Missing link between domestic violence and child abuse in custody disputes in Japan

1. Missing link between domestic violence and child abuse in custody disputes in Japan International Conference and Workshop on Ending Violence Against Women, 18-20 December 2011, National Taiwan University, Taiwan Mutsuko Takahashi Kibi International Unviersity

2. - - - - A couple of questions as point of start- - - - How can we better help battered women/mothers and abused children? The number of reported cases of DV and child abuse keeps increasing in Japan. For example, one out of four women experiences physical violence; one out of 23 women threatened life (more than 2 million in total); annually 2400 protection orders. Public awareness on DV and abuse has slightly been improved. However, supports and intervention in practice have not always been successful. How can we properly prioritise the safety and sound development of children especially in post-divorce settings? Recently, divorced fathers (noncustodial parent) seek access/contact to children more actively than before. At the same time, there is emerging the debate on legal reform (transition from current single custody system to introduction of joint custody as alternative).

3. Reflections over the past and the present situations: a long record of repeated failure in helping victims (and treating batterers adequately) of DV/abuse • The understanding on “link between DV and child abuse” is “missing” at the cognitive level of those experts with different specialities as well as in the structure of provisions of help and assistance. • Divisions of labour between different sectors (women’s/mothers’ safety, child protection, treatment of batterers) is often synonymous with divided and disintegrated responses to needs of those facing danger of life. 2. Concerns about the near future: concerned impacts of international agreement on domestic legal reform • Following Japan’s ratification of the Hague Convention on Child Abduction in the early 2013, the Civil Code (family law) may be reformed so as to add joint custody as an alternative in the custody legislation. • By appealing to importance of parents-child attachment, even batterers may be awarded access and contact to children: fathers’ rights of visiting or contacting child(ren) tend to be more respected than children’s rights. • Family courts tend to neglect the link between DV and child abuse without witness of physical/visible damages to child and to place higher priority on parents-child attachment than risk of further abuse.

4. a long record of repeated failure in helping victims (and treating batterers adequately) of DV/abuse DV and child abuse usually stem from a same household, whereas they are often handled by various experts with different specialities and expertise (health and welfare services, police, courts, schools, etc.). DV in Japanese law is defined as “violence by one spouse against another spouse” (夫婦間暴力） Consultation services, help and supports for victims are made available in municipal women’s centers （女性相談） Child abuse is understood as “violence by adult(s) against child(ren)”: monitoring and child protection belong to municipal child welfare centers（児童相談） Disintegrated structure is one of the crucial factors of neglecting “child exposure to DV”.

5. concerned impacts of international agreement on domestic legal reform The Hague Convention on Child Abduction (The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction) In this convention DV is basically excluded from the basic framework of implementation. In fact, Guides to Good Practice published by the Hague Office strongly urges the contracting states to return as soon as possible the (escaped/abducted) children to the original place where they were unlawfully removed from. • About 70% of escaped parents are “mothers” seeking safety for themselves and their children across border, and very little is known about the aftermath of return of child under the Hague Convention (research report 2010 by Jeffrey L Edleson, et al.). • Various consequences of Japan’s ratification have not carefully been discussed in relation to domestic affairs in Japan where the best interest for child tends to be replaced by adults’ interest. International marriage couples are still small group in Japan, and therefore there is little public attention.) • Once the escape of battered mother with children from batterer is regarded to be incompatible with the ratification of the Hague Convention against child abduction, then it may have impact on domestic legal reforms. • In brief, to escape with children from batterer within Japan might be regarded as illegal action if the same rule against unlawful removal of children would be adapted to both international marriage and domestic marriage: the Japanese Government has not yet decided her position on this matter.

