Maurice A. Deane School of Law at Hofstra University Scholarly Commons at Hofstra Law Hofstra Law Faculty Scholarship 2016 Foreign Fathers, Japanese Mothers, and the Hague Abduction Convention: Spirited Away Barbara Stark Maurice A. Deane School of Law at Hofstra University Follow this and additional works at:https://scholarlycommons.law.hofstra.edu/faculty_scholarship Recommended Citation Barbara Stark,Foreign Fathers, Japanese Mothers, and the Hague Abduction Convention: Spirited Away, 41N.C. J. INT'L L. & COM. REG. 761 (2016) Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/1086 This Article is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Faculty Scholarship by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please [email protected]. Foreign Fathers, Japanese Mothers, and the Hague Abduction Convention: Spirited Away BarbaraS tarkt I. Introduction ....................... ..... 762 II. Mothers Who 'Abduct' Their Children .... ..... 765 A. Before Japan Ratified the Abduction Convention .................... ..... 765 B. Since Japan Ratified the Abduction Convention .................... ..... 769 III. Diverse Criteria for Custody and Access: The Japanese Approach ......................... ..... 771 A. Divorce ...................... ...... 771 B. Custody ................... ........772 1. The "Will of the Chil d".......... ..... 774 2. The Human Rights of the Child ......... 775 C. The Family Registration System (Koseki)...........779 IV. The 'Emerging Jurisprudence' of the Abduction Convention..................... ....... 781 A. Domestic Violence............ ................ 781 B. Modifying Treaties.......... .. .......... 782 1. A Cumbersome Process ............... 783 2. Domestic Laws as an Alternative....................784 a. Ne Exeat Clauses ........... ................. 784 b. Japan's Implementing Legislation.............786 C. Relocation After Divorce and the Problem of Bad Faith ................ 7.8.9...... V. Conclusion.............................791 f Barbara Stark, Professor of Law and John DeWitt Gregory Research Scholar, Maurice A. Deane School of Law at Hofstra University. I am deeply grateful to Professors Colin Jones and Frank Ravitch, for their generous introduction to Japan and Japanese family law, to international reference librarian Patricia Kasting and law student Kaneyasu Yosada for invaluable research assistance, to Mary Scruggs for organizing this symposium, and to Joyce Amore Cox for her skill and patience in preparing the manuscript. 762 N.C. J. INT'L L. [Vol. XLI I. Introduction In SpiritedA way,' a ten-year-old Japanese girl, Chihiro, is in a car with her parents driving to their new home, when her father takes a wrong turn. The road ends at the entrance to an abandoned theme park. Although Chihiro is reluctant to get out of the car, she joins her parents, who want to explore. Chihiro finds herself in a world ruled by gods, witches, and spirits, in which nothing is as it seems. Her parents cannot help because they have both been turned into pigs. As this movie shows, family transitions may be strange and frightening. It is the international family lawyer's job to help her client-usually a parent-get through it, regain human form, and remain a part of the child's life after divorce. The hope is that the client, like Chihiro at the end of the film, can say, "I think I can handle it."2 While The Hague Convention on the Civil Aspects of Child Abduction (the "Abduction Convention")3 was drafted to facilitate this process, its application in cases involving Japanese nationals is problematic, especially in cases where the mother is Japanese. This Article explains why this is so, and why it is so hard to harmonize the family laws of different countries. It also describes the real risks that a child, or a parent, may be 'spirited away,' with no chance of actual contact, for far too long. "'Legal kidnapping' ... the removal [of a child], from one country to another by a parent [from another parent]" had become an issue in every Member State of The Hague Conference on Private International Law4 by 1976. It was proposed at the Thirteenth Session that the Conference prepare a treaty to address "this topic, which has become broadly intercontinental in its scope with patterns of abduction routes cross-hatched across the globe, from Australia to Austria, from Canada to France (and back, by way of the secondary abduction), from Berlin to Israel, England to Holland, I See Spirited Away, IMDB, http://www.imdb.com/title/tt0245429/?ref ynv_sr_1 [http://www.perma.cc/U4L6-FSTX] (last visited Mar. 2, 2016). 