Fight for custody in Japan: Mr. Echternach misses his children


In Japan, many foreigners are fighting for their children, who have been taken there by divorced or separated Japanese spouses. Those affected can expect little help from the Japanese judiciary system.

It was a carefree day in last May when Björn Echternach saw his two sons for the last time. "We had a lot of fun together," says the 40-year-old, "we played together on a playground in Berlin." For Karl, the three-year-old, the father had brought some salami with him as a snack, which "he loved beyond belief." For Johann, he was two years old, there were chicken nuggets.

After three hours in a parking lot, Echternach handed over the children back to his wife, a Japanese woman from whom he lived separately. "I was looking forward to the next time I would spend with the kids," says Echternach. It was agreed with the responsible youth welfare office when and how often he was allowed to see the two.
But there was no next time.

About two weeks later, Echternach entered the apartment of his wife near Berlin, accompanied by the police. The rooms were abandoned. The mother had disappeared with his sons without a trace. Apparently, she had left for Japan, her home country. Echternach suspects that she and the children live there with her parents, outside of Tokyo. An attempt by SPIEGEL to contact his wife via her parents was left unanswered.

Echternach works at a company for online marketing. At first glance, he lives a normal life, but inside he is a broken man. When he talks about his children, he keeps fighting back tears. He says, "The two mean everything to me, I need them, and they need me, their father."

The few things he has left of his sons are a few photos. Moreover, it is of little use for Echternach that, by an order of 20 September 2017, the District Court of Nauen awarded him sole custody of his sons at the first instance. The court certified that he "represents an important resource in the context of the children's lives.” The mother, on the other hand, lacked the ability to "accept and respect the children's bond to the father.”

Despite the ruling, against which the mother has filed an appeal, it is questionable whether Echternach will ever see Karl and Johann again before their age of majority. In any case, he has to prepare for a lengthy and expensive legal battle in Japan. He has already made requests for assistance to the Federal Office of Justice in Bonn and to the Japanese Ministry of Foreign Affairs in Tokyo. He is currently considering how he should come up with the funds for the high legal fees in Japan.

The Japanese legal system is often radically different from Western values and customs. Dozens of overseas parents are currently fighting in court to get their children back, who were often illegally brought to Japan by divorced or separated Japanese spouses.

"It is not enough to adapt laws"

In 2014, Japan joined the Hague Child Abduction Convention after many years of hesitation. The Convention intends to protect children who have been illegally transferred to another country. However, even if Japanese judges rule in line with the Convention that children must be transferred back to their foreign father or mother, those decisions are often not enforceable in the country's legal practice.

Japan has yet to adapt its laws to the commitments it has made under the Hague Convention, says Mikiko Otani, a lawyer in Tokyo. She is a member of the United Nations Committee on the Rights of the Child. "However, it is not enough to adapt laws, it is also necessary that the thinking in society changes."

And that can take a long time. The lawyer points to significant cultural obstacles encountered by foreigners in legal battles in Japan. "It is a fact that foreigners often feel disadvantaged and discriminated against compared to Japanese parents."


First facts are created, then judges give their blessing

The fact that marriages break up and partners then often bitterly fight over the children is a sad part of everyday life worldwide. In many countries, however, it is customary that arrangements are made, with the help of courts and authorities, to regulate and, if necessary, enforce the rights for visitation and access of both parents. In Japan, however, courts often award custody of the children to those parents who have taken them unilaterally or even illegally, and in reality these are often their mothers.

Japanese judges often give their blessing for such newly created facts retrospectively. In such cases, they refer to the “principle of continuity," which is supposed to be in the best interest of the child. [“Principle of continuity” means the child remains with the parent who abducted that child upon a ruling divorce.] This legal practice is also based on a traditional understanding of roles, where primarily mothers are responsible for raising children.

The Japanese Family Register further manifests the separation: if parents get divorced, the children are transferred to the registry of the parent who has custody. With this, the separated parent usually loses any access to the children.

The result: Many children from failed marriages grow up in Japan with only one parent, without any contact with the other. It is estimated that there are three million affected children. The mothers - who usually get sole custody - often prevent interaction between fathers and their children even if it is ordered by court.

"The judge does not seem to care"

Klaus Schmidt* [pseudonym] works as a financial expert in Frankfurt, he is one of the affected fathers as well. In December 2015, his Japanese wife took their daughter--she was one and a half at that time--to a home country visit at her parents’ in western Japan. To the dismay of the father, the daughter never returned to Germany from that trip.

"I was originally prepared to accept an arrangement where my daughter stays in Japan as long as I have visitation rights," says Schmidt. He thought that this would be in the best interest of the child. After a court agreement, he was given the right to speak with his daughter for 15 minutes each week via Skype. That is an unusually high frequency for Japanese standards. But these appointments took place only five times, says Schmidt. They only lasted a few seconds each time and were stopped abruptly each time by the mother. "Any further appointments were simply canceled by her."

Currently, a Japanese court is proceeding with the couple's divorce. Due to the course of the procedure so far, Schmidt fears that his wife will be granted sole custody over their daughter. He says, "The judge does not seem to care that the interaction between me and my daughter does not take place."

Similar nightmares are currently experienced by two Italian fathers who live and work in Tokyo. They have come to a meeting with SPIEGEL in a restaurant in the business district of Shinjuku. Both are still married, both of their Japanese wives moved back home to their parents’ place away from Tokyo with their small children. One of the Italian fathers, who works for a computer game company, reports that he is only allowed to meet his son and daughter while his Japanese mother-in-law is present with them.

No contact whatsoever
In the same manner, the other father was only allowed to see his children under supervision--in a bare conference room of a Japanese law firm office. He shows a video on his smartphone. It shows him playing with his children on the floor in between the conference tables.

The two recently sent a letter to Italy's President Sergio Mattarella with five other affected compatriots. In it they demand that their home country should start a dialogue with Japan about the fate of their children. Echternach also hopes that the German government will exert diplomatic pressure so that Japan finally adapts its legal practice to the provisions of the Hague Treaty.

The desperate father fears that his children will be alienated from him the longer they live apart from him. Through the International Social Service, a non-governmental organization, he has attempted to have indirect contact with his wife. He asked her to allow that he can stay in touch with his sons, at least through Skype. He would also like to send gifts to them. He did not receive an answer to his letter.

La Cooperación jurídica internacional y el efecto devolutivo del recurso de apelación en los procesos de restitución internacional de menores

Autores: Tagle, Graciela - Mastrángelo, Fabio  Publicado en: La Ley Online;  Cita Online: AP/DOC/524/2018 Sumario: I. Introdu...