. I would like to know why this did not go well.

015 Yoko Komiyama

 It is quite difficult to say, but I think that there are many conflicts between the parents that lead to divorce, and I think that there is a lack of support system for the parents to put their children first. In light of the forthcoming legal amendments, as you mentioned, I believe that this is a topic that needs to be addressed in a cross-ministry and cross-agency manner in order to protect children and their rights.

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016 Satsuki Eda

 When I studied civil law a long time ago, I understood that it would be better if the custodial parent had all the authority to take care of the child in the event of divorce, so that the axis of care, nursing care, and education for the child would not be blurred. I think there was such an understanding. I think that this was the root of why society in general had a hard time understanding that non-custodial parents are also parents, and that the parent-child relationship is important for the growth of the child.

 However, if you think about it, nowadays, couples have many different ways of being together and many different ways of breaking up. If they break up while shouting at each other, it is true that the conflict will remain for a long time, and they may not want to let their children see each other, or they may worry about being taken away. However, as we gradually develop smarter and better ways of separating, society’s understanding of the relationship between the non-custodial parent and the child will change. I believe that it is now necessary to spread such a new understanding in society.

017 Masae Ido

 I think that the reason why the number of divorce cases has been so small is that people were not aware that they had to make decisions about, for example, the cost of custody and visitation. I think that is why the Civil Code has been revised. I think that’s why the Civil Code was partially amended this time.

 The other day, when the Minister was not here, I suggested that when a divorce is negotiated, there should be a check box on the divorce form to indicate whether or not a decision has been made. If this were done, then, of course, it would not be a requirement for divorce to have been decided at that time, but I think we should make sure that people are aware that this is something that needs to be decided and that they are well informed. I would like you to consider this matter again.

 As I pointed out earlier, there has not been sufficient discussion on the issue of visitation exchange in relation to child abuse, but as we heard last time, not only visitation between parents, but also visitation between the child and the grandparents of the parent who is not living with the child after the divorce. In addition to visitation with the parents, we should also consider the grandparents of the parent who is not living with the child after the divorce, brothers and sisters who have been separated from the child, relatives who have lived with the child for a considerable period of time, and foster parents, citing examples from other countries. I asked the question.

 At that time, Mr. Hara, Director of the Civil Affairs Bureau, said, “In recent years, the number of small families and declining birthrates has been increasing in Japan, and divorce and remarriage have also been increasing. We are aware that there is a growing debate on the need to allow grandparents, siblings, etc. to have visitation with their children, and we would like to consider this issue while monitoring the progress of the debate. However, I would like you to clarify the process of such discussions, because many people are interested in this matter. Please answer this question, Mr. Hara, Director of the Civil Affairs Bureau.

018 Masaru Hara

 At this point in time, we do not have any concrete plans as to where we will discuss the issue or what the schedule will be.

 If you look at the history of the Civil Code, the Family Law was revised in 1947 with the enactment of the Constitution of Japan, and since then, individual parts of the law have been reviewed, but the Family Law as a whole has not been reviewed until now.

 As for the Family Law, the report on marriage and divorce law was issued in February 1996, but there were various opinions on the report itself and it has not been revised yet. Therefore, I believe that it is important to review the family law as a whole, and naturally, visitation and exchange not only between parents and children, but also with grandparents and siblings who show affection to the child, should be considered. I think that visitation with grandparents or siblings who show affection to the child, in addition to the parent and child, will naturally be a subject for consideration.

019 Masae Ido

 I would like to ask more about the Family Law in general later, but before that, I would like to ask about the fact that the provision on disciplinary authority was not deleted this time.

 In this revision, the description of disciplinary grounds was deleted, but the provision on disciplinary authority remained. In the committee meeting, one of the witnesses said that this provision should be deleted. I think the Minister’s reply was that there are various opinions on how parents should discipline their children and that it is very difficult to draw a boundary between discipline and discipline.

 I am not going to discuss the detailed legal argument here, but I am afraid that if the provision is deleted, it will send a strong message that child abuse is to be prevented, which will contribute to the prevention of abuse, and if the provision is retained, it may send the wrong message that corporal punishment and abuse under the guise of disciplining children is acceptable.

 I would like to ask again what the Minister thinks should be done in the future.

020 Satsuki Eda

 There is a lot of discussion about disciplinary action. There are those who argue that removing the provision for disciplinary action will lead to a false perception that discipline is no longer possible, and there are those who argue that there is no such perception.