2 Id. 3 Convention on the Civil Aspects of International Child Abduction, opened for signature Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (entered into force Dec. 1, 1983) [hereinafter Convention on the Civil Aspects]. 4 Adair Dyer, Report on International Child Abduction by One Parent ("Legal Kidnapping"), Prelim. Doc. No. 1, Aug. 1978, in 3 HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, 14TH SESS., OCT. 6-25, 1980, Actes etDocuments de la Quatorzibme Session: ChildA bduction 12 [hereinafterD yer Report]. 2016 JAPANESE MOTHERS AND THE HAGUE ABDUCTION CONVENTION 763 Holland to Morocco and so on in a seemingly endless flow."' Forty years later, the Abduction Convention is generally regarded as "extremely successful," with more than ninety states parties and an emerging global jurisprudence.6 Recent contributions to the Abduction Convention's success include the U.S. Supreme Court decision in Abbott v. Abbott' and Japan's ratification of the Convention in 2014.8 This Article revisits three basic assumptions by the original drafters of the Abduction Convention (and the original states parties) that are no longer true. It considers these assumptions in the context of Japan's recent ratification of the Abduction Convention, and the sharp criticism of Japan's implementation that has already surfaced. The first assumption was that the Abduction Convention was necessary to prevent non-custodial fathers from kidnapping their children.' Mothers, including Japanese mothers, are now in fact usually the abductors."o Second, the drafters of the Abduction Convention assumed that states parties had varying criteria for determining custody." As explained below, this 5 Id 6 See Linda Silberman, Interpretingt he Hague Abduction Convention: In Search of a Global Jurisprudence,3 8 U.C. DAVIs L. REV. 1049 (2005). 7 Abbott v. Abbott, 560 U.S. 1 (2010). 8 Japan Signs and Ratifies the 1980 Hague Child Abduction Convention, HCCH (Jan. 24, 2014), https://www.hcch.net/en/news-archive/details/?varevent--344 [https://perma.cc/7S6P-SS3R]. 9 Summary ofFindings on a QuestionnaireS tudied by InternationalS ocial Service, Prelim. Doc. No. 3, Feb. 1979, in 3 HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, supra note 4, at 134 [hereinafter ISS Summary] (noting that out of 110 sample cases selected by local ISS units, the father was the abductor in eighty, and the mother was the abductor in eighteen). 10 Nigel V. Lowe & Katarine Horosova, The Operation ofthe 1980 HagueA bduction Convention-A Global View, 41 FAM. L.Q. 59, 67 (2007) (analyzing statistical studies finding that a "high proportion" [68-70%] of abductors were mothers); see, e.g., Linda Silberman, The Hague Child Abduction Convention Turns Twenty: Gender Politics and Other Issues, 33 N.Y.U. J. INT'L L. & POL. 221, 224 (2000) ("Over time, however, many 'abductors' have turned out to be custodial mothers-mothers who have lived abroad during the marriage, who have obtained custody when the marriage fails, and who desire to return to their home country after the breakdown of the marriage."). 11 Dyer Report, supra note 4, at 22. The drafters explicitly noted that: [T]he legal standard used in most of the countries of the Hague Conference for determination of custody and care of a child is keyed to "the best interest of the child." On a worldwide scale, however, a large number of countries retain the more traditional legal standards for the 764 N.C. J. INT'L L. [Vol. XLI diversity of criteria has been replaced, for the most part, by the assumption that a continuing relationship with both parents is in a child's best interests.12 Third, it was assumed that the Abduction Convention would function as a formal, procedural corrective;" that is, its purpose was simply to return the child to her 'habitual residence,' and to a court authorized to determine custody. But the return of the child in itself often raises preliminary, substantive issues that must be addressed. Part II of this Article describes the increase in international marriages involving Japanese nationals, the headlines made by Japanese mothers 'kidnapping' their children and taking them back to Japan, and the outrage of Western fathers denied access to their children. In 2014, after thirty years of foreign pressure, including pressure from foreign fathers' rights groups, Japan finally capitulated and ratified the Abduction