Key words: child abuse, child support, child welfare, children, Civil Code, divorce, family courts, laws, parental authority, Yoshito Abe
1. Introduction
Silver, or gold, or jade, what are they?
Never could they be compared to one's precious child.
Yamanoue no Okura (660-733)
in Manyoshu (a collection of poems in the eighth century)
It was 1300 years ago that a Japanese poet Yamanoue no Okura wrote the above well-known poem, expressing unconditional parental love and devotion to a child. This sentiment still seems to remain unchanged in today's Japan. Most children are expected to grow up receiving such parental love, and become mature and responsible members of society.
However, the present situation is, regrettably, that there are also numbers of children living an unhappy life under anything but ideal circumstances, rarely receiving the care they need from parents, or being negatively affected by their parents' unstable lives.
Family lifestyles as well as parent-child relationships are essentially considered to influence the lives of children who are still dependent on their parents; nevertheless, Japanese law gives, in principle, under the policy of family privacy, considerable power and autonomy to families and parents regarding lifestyles and circumstances. Meanwhile, it is stated that a basic legal framework for parental relations is provided under the law and that a family court may, acting in a custodial capacity, intervene and take decisions on material issues regarding parent-child relationships that cannot be solved within a family.
In this capacity, therefore, I would like to present an overview of the current legal framework for children and their parents, as well as the involvement of family courts to resolve the issues of children under troubled families.
2. Overview of Parent-Child Legal Relationships (Parental Authority)
The parent-child legal relationship is regulated by the Civil Code of Japan. The Code primarily states that a child who has not attained the age of majority should be subject to the parental authority of his/her parents (Article 818-1), and a person who exercises such parental authority holds the right and bears the duty to care for and educate the child (Article 820 "Right and Duty of Care and Education". The person with parental authority also administers the child's property and represents the child in any legal juristic acts with respect to the property, such as buying and selling of the property (Article 824 "Property Administration Right".
In this way, minor children can be protected by the parents having parental authority and receive the care and education they need. Parental authority over a child is exercised jointly by his/her parents as long as they are in a marital relationship (Article 818-3).
3. Child Issues in the Case of Divorce
When parents get divorced, there are things to be addressed; if they have a child who is a minor, making a decision on which parent is given parental authority becomes the biggest issue. Legal frameworks vary between countries; some countries award joint legal custody to both parents after a divorce, while the Japanese Civil Code allows only one parent to continue the exercise of parental authority to care for and educate his/her child (Article 819). Now I will move on to legal issues on divorce and parental authority.
a. Attribution of Parental Authority
If parents divorce by agreement, a decision on which parent is given parental authority over their child will be made upon mutual agreement (Article 819-1). In the case of a divorce by mediation in a family court, a decision on parental authority will be made through mediation. In the case of a divorce by judgment of a family court, the decision will then be made by the court (Article 819-2).
More precisely, in the case of a divorce by mediation or judgment of a family court, in general, a family court probation officer who is educated in psychology and human sciences, will conduct an investigation of the family in question. According to the clerk's report, a decision regarding parental authority will be made. The purpose of the investigation is to determine which parent is more suitable to have parental authority, i.e., to determine with which parent a child should live in the best interest of the child. Therefore, careful examination is necessary to assess the strength of the relationship between the child and each parent, their lifestyle stability and capability to ensure the child's well-being, etc. For this reason, it is essential for the clerk to visit the child's home, talk to the child, and let the child play with his/her parents, while observing the actual living conditions and behaviors of the child, as well as the psychological distance between the parents and child. Sometimes the investigation is conducted, as the case may be, in a way such as to examine the living conditions of a parent not residing with his/her child, or arrange a meeting for such parent with the child in the playroom of a family court, thus allowing their relationship to be observed closely. At the end of these investigations, the clerk will submit a report summarizing the findings to a family court as the basis for making a judicial decision.
