A recent case has drawn international attention for the wrong reasons. Australian man, Scott McIntyre, was detained for 45 days in Tokyo, Japan for attempting to locate his children. Mr McIntyre was convicted of illegally entering his estranged in-laws’ apartment for trying to find out the whereabouts of his children after they were taken last May by their Japanese mother without, his consent. The District Court of Toyko has now sentenced Mr McIntrye to a six-month jail, with the sentenced suspended over three years. The case has shone a spotlight on child abduction and parental alienation problems internationally with Mr McIntrye expressing “All I and other parents want is for Japan to join the civilised world and institute a system of joint custody.”[1]
Whilst there is no definite rule in Australia as to who the children are to live with, the Courts must regard to the best interests of the child as a paramount consideration. [2] The paramount considerations in determining the best interests of the children are the benefit of the children having a meaningful relationship with both parents and the need to protect children from harm.[3]
Unlike Australia, Japan has a no joint-custody system after divorce and it is often the case that the children lose contact with the non-custodial parent despite Japan being a signatory to the United Nations Conventions on the Rights of the Child which states that children should have right to maintain bonds with both parents. [4] Furthermore, Japan is also a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. However, as with most International law treaties, it struggles to have binding power over sovereign states. It is apparent that Japan’s lack of enforcement of visitation rights is a problem and Mr McIntyre’s case is not the first time parental abduction and alienation has been in the Japanese Courts. Last year, fourteen parents had sued the Japenese government claiming damages of 9 million yen ($82,900), arguing that having no legal framework to ensure proper access to children was unconstitutional and in breach of their international obligations. Presiding Judge Tatsuro Maezawa stated the UN treaty was “merely an agreement to respect” those rights but had no binding power in this case and the government was not responsible for enforcing visitation rights. [5]
Japan is now under much international scrutiny with the world asking it to respect the right of children to see their parents and asking for the Japanese Courts to understand what is in the best interest of the children.
[1] https://www.bbc.com/news/world-asia-51129580
[2] Family Law Act (1975) (Cth) s60CA.
[3] Family Law Act (1975) (Cth) s60CC.
[4] United Nations Convention on the Rights of the Child (1989) Articles 9-3.
[5] Chang- Ran Kim, https://news.yahoo.com/parents-denied-visitation-rights-japan-131644394.html