Convention. This Part concludes by noting that the results, while disappointing to some, should not be surprising in view of Japanese family law, described in Part II. Part III sets out the Japanese approach to divorce, custody, visitation, and, more generally, the relationship between the family and the state in Japan. It is presumed that sole custody is usually preferable in Japan, with visitation by the non-custodial parent left to the discretion of the custodial parent. These criteria, explicitly contemplated by the drafters in 1980,14 make Japan a relative outlier in 2016. The trend toward ongoing contact with both parents may assignment of custody, which range from the establishment of a presumption or an irrefutable right in favour of one sex or the other to systems where the legal dispute over custody centers around the 'fitness' or 'unfitness' of one of the parents .... Id.; see also ISS Summary, supra note 9. 12 See infra Part IIR 13 Elisa Pdrez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention, in 3 HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, ACTS AND DOCUNENTS OF THE FOURTEENTH SESSION, CHILD ABDUCTION 429 (1982), https://www.hcch.net/en/publications-and-studies/details4/?pid=2779 [https://perma.cc/ T7KP-YZSL]. 14 Dyer Report, supra note 4, at 22 (citing JOSEPH GOLDSTEIN ET AL., BEYOND THE BEST INTERESTS OF THE CHILD (1973)). See generally Jane Spinak, When Did Lawyers for ChildrenS top Reading Goldstein, Freud and Solnit? Lessonsf rom the Twentieth Century on Best Interests and the Role of the Child Advocate, 41 FAM. L.Q. 393 (2007) (hypothesizing that the nations that signed the Convention have failed at keeping the child's best interest at the center of their policies). 2016 JAPANESE MOTHERS AND THE HAGUE ABDUCTION CONVENTION 765 also be in tension with deference to the 'will of the child' under Japanese law. This resonates with the right of the child to have her opinion taken into account and to participate in decision-making, as set out in the Convention on the Rights of the Child (CRC).1s Part IV discusses the emerging jurisprudence of the Abduction Convention, including the growing recognition of the role of domestic violence in these cases, and its implications for Japan. This section highlights Japan's response to domestic violence by foreign husbands, which some critics contend shows Japan's bad faith. The Article concludes that the emerging jurisprudence of the Abduction Convention should be robust enough to accommodate a range of custodial assumptions, especially for those states parties that cannot rely on the recent decisions of the European Court of Human Rights, or other human rights tribunals, to temper the decisions of foreign courts before which their nationals appear. The Abduction Convention is unlikely to function as originally intended, because the drafters' assumptions are no longer true. As in Spirited Away, things are not as they seem. Whether the Convention is still useful, whether it can prevent children, or parents, from being SpiritedAway, may ultimately depend on the good will between the states parties in a specific case. H. Mothers Who 'Abduct' Their Children A. Before JapanR atified the Abduction Convention The factors that convinced The Hague Conference to draft the Abduction Convention in the 1970s16 did not immediately affect family law in Japan. While divorce rates in Japan, like those in Western states, rose steadily from the 1960s until the 1990s,17 it was not until 2011 that Professor Takao Tanase observed that disputes 15 Conventions on the Rights of the Child, openedfor signatureN ov. 20, 1989, 1577 U.N.T.S. 3 (entered into force Sept. 2, 1990). 16 See Dyer Report, supra note 4, at 18 (describing factors contributing to "rapid increase" in international child abduction, including "great improvements in international transportation and communications" and "trend towards freer crossing of borders, fewer visa requirements and decreasing rigour of passport control"). 17 TAKAO TANASE, POST-DIVORCE LAWS GOVERNING PARENT AND CHILD IN JAPAN 42 tbl.2 (2010), http://www.1aw-t.jp/pdf/post-divorce-lawsUSDeptOfState 20100914.pdf [https://perma.cc/8ZUE-Q9ST]. 