b. Child Support and Visitation Rights
Not only the above divorce cases involving a family court, but also in the case of a divorce by mutual agreement, if parents cannot amicably resolve issues regarding child support payments, visitation rights of the non-custodial parent, etc., such disputes will be settled by mediation or judicial decisions of a family court (in a closed trial). For matters, in particular, that may have a material impact on a child's emotional and mental state, such as decisions on visitation with his/her parent, a family court probation officer will examine the child's emotional needs through direct interviews with the child, diagnostic assessments in order to understand the child's inner thoughts that cannot be expressed verbally, or trial visitation with his/her parent within the playroom of a family court. Then, the clerk will submit a report to a family court to be used as the basis for mediation and judicial decisions.
4. Child Abuse
Child abuse is one of the most critical social issues facing Japan today. It is a challenge and responsibility of our entire society to prevent child abuse as well as to save abused children and protect them from further abuse. To address abuse problems, I believe that adults in various positions should courageously be involved in every aspect of the child's development process with the greatest care and attention. With this in mind, I will briefly outline the legal frameworks in place to protect children from abuse and how family courts are involved within such frameworks.
a. Court's Approval to Admit Abused Children into Child Welfare Facilities
The first priority in protecting abused children is to rescue them from the abusive situations they are in. One of the legal measures for this purpose is to request a family court's approval to admit abused children into child welfare facilities, which is stated in Article 28 of the Child Welfare Act of Japan. As I have mentioned above, a parent who has parental authority holds the right and bears the duty to care for and educate his/her child. To separate a child from his/her abusive parent, approval of the parent is needed. However, if it becomes impossible to protect the child due to disapproval of the parent, a measure will be taken upon approval of a family court to admit the child into a facility. In this case, too, a family court probation officer will investigate the actual conditions of the child's life.
b. Forfeiture of Parental Authority
Another legal measure is forfeiture of parental authority. When a parent abuses his/her parental authority or otherwise, a family court may, upon request, make a ruling that strips the parent of parental authority (Article 834 of the Civil Code). Consequently, if there is no person who has parental authority, the guardian of a minor will exercise such authority instead (Articles 838-1 and 840). In the event that the cause of forfeiture is later dissolved, a family court may, upon request, rescind a ruling of forfeiture of parental authority (Article 836) and the father or mother will resume parental authority.
However, there is some criticism that such a ruling has too strong an impact; hence it is not easily exercisable. The legislative council of the Ministry of Justice and other institutions are currently discussing the possibility of introducing a new measure that partially restricts parental authority. Therefore, we will be keeping an eye on how this situation develops.
Conclusion
Today's children are tomorrow's society. To ensure the sound development of children, I believe, a strong, loving relationship between parents and children is essential. In order to maintain such an ideal relationship, society is required to support families in various ways, and family courts, in this regard, are expected to fulfill their roles and responsibilities as part of judicial functions.
Comment from Dr. Noboru Kobayashi, CRN Director
I had the honor to read the article "Children and Parents in Japanese Law and Family Courts" written by Mr. Abe Yoshito, President of the Tokyo High Court.
In this article, he describes how the Japanese law defines and deals with the issues of parental authority under troubled family relationships such as parents' divorce, child abuse, etc. I have learned a great deal from his article: this is filled with his loving-kindness and compassion towards children.
However, I still wish to learn more about this field, such as the current status of children's rights relating to parental authority. Japan has ratified the United Nations Convention on the Rights of the Child which was first adopted in 1989, and I suppose there should be many issues to be addressed, even just from the standpoint of conventional legal theories. At one time I was involved with the International Pediatric Association (IPA) as director during the 1970s and 1980s. The IPA executive committee had several presentations at that time, as it worked jointly with the UN to define the concept of Children's Rights, and I found as a pediatrician there were many things I should learn. I am hoping to have another opportunity in the near future to talk with Mr. Abe, and discuss with him his views on how Japanese legal scholars consider the above issues.
* The original essay was written in Japanese and published on CRN Japan site on Jan.28, 2011.