 This time, of course, I deleted the word “disciplinary place” because it was obviously outdated from any perspective, but I retained the word “disciplinary” itself. However, although I am in this position now, when I was in charge of the Democratic Party of Japan, I once put together a bill to delete the provision on disciplinary action. I was not in charge of this, but in my capacity as the Next Minister of Justice, I proposed it to the DPJ.

 I believe that this is an issue that we will consider in the future, while keeping an eye on the status of this revision.

021 Masae Ido

 Thank you very much. Thank you very much. I hope we will be able to have further discussions in the future.

 Now, I would like to ask you again about family law in general.

 It has been fifteen years since the Legislative Council issued a report on the outline of a draft law to amend the Civil Code in February 1996. However, it has yet to be realized.

 In this revision, a part of the 1996 report will be revised, but in a sense, it is not quite clear. If it is the welfare of the child or the interest of the child that is at stake, it is the elimination of the discrimination against children born out of wedlock in the proviso of Article 900, item 4 of the Civil Code that should have been done. Even if it is said that it is for the sake of the child without doing this, I cannot help but wonder if it is really so.

 It is very rare for a country to discriminate against a child out of wedlock by law, and it has often been recommended by various committees of the United Nations. The Committee on the Rights of the Child has also requested that the discriminatory term “child born out of wedlock” be changed.

 If the law is not amended, not only will the discrimination by the law not be resolved, but the state of this country will also be questioned as it continues to disregard human rights by focusing only on the economy and finances as the center of politics.

 I would like to ask two people who are most familiar with the deliberations of the Legislative Council in 1996, Mr. Hara, Director General of the Civil Affairs Bureau, and Mr. Komiyama, Vice Minister.

 First, I would like to ask Mr. Hara, Director General of the Civil Affairs Bureau.

 I would like to ask Mr. Hara, first of all, whether there are any other bills other than the Civil Code Amendment Bill of 1996 that have been reported by the Legislative Council as the outline of bills and are still in the pipeline.

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055 Satsuki Eda

 I am well aware that the prevention of elder abuse has become an important issue, and I believe that the prevention of elder abuse is a problem that, in the first instance, should be resolved quickly through administrative action. However, it is also natural that society should support the elderly, the future of everyone, and the future of everyone. For this reason, a public nursing care system has been introduced, and although this system has various problems, it is natural that it should be further improved.

 However, the issue of nursing care is somewhat different from the issue of civil law, and when it comes to civil law issues, the adult guardianship system plays a role in cases where there is a problem with the management of property or a problem with the ability to manage property. Although this adult guardianship system is an issue in the world of family law and civil law, we will continue to monitor the relationship between family law and elder abuse.

056 Hiroko Oizumi

 Thank you very much. This concludes my question.

057 Ken Okuda

 Next, Mr. Hase Hiroshi.

058 Hiroshi Hase

 I am Hase Hiroshi of the Liberal Democratic Party. I look forward to working with you.

 I would like to ask a question on the issue of child abduction, following on from last week’s United Review Conference on April 20th.

 The revision of the Civil Code has further emphasized the importance of the best interests of the child. If this is the case, then I believe that one of the legislative purposes of the amendment is to ensure that the court makes a careful decision on the issue of the removal of a child from a couple with a minor child, taking into consideration the best interests of the child.

059 Satsuki Eda

 Currently, under the Family Affairs Tribunal Act, the family court decides on the surrender of a child in cases where a husband and wife are fighting for the child as a necessary matter regarding the custody of the child under Article 766 of the Civil Code. In this case, the proposed law clearly states the principle that “the interests of the child shall be given the highest priority.

060 Hase Hiroshi

 Specifically, when issuing a protection order under the Domestic Violence Prevention Law, the proper procedures should be followed more carefully; unjustified removal may be considered as child abuse in some cases; unjustified removal will work to the disadvantage when determining the custodial parent; on the contrary, a parent who is proactive in visitation will work to the advantage when determining the custodial parent. On the other hand, a parent who is active in visitation exchange has an advantage in determining the custodial parent.

061 Satsuki Eda

 Protection orders under the Domestic Violence Prevention Law require due process, or that the removal of a child may be child abuse in some cases, or that wrongful removal may be disadvantageous when determining custody and custodial parent, or that a parent who is active in visitation may be advantageous in determining custody, or that if visitation is broken without a valid reason I don’t disagree with any of your points that visitation can be an important factor in changing custody in general terms. I think this is an important point.