766 N.C. J. INT'L L. [Vol. XLI over visitation "almost quadrupled over the last ten years."" Even then, as Professor Colin Jones notes, the number of cases involving a non-Japanese spouse or parent were a "very small minority."l9 These few international cases, however, attracted considerable international attention. Chie Kawabata was divorced from Kris Morness in 2012 in Seattle, Washington.20 The mother had primary custody of their five-year old son, and the father had eight weeks visitation in the summer in Vancouver.21 In a post-divorce application, Kawabata sought permission to relocate to Japan.22 She explained that her mother had been diagnosed with stage four colon cancer and that she wanted to spend more time with her, and that her five year old son was very close to his maternal grandmother.23 In addition, she had been offered a promotion to work for Cisco in Japan, which would significantly increase her income and also offered a more flexible work schedule so that she could spend more time with her son.24 The summer visitation would remain the same, she assured the court, and she would also make her son available to communicate with his father via skype and telephone.25 Kawabata's application was denied by the court on the ground that, "the detrimental effects of relocation outweigh the benefits."26 Disregarding the court order, Kawabata bought one-way tickets to Japan for herself and her son.27 Kawabata sent her ex-husband 18 Takao Tanase, Divorce and the Best Interest ofthe Child: Disputes over Visitation and the Japanese Family Courts, 20 PAC. RIm L. & POL'Y J. 563, 563 (Matthew J. McCauley trans., 2011). 19 Colin P.A. Jones, Towards an Asian Child Abduction Treaty? Some Observations on Singapore and JapanJ oining the Hague Convention 5 (Asian Law Inst., Working Paper Ser. No. 31, 2013) (noting that 7.5% of divorces in Japan in 2010 were "international," involving a non-Japanese spouse and that 2%, or 22,000 children, were born in households with one non-Japanese parent). 20 Levi Pulkkinen, KirklandM om Accused ofFleeing to Japan to Thwart Parenting Plan, SEAnEPI (Sept. 18, 2013), http://www.seattlepi.com/locallarticle/Kirkland-mom- accused-of-fleeing-to-Japan-to-4824996.php [https://perma.cc/WFS5-RX9L]. 21 See id. 22 Kawabata v. Morness, No. 11-3-00982-SEA (King Cty. Super. Ct., Wash., June 5, 2012), http://chiekawabata.com/assets/pdf/2012.06.05-Relocation-to-Japan-Motion.pdf [https://perma.cc/GMG5-DRZU] (Notice of Intended Relocation of Children). 23 See id. at 1-2. 24 See id. 25 See id. 26 Pulkkinen, supra note 20. 27 Id. 2016 JAPANESE MOTHERS AND THE HAGUE ABDUCTION CONVENTION 767 an email, in which she explained that that, "The torment I have endured in recent years have left me ... emotionally ruined and forced my hands to take this step that I wish I did not have to take."28 The prosecutors quickly filed custodial interference charges against Kawabata, a kidnapping-related felony punishable by imprisonment.29 Prosecutors in King County charged three other Japanese women, all of whom fled to Japan with their children, with the same crime.30 In addition, the family courts in two of the cases had awarded the fathers sole custody following the mothers' disappearance." Christopher and Noriko Savoie were married and lived in Japan for fourteen years before moving to Tennessee with their two children, eight-year-old Isaac and six-year-old Rebecca.32 Shortly after the move, Christopher began an affair." The Savoies divorced in January 2009 and Noriko was given custody of the children.34 The divorce was bitter." Roughly a month after the divorce, Noriko emailed her ex-husband and threatened to return to Japan with the children: "It's very difficult to watch kids becoming American and losing Japanese identity .... I am at the edge of the cliff. I cannot hold it anymore if you keep bothering me." 36 Christopher immediately sought a court order to prevent her from taking the children to Japan." At the hearing, Noriko told the court: "I was very, very-at the peak of my frustration. .. . He actually married three days before that e-mail. He remarried the person-a woman whom he was having affair, so I was very depressed and-but also angry."38 In response to a query by the court-appointed parental coordinators regarding her plans to take 28 Id. 2 9 Id 30 Id 31 Id 32 Mallory Simon, Dad in Japan Custody Battle Thought Wife Would Take Kids, CNN (Oct. 2, 2009), http://www.cnn.com/2009/WORLD/asiapcf/10/02/japan.savoie. custody.battle/index.html?_s=PM:WORLD [https://perma.cc/W2HU-RDYZ]. 