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David Hodson on International Family Law: Japanese family law

Sep 29, 2018, 17:32 PM
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Date : Sep 20, 2010, 07:15 AM
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Family law in the land of the rising sun and the abducted daughter

David HodsonLeading Japanese family lawyer, Mikiko Otani (motani@t-leo.com) has helpfully and forthrightly written on child abduction in Japan for the September 2010 edition of Jordans International Family Law journal. She describes the practice within Japan of sorting out children arrangements on parental separation. Japan remains one of the most closed jurisdictions within the international family law world, with procedures, laws and practices which seem at times to be utterly odds with conventional national and international practice. Mikiko's article hugely helps understand the Japanese position.

There is no law prohibiting parental child abduction, national or international, unless by physical force. It is not a criminal offence. An abduction to Japan, in breach of orders of other countries, will be treated only as a national enquiry into the best interests of the child with no or minimal weight given to the abduction or the previous international orders. Under Japanese law, only one parent is given parental authority which then gives exclusive entitlement to decide all issues regarding the child including location of residence. There is no statutory visitation or contact entitlement to the other parent who has almost no say in the child's subsequent upbringing such as education, health, adoption etc. There are no or minimal joint or shared parental residency arrangements.

Moreover there is a very strong mother-child preference on parental authority resulting from the continuity principle, so in practice few fathers (and even fewer non-Japanese fathers) have parental responsibility. The mere fact of applications by non-Japanese fathers for contact can be perceived as against the best interests of the child.

Japan is not a member of the Hague Convention and is unlikely to join soon, contrary to some expectations. Mikiko records there would be reluctance and resistance by lawyers and other professionals to implement the Convention. She records the few steps which might be possible although they will be regarded as extreme to Western eyes eg use of habeas corpus. Japan certainly adheres to Art 11 of UNCRC but in a way which may be unrecognisable in other countries.

Such is the likelihood that a Japanese court will simply ignore foreign court orders, including an abduction, that there should be great wariness before agreeing to contact in Japan or any opportunity to travel to that country by a Japanese parent. In our experience at The International Family law Group, very great care is needed, specialist experienced advice must be taken and the risk is always that a non-Japanese parent may never see their child again during their minority

Japan has distinctive processes of divorce including non-judicial divorces. An excellent judicial consideration is H v H (Queen's Proctor Intervening) (Validity of Japanese Divorce) [2007] 1 FLR 1318, specifically Kyogi rikon, the most common form of Japanese divorce. Perhaps the leading source for reliable practical information for Westerners on Japanese family law is the website of leading US international lawyer, Jeremy Morley (www.international-divorce.com).

David Hodson is a Consultant at The International Family Law Group. He acts in complex family law cases, often with an international element. 

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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