Access to the Child in Cross-Border Family Separation

Abstract

The paper examines access to the child in cases of cross-border family separation. When Western foreign law applies to access, Japanese family courts grant frequent access to the non-custodial parent pursuant to the standards of the governing substantive law. Yet insofar as Japanese law applies to access, it is a challenge whether and to what extent access can be granted. Because of the “clean-break” principle and a lack of joint parental authority or custody after divorce, it is only a recent development in Japan that granting access and enforcing access orders are viewed more favorably in practice. However, due to the concern over exacerbating problematic family relationships and putting the child under pressure or danger, family courts are still cautious in granting access in high-conflict cases. The Subcommittee on Family Law established by the Legislative Council of the Ministry of Justice is now deliberating on possible statutory reforms. The envisaged statutory amendment will require in particular redefining the legal nature of access, reflecting on the appropriateness and frequency of access, and contemplating possible measures to assist the parents in amicably carrying out access after separation or divorce. In the on-going discussion on access, one should bear in mind that Japan needs to abide by its obligations under the United Nations Convention on the Rights of the Child and Hague Child Abduction Convention, which entail ensuring that the child maintains personal relations and direct contact with both parents on a regular basis.