 However, when it comes to legislating this general theory, there are various points that need to be taken into consideration, such as the necessity, clarity as a rule, and whether or not there are other factors that need to be taken into consideration, so I think careful consideration is necessary at this stage.

062 Hiroshi Hase

 Next, I would like to ask a question on the issue of joint custody and joint parental authority.

 My intention in asking questions on this topic is to follow this general principle that even after divorce, the functions as parents should be performed jointly.

 First of all, the amendment was made with the best interest of the child at the core, but I believe that the further evolution of this trend is the introduction of joint custody and joint guardianship.

 Which major developed countries have introduced joint custody and joint guardianship? Please tell us which countries have introduced joint custody and joint parental authority, including those that have introduced it selectively.

063 Satsuki Eda

 I have not directly consulted the legislation of each of the major developed countries myself, but as far as I know, Germany, France, and the United States have all adopted joint custody systems after divorce, including as an option.

064 Hiroshi Hase

 In Japan, has the Legislative Council ever considered joint custody or joint parental authority? If not, why hasn’t it been discussed when there is so much debate in academia and the mass media?

065 Satsuki Eda

 In July 1955, the Subcommittee on Personal Status Law of the Civil Law Subcommittee of the Legislative Council issued a provisional decision on the Law of Relatives and reserved matters, in which it was stated that it was necessary to consider whether joint custody should be granted even after divorce.

 In addition, the Subcommittee on Personal Status Law of the Civil Law Division of the Legislative Council deliberated on the review of the marriage and divorce system in general from 1991, and in the draft outline compiled in July 1994, it was decided that the system of joint custody would be an issue for future consideration.

066 Hiroshi Hase

 Now, let me ask you.

 Why does it have to be sole custody?

067 Satsuki Eda

 When I was studying civil law, it was thought that if joint custody was used, the child’s care and education policies would not be unified, which would lead to a division in the child’s sense of values. In addition, I understand that there were various reasons for this, such as the fact that problems between the divorcing couple would be carried over after the divorce, or that it would be difficult to reach an appropriate agreement on joint custody.

 I believe that it is not a simple matter to say that all of these issues are still valid today, and that they still need to be discussed.

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068 Hiroshi Hase

 In this revision, it has been judged that the bond between parents and children should not be severed even after divorce, and that continuous interaction between parents and children is basically in the best interest of the child. Therefore, shouldn’t joint custody and joint custody after divorce be possible even on a selective basis? What do you think?

069 Satsuki Eda

 I think it is very important that visitation is clearly stated in the article as a specific example of a necessary matter regarding custody in the event of divorce, and that the principle that “the interests of the child shall be given the highest priority in making this decision. I believe that this is based on the concept pointed out by the committee member.

 However, it is not necessarily the case that there is a straightforward link between this and the system of joint custody and joint guardianship after divorce. Of course, it has to be exercised appropriately, but the current system was introduced based on the idea that visitation exchange is very beneficial, and again, the introduction of such a system does not immediately lead to the conclusion that joint custody is better. But that is not the purpose of saying that it is no good either.

070 Hiroshi Hase

 In my opinion, it is strange that this amendment does not allow for joint custody and joint care, even from the perspective of the system of custody provisions in the Civil Code.

 This is because the amendment to Article 820 of the Civil Code provides that parental rights are to be exercised for the benefit of the child, and Article 818, Paragraph 3 of the Civil Code provides that parental rights during marriage are to be exercised jointly, i.e., joint custody, for the benefit of the child. However, when a divorce occurs, sole custody is suddenly decided upon. It is called the best interest of the child, but after divorce, sole custody is imposed without considering what is in the best interest of the child. This means that even in the legal system, Article 819(1) itself, which provides for sole custody, is isolated and bankrupt. What do you think?

071 Satsuki Eda

 Until today, we have always had sole custody after divorce. However, I feel that immediately changing sole custody to joint custody is still one hurdle too high.

 If the trust, love, and education between the non-custodial parent and the child can be successfully fulfilled in cooperation with the custodial parent, this will be in the best interest of the child and the welfare of the child, and if such a relationship between parents and child can be established after divorce, even with sole custody, I think this is a very positive thing.

