Sydney Morning Herald, December 8, 2008
Denial of child abduction as a crime is hurting those left behind, writes Justin Norrie in Tokyo.
Mr Obiso, 42, still recalls anxiously watching the clock in his Gold Coast home as he waited for their mother, Sachi Shimada, to return them on the designated day.
« I waited and waited. I kept listening out for their voices at the door, but they never came. Sachi had no intention of ever bringing them back, » says Mr Obiso, of Southport, who had split from his Japanese wife the previous year after she became depressed and withdrawn.
« Her family moved out of their Yokohama home, disconnected the phone and disappeared somewhere into Japan, so I couldn’t find them or even talk to my sons.
« It’s been four years. I’ve missed a large part of their childhood and I’m starting to doubt I’ll ever see them again. It’s been a horrible, horrible nightmare. »
Even if he found Anthony, now 12, and Jorge jnr, 8, Mr Obiso would be unlikely to get much sympathy from Japan’s family law courts. For almost 30 years, Japan has resisted pressure from other Group of Seven nations to sign the 1980 Hague Convention on the Civil Aspects of International Child Abduction; as such its judiciary does not recognise parental child abduction as a crime.
Mr Obiso is one of hundreds of « left-behind » parents from international marriages whose children have been abducted by a spouse who in effect enjoys immunity in Japan from prosecution by local authorities.
The Hague convention, which has been signed by every other developed country, requires the « prompt return of children who have been abducted from their country of habitual residence ». Since it took effect, foreign parents have spent millions of dollars working their way through Japan’s bureaucratic court system in an effort to see their children again and take them home. No court has ever ruled in their favour.
Many more Japanese parents have been affected. There is no tradition of dual access, so when parents separate, one gets custody while the other typically never sees the children again.
Colin Jones, a professor at Doshisha University Law School in Kyoto, believes that Japan is essentially « a haven for parental child abduction ». This is largely because Japanese courts are entrenched in a national bureaucracy whose goal is to ratify « the status quo, particularly in child custody and visitation cases, where courts have few, if any, powers to enforce change ».
The problem is compounded in cases where there are allegations of abuse, as Paul Wong can attest. After the death of his Japanese wife, Akemi, from cancer in 2005, the US lawyer, 42, left his daughter Kaya, now 5, with her maternal grandparents in Kyoto and made fortnightly visits from Hong Kong, where he was working, while he looked for a job in Tokyo.
« I promised my wife before she died I would make sure Kaya knew her Japanese cultural heritage and her grandparents, so I decided to honour that and live with her in Japan, » he says. « Just as I was about to move to Tokyo, Akemi’s parents hit me with a lawsuit alleging I had sexually assaulted my own daughter. The lawsuit was full of so many crazy, disgusting lies. Akemi’s friends told me they blamed me for her death, and that’s why they wanted to take Kaya away. »
The court found the claims could not be substantiated by evidence, but ruled that custody should be given to the grandparents anyway.
« This has done irreparable harm not just to me, but to a sweet, innocent child, » says Mr Wong. « It’s gut-wrenching, but I simply can’t give up hope. »
Japanese family lawyers say allegations of sexual assault and domestic violence are common in parental child abduction cases. In a recent article in Mainichi Shimbun, a prominent family lawyer, Kensuke Onuki, said he opposed Japan signing the convention because « in more than 90 per cent of cases in which the Japanese women return to Japan, the man is at fault, such as with domestic violence and child abuse ». Whereas women can’t easily provide evidence of the abuse, he says, the men rarely have trouble drumming up attention in the media.
For fathers like Mr Wong, this claim « is insulting. It simply doesn’t make sense. If it’s the voices of foreign fathers that get heard, then why is it that not one foreigner has had his child returned to him? Not one – ever. »
« A lot of people are getting fed up with the way Japan is running around the world lobbying for diplomatic support over the few Japanese abductees to North Korea, when the country is permitting hundreds of its own citizens to do the same thing to foreign parents in broad daylight. »
In September, after a newspaper report claimed Japan would sign the convention as soon as 2010, the Australian embassy in Tokyo sent a « formal government-to-government communication … commending them and offering assistance, » an embassy official said.
But Japan’s Foreign Ministry subsequently distanced itself from the report. A spokesman said the Government was still considering signing the convention but had not made a decision.