6. Divorces by mutual agreement　協議離婚(87.6% in 2010) Divorces by mutual intentions and agreement between couple This type shares approximately 90% of divorces in Japan. • Divorces by arbitration　調停離婚(9.9% in 2010) When both husband and wife intend to divorce but do not reach an agreement, they go to talk at domestic relations court (family court). Divorce is granted by conclusion of court arbitration. • Divorces by judgement 審判離婚 When arbitration does not reach conclusion, the court can replace it by judgement (nearly null) • Judicial divorces　判決離婚: 民法770条(ca. 1% in 2010) Divorces in accordance with the section 770 of the Civil Law (unfaithfulness, malicious abandonment, disappearance for more than 3 years, severe/unrecoverable mental illness, other serious difficulties for continuing marriage) Types of divorces in Japan 離婚類型

8. The vast majority of divorces in Japan take place through “mutual agreement” (協議), not through family courts (家庭裁判所). • The divorcing couple submit a form of divorce (離婚届) to municipal register. In the agreement it should explicitly be referred to post-divorce arrangements such as custody (childrearing) and family name of child (if child under 20 involved), shares of pensions and other economic properties, and so on. • Such arrangements may work well when flexibility is made the best use in case of “friendly separation”, because the third party is not committed to the couple’s decisions. • However, aftermath of this type of divorce has not well been monitored except such economic situations that can be surveyed through statistics on income levels of households. Divorces by mutual agreement　協議離婚

9. The current legal system in Japan awards only “single custody” for divorcing couple with children (aged under 20). • The Japanese Government is ratifying the Hague Convention on Child Abduction (scheduled to be early 2013), which has strong impact on the domestic reforms of family law (Civil Code). In particular, the Hague debate in Japan has been focusing on parental access/contact to child(ren). • Some legal experts (attorneys and researchers) and some politicians are keenly interested in introducing “joint custody” to Japan in accordance with promotion of parental access for post-divorce cases and with prevalence of joint custody in major industrialized countries. • Some researchers uncritically welcome the introduction of joint custody as modernization/westernization of Japanese legal system. • Fathers’ rights movement has become more active than before: divorced noncustodial fathers seek access/contact to child(ren) more often than earlier. Pros/cons on current custody system：single custody親権（監護）制度：単独親権・賛否 (1)

10. In contrast, there are critical and opposing views against the introduction of joint custody to Japan too: such voice has been addressed by some attorneys and researchers; and also those (Japanese) mothers who have returned to Japan with child(ren) in order to escape from abusive husbands/partners. (Yet, these returned mothers usually dare not to be interviewed by media, because they have to fear to be monitored by authority of the country they left with children.) • Implementations and challenges of joint custody in other societies are reported to Japan only limitedly. Pros/cons on current custody system：single custody親権（監護）制度：単独親権・賛否 (2)

11. Similarly to other societies, one parent families mostly mean those families of “mother and children” in Japan too. However, those divorced couples maintain sharing childcare especially when they have three or more children. Even without formally having joint custody as an alternative in legal system, de facto “joint” childrearing （実質的共同養育）is being carried out to some degree. (especially when the couple have more than two children) • On the other hand, due to socioeconomic factors related to “vicious circle of social exclusion” (社会的排除の悪循環), not a few of these “divorced mothers with children” tend to live vulnerable life in hardship caused by workfare-oriented social supports. • Their difficulties often remain less explicit, since this kind of divorce based on mutual agreement is up to personal decision but not judicial. • Less resources as disadvantage in custody disputes at court one-parent families 一人親家族

12. Various approaches to custody disputes • Legal aspect: debates on legal reform: • Attachment aspect: especially in debates and court cases on parental access/visit to children after divorce or separation, “attachment” is emphasized by the noncustodial parent. • PAS/PA discourse; J. Wallerstein, etc. (so popular despite systematic critique by J. Meier) • Child development aspect: proper assessment by experts (child psychiatrists) essential, but short in reliable professionals familiar with grave risks of “child exposure” to invisible violence when child is asked to meet noncustodial parent even unwillingly In addition, It is not simple to determine the concrete content of custody. (not only noncustodial parents access to child) By “custody”, it is referred to various elements ranging from economic factors (divisions of property of former household between couple, livelihood security for parent living with children, parents-child relationship, and so on)