072 Hiroshi Hase

 Minister, please listen to this story for a moment.

 A woman who had an international marriage in Canada got divorced in Canada and came back to Japan with her child due to various reasons, and as a result of a trial at the family court in Japan, she was finally given sole custody. For one parent who divorced in Canada with joint custody, this is a problem that is not easy to understand. So to speak, this kind of thing can happen, and it has happened.

 Therefore, the Minister’s statement that international marriages and divorces are becoming more and more common is actually true in the field. This is why I think it is time to consult the Legislative Council once again, while considering the possibility of joint custody with an optional system.

 Since the amendment to the custody system is based on the principle of the best interest of the child and the importance of continuous interaction with the parents even after divorce, we should consider the best interest of the child after divorce and allow joint custody and joint upbringing, which is the most serious matter in custody, on a selective basis. In other words, a selective system. Unfortunately, of the requests we have made for temporary or partial suspension of parental rights, the partial suspension was not included, although there was some discussion on this. I have always thought that partial suspension may be necessary in some cases.

 I would like you to understand that this amendment to the Civil Code is not the end of the matter, and that we should further study the issue. I would like to hear the Minister’s opinion.

073 Satsuki Eda

 I am not very familiar with private international law, but I think that the governing law of marriage and divorce should be either Canada if it is Canada or Japan if it is Japan, but in reality, I think that there may be cases like what the member of the committee just mentioned.

 We have to overcome such confusion. We have to overcome such confusion. We have to make joint custody an option and suspend partial parental rights, and these issues have been discussed, especially partial suspension, at the Legislative Council this time.

074 Hiroshi Hase

 I would like to ask you again about a case in point.

 Two Japanese who were married in Canada got divorced in Canada. They had joint custody under the Canadian legal system. One of them, something happened, right? He came back to Japan and filed a court case and said he had sole custody. The Japanese who were left behind in Canada would be very upset about this. I’m sure you can understand. There are cases where disputes are still ongoing.

 There are also cases of international marriages between Japanese nationals married under foreign legal systems. When we think about joint custody, joint custody by choice, or joint custody in different countries, I think one of the points I am going to make now is that when divorcing, both parties should properly discuss and make a written plan for joint child-rearing and child-support payments. Please listen to me carefully. If you don’t have a written plan, you can’t get divorced. Of course, there may be times when the plan is not implemented, but I think that we should be prepared to deal with such situations, and I would like to ask the Minister’s opinion first.

Satsuki Eda

 However, there is another way of looking at it. If divorce is not possible until a child-rearing plan is properly decided, there are those who worry that divorce will be delayed for a long time and that relationships will become entangled in the process.

 As you mentioned, if the father and mother of the child are able to reach an agreement on visitation, sharing of expenses, and child-rearing plan with sufficient discussion and understanding, then there is no need for them to separate. However, if it becomes common in society that both fathers and mothers want to raise their children with a proper parent-child relationship, then I am not saying that it is wonderful to separate. I’m not saying that it’s wonderful to separate, but I think it’s one way of being, but in reality, it’s not quite there yet.

 In the case of Japan, marriage is concluded only by the consent of both sexes, and divorce is the same, so it is difficult to legislate the conditions for divorce and the requirements for divorce to be effective.

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168 Yoshinori Oguchi

 With regard to the proposed supplementary resolution that is now on the agenda, on behalf of the submitter, I would like to read out the draft text and explain the purpose of the resolution.

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

  The Government of Japan and the parties concerned should give special consideration to the following matters in implementing this Law.

 (i) With regard to the system for suspension of parental rights, necessary measures should be taken to ensure smooth implementation of the system, such as publicizing the purpose of the amendment, improving the systems of relevant organizations, and strengthening cooperation between family courts and Child Guidance Centers.

 (ii) With regard to requests for suspension of parental rights, in order to ensure the interests of children, etc., efforts should be made to ensure that such requests are properly made by the child guidance center’s director, and efforts should be made to improve the support system for child guidance centers, including cooperation in investigations necessary for such requests.

 (iii) Efforts should be made to improve efforts for the reunification of parents and children, such as guidance of guardians by Child Guidance Centers during the period of suspension of parental rights, and consideration should be given to the establishment of a system of recommendation to guardians by the Family Court regarding guidance of guardians.

