International Child Abduction in Japan - Parental Child Abduction in Law

Parental Child Abduction in Law

In some countries, international child abduction is a felony. The US made it so in the International Parental Kidnapping Crime Act of '93. In the United Kingdom the Child Abduction Act 1984 provides that the offence of abduction of a child by a parent is committed only if the child is taken out of the U.K. for a period exceeding one month.

In the case of Japan, CNN quoted an unnamed official in the U.S. Embassy in Tokyo who stated, "Our two nations approach divorce and child-rearing differently. Parental child abduction is not considered a crime in Japan." However, this statement is contradicted by several Japanese news media sources which report arrests involving parental abduction in Japan. The Supreme Court of Japan categorically ruled that a parental abduction in which force and coercion is used to remove child constitutes the felony of kidnapping of a minor irrespective of person's custodial right. The case concerned a couple who were separated but not divorced so the abducting father held joint custody. Therefore, while civil liability (or criminal liability in some countries) for parental abduction arise out of custodial interference of a parent and is not legally defined as kidnapping, in Japan, parental abduction is a kidnapping if it disrupts a child's residence or relationship with the primary caregiver. At the same time Japanese family courts have no enforcement mechanism in civil matters so they strongly encourage parents to engage in mediation in order to agree to custody arrangements on their own and rarely intervene in matters such as visitation and child support which are seen as private. Furthermore, it is rare for a nation to extradite one of its own citizens to another country for alleged parental abduction. On the other hand, a foreign national father, trying to re-abduct his child in Japan by force, may face arrest and possible criminal prosecution irrespective of his custodial status in the child's home country. Moreover, a foreign father trying to abduct children by force to another country would face the extra charge of "kidnapping for the purpose of transporting the kidnapped person to a foreign country" (Article 226(1) of the Penal Code), which carries the penalty of imprisonment with labor for a limited period of not less than two years. The law, which was originally designed as an extra penalty for the kidnapping of a minor for sexual slavery in China, is now used for preventing forced abduction from Japan by a parent. This provision of the Penal Code was amended in 2005 so that it covers kidnapping and abduction from any country, not just Japan. This means that it constitutes a criminal offence under Japanese law for a Japanese national to abduct his or her own child by force in another country and bring the child to Japan, and in such cases Japanese police and prosecutors could initiate criminal proceedings. However, this provision likely will not apply to cases where a Japanese mother who is the primary caregiver brings her children back to Japan in defiance of the custodial ruling of a foreign court, as this would not likely be seen to involve coercion or force against the child.