33 See id. 34 See id. 35 See id. 36 Id. 37 Id 38 Id 768 N.C. J. INT'L L. [Vol. XLI the children to Japan, Noriko replied, "I think the kids will be happy if I'm happy."" The judge asked her whether she would be willing to put up money to guarantee their return and she agreed, but was not required to do so.4 Judge James G. Martin III told Noriko that she would lose her alimony, education funds and other money if she fled with the children, before ruling that she and the children could go to Japan for a vacation.41 She and the children left, and returned to Tennessee as promised.42 A few days later, however, Noriko returned to Japan with the children. The Tennessee court awarded Christopher sole custody, but Japan had not yet ratified the Abduction Convention. Christopher knew that a Japanese court would be unlikely to grant him custody, or even visitation, especially since he and Noriko were still considered married under Japanese law.43 Christopher decided to take matters into his own hands.44 He flew to Japan and grabbed the children as Noriko was walking them to school.45 He fled to the nearest U.S. consulate, yelling at the guards to let him in.46 He was arrested by the Japanese police, who said that the children were Japanese and had Japanese passports.47 "I want Americans to know what's happening to me," Christopher told reporters, speaking in Japanese.48 "I didn't do 39 Id. There is ample social science evidence supporting the proposition that, "in general, what is good for the custodial parent, is good for the child." See Judith Wallerstein & Tony J. Tanke, To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce, 30 FAM. L.Q. 305, 315 (1996). 40 Simon, supra note 32. 41 Id 42 Id. 43 Their marriage had been entered in the family registry and no divorce had been entered. See infra Part III.C (describing the family registry system in Japan). 44 Desperate Father Who Tried to 'Snatch' Children Back from Runaway Japanese Mother Awarded $61 Million Settlement, DAILY MAIL (May 10, 2011), http://www.dailymail.co.uk/news/article-1385401/Desperate-father-Christopher-Savoie- tried-snatch-abducted-children-runaway-Japanese-mother-awarded-6- 1 -million-settleme nt.html [https://perma.cc/L8EJ-5SYM] [hereinafter DesperateF ather]. 45 Id 46 Simon, supra note 32. 47 Id. 4 8 Id 2016 JAPANESE MOTHERS AND THE HAGUE ABDUCTION CONVENTION 769 anything wrong."49 After three weeks in a Japanese jail, he returned to Tennessee, where he was awarded $6.1 million by a sympathetic Tennessee court. 0 Christopher Savoie became the poster child for aggrieved Western fathers." Following his arrest in September, the ambassadors from the United States, Canada, France, New Zealand, Italy, Australia, and Spain met with Japan's then-Foreign Minister in October 2009 to "reiterat[e] that [they] place the highest priority on the welfare of children who have been the victims of international parental child abduction, and stressed that the children should grow up with access to both parents."52 The Japan Times reported that when Japanese Prime Minister Shinzo Abe visited President Obama in February 2013, he reportedly promised that Japan would join the Abductions Convention.53 "From the perspective of children, there is an increasing number of international marriages and divorces," Abe told reporters, "We believe it is important to have international rules."" B. Since JapanR atified the Abduction Convention According to the Japanese Foreign Ministry, the treaty has "helped prevent child abductions to Japan."ss The ministry received twenty-five requests for help from parents seeking the return of children who were taken to Japan in the twelve months after Japan became a party to the treaty, in contrast to the eighty-one cases of children taken from the United States, thirty-nine each from Britain 49 Id. 50 DesperateF ather, supra note 44. 51 Id. See generally Dyer Report, supra note 4, at 19 (explaining how the frustration of non-custodial parents with "the slowness, expense and inefficacy of legal proceedings" contributes to "re-kidnapping"). 52 Charlie Reed, Japan Urged to Join Abduction Treaty, STARS & STRIPES (Feb. 2, 2010), http://www.stripes.com/news/japan-urged-to-join-abduction-treaty-1.98572 [https://perna.cc/T3VD-H6J7]. 53 Nathalie-Kyoko Stucky & Jake Adelstein, Japan's Child Kidnapping Problem, DAILY BEAST (May 19, 2013), http://www.thedailybeast.com/articles/2013/05/19/japan-s- child-kidnapping-problem.html [https://perma.cc/Y25C-6KRW]. 54 Id. 55 May Masangkay, Child Abductions down in Year Since Hague Pact, but Not All Are Happy, JAPAN TIMES (Apr. 2, 2015), http://www.japantimes.co.jp/ news/2015/04/02/national/child-abductions-year-since-hague-pact-happy/#.VtezJVIdLOs [https://perma.cc/5C4H-EBXU].