 (iv) With regard to the guardianship system for minors, take the necessary measures to support the use of the system, such as public support for the remuneration of guardians of minors and support for the burden of insurance premiums related to liability for damages associated with their duties.

 (v) With regard to post-divorce visitation and payment of child support, etc., from the perspective of protecting the rights and interests of the child, efforts should be made to disseminate the clear-cut purpose of such arrangements so that they are made at the time of divorce. In addition, in order to ensure the continuous implementation of such arrangements, necessary measures should be taken, such as securing opportunities for visitation and exchange, providing support to those concerned such as intermediary support groups, and conducting statistics and research on the status of implementation.

 (vi) With regard to the parental authority system, in light of the situation surrounding families today and the situation after the enforcement of this Law, consider the state of the system in general, including the state of the consensual divorce system, the establishment of a system for partial restriction of parental authority and disciplinary authority, and the possibility of joint custody and joint custody after divorce.

 (vii) 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 under temporary custody, in placement, or under entrustment, the criteria for judging unreasonable claims by a person with parental authority should be concretely indicated and made known to the persons concerned, so that they can respond appropriately to each individual case, and the qualifications of the persons concerned should be improved through such means as conducting training for them.

 (viii) In order to prevent child abuse, efforts should be made to enhance and strengthen relevant measures, such as improving consultation and support systems related to child rearing and ensuring that all relevant persons are aware of the abuse notification counter.

 (ix) With regard to the social care of children, continue to promote the care of children in a home-like environment by promoting the awareness and utilization of the foster parent system and the reduction in the size of facilities, and strive to establish a consultation and support system to support independence and prevent isolation after leaving institutions.

 (x) Further examine the scope of restraining orders against guardians, which are limited to cases where compulsory admission measures have been taken and administrative measures have been taken to restrict all visitation and communication.

 (xi) Necessary support should be provided for children whose custodians have died or gone missing due to the Great East Japan Earthquake, so that they can be properly taken care of through the use of the guardianship system for minors and the foster parent system for relatives. That is all.

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

169 Ken Okuda

 This concludes the explanation of the purpose.

 The vote will now be taken.

 All those in favor of the motion are asked to stand.     All those in favor stand.

170 Ken Okuda

 All rise. Therefore, it has been decided that a supplementary resolution be attached to the motion.

 At this time, the Minister of Justice has asked me to make a statement regarding the supplementary resolution, so I will allow him to do so. Minister of Justice Eda.

171 Satsuki Eda

 As for 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.     ————-

172 Ken Okuda

 I would like to ask for your advice.

 I would like to leave the preparation of the Committee’s report on the bill to be voted on to the Chairperson of the Committee.     There is no objection.

#173 Ken Okuda  I see no objection. Therefore, it was decided as such.     ————-     The report can be found in the appendix.      —-◇ —–

174 Ken Okuda

 The next item on the agenda is a bill for the 176th Diet, submitted by the Cabinet and sent to the House of Councillors, for partial amendment of the Code of Civil Procedure and the Civil Provisional Remedies Act.

 This bill was voted on as an original bill in this House in the previous Diet session, and was sent to the House of Councillors for continued examination.

 Therefore, since you are already aware of the purpose of this bill, I would like to omit the explanation of the purpose at this time.     Is there any objection?

#175 Ken Okuda  I see no objection. Therefore, it was decided as such.     ————-  Bill for Partial Amendment to the Code of Civil Procedure and the Civil Provisional Remedies Act     [Listed at the end of this issue].     ————-

176 Ken Okuda

 There being no further questions or comments on this bill, the vote will be taken immediately.

 This is the 176th Diet, submitted by the Cabinet and sent to the House of Councillors, a bill to partially amend the Code of Civil Procedure and the Civil Provisional Remedies Act.

 I ask all those in favor of this proposition to please stand.     All those in favor, please rise.

#177 Ken Okuda.  All rise. Therefore, it has been decided that the proposition should be approved as originally proposed.

 I would like to ask for your advice.

 I would like to leave the preparation of the Committee’s report on the bill to be voted on to the Chairperson of the Committee.     There is no objection.

178 Ken Okuda

 I see no objection. Therefore, it was decided as such.     ————-     The report can be found in the appendix.     ————-

179 Ken Okuda

 The next meeting of the Committee will be held on Wednesday, May 11th, and we will adjourn for the day.

    Meeting adjourned at 4:10 p.m.

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