Institutional racism lets Japan spouses abduct kids

Written by Writer on Wednesday, October 15th, 2008

Institutional racism lets Japan spouses abduct kids

LONDON — Japanese courts should give more support to foreigners seeking access to their children now living in Japan, according to a British father seeking the return of his two daughters to England.

Shane Clarke said Japanese courts need to do more for the hundreds of foreign parents whose estranged Japanese spouses have taken children away from their home countries to Japan.

Once back in Japan, family courts will generally award custody to the Japanese parent even when the spouse (normally the mother) has deliberately taken children away from their home country.

The foreign father is rarely able to persuade the judge to grant joint custody or have the child returned to the home country. The courts will generally side with the Japanese mother who already has custody in an effort to avoid any further disruption of the child’s life.

This is the current situation Shane Clarke finds himself in, and he would like the British government to press Japan to get its courts to acknowledge the access rights of foreign fathers.

Britain is calling on Japan to improve the rights of foreign fathers, and the Japanese government said it is looking at legal moves to improve the situation. But Tokyo disputes claims that the courts are instinctively biased toward Japanese mothers.

Clarke’s problems began in January when his wife took his daughters, aged 1 and 3, to Japan on a long holiday to visit her family in Ibaraki Prefecture. She claimed her mother was terminally ill.

As far as Clarke was aware there were no major problems in the four-year marriage — although his wife did not like him seeing his other child by a previous marriage. But when he went out to see his wife in May, he realized something was wrong.

She acted strangely and in the end told him she and the children would not be returning to Britain.

In hindsight, he realizes it was a “very well planned child abduction.” His wife had taken all the necessary papers and, like many others before her, had decided to go back home because she could expect the courts to side with her.

He claims his wife has refused mediation and access to his children. She has now started divorce proceedings.

Clarke, 38, who lives in central England, has since been given an order from the British courts that declares that the children are “habitually resident” in Britain, and he claims his wife would be prosecuted under English law if she returned.

However, the family judge in Ibaraki Prefecture has told Clarke informally that if his case went to court, he would not order that the children return home or give Clarke access.

The judge explained that it was “complicated” and he did not have the powers to enforce an order coming from a British court, Clarke said.

Critics claim this habitual refusal from family courts stems from the fact that Japan has not yet ratified the Convention on the Civil Aspects of International Child Abduction.

In effect, the convention requires signatory states to order the return of children to their home countries and to provide police and legal assistance. Many major developed countries have signed on.

Clarke argues that aspects of Japanese law should already support foreigners in his circumstances. Even if Japan did sign the convention, he wonders whether its courts would actually abide by their obligations, given what he feels is the “institutional racism” in the judicial system.

Parental abduction is not recognized as a crime in Japan and there have been no extraditions of Japanese to countries where the child originally lived.

According to Clarke, there are as many as 10,000 foreign fathers currently in his position, including at least 23 from Britain.

“The message to Japanese nationals is that they can commit crimes on foreign soil and if they get home in time they won’t face extradition,” he said.

He said he has had little help from the British Embassy or government in his fight.

“I would never have let her leave Britain if I knew what was going to happen,” he said. “I need the kids returned to Britain. I have not spoken to the children since June. I miss them so much, it’s killing me.”

Clarke wants to highlight the situation, which he brands “Japan’s dirty little secret,” to get some changes in the family courts.

A spokesman for the Japanese Embassy in London said: “Japan acknowledges that the treaty is one tool in dealing with this situation. We are currently exploring the possibilities of signing it.”

The Japan Times