Family Law in a Family Nation
(manuscript in preparation)
In the 2013 documentary film From the Shadows, Regan, a white American mother, goes to a Japanese police station to report the kidnapping of her two children. Regan knows that the children were first taken by her Japanese husband, Shuta, but are now supposedly being held by his mother, the children’s grandmother. Having tried to negotiate with Shuta, who claims not to know where the children are being kept, Regan goes to the police directly to seek help. Through a translator, the police apologize and explain: “I’m sorry, we don’t consider your case an abduction, or even a crime. We consider it a family matter, and we can’t intervene in a family matter.” The translator summarizes, “If [the kidnapper] is someone in your family, the police want you to take care of it yourselves and they don’t get involved in that.” In this case, as the police explain, the children’s abduction is not a crime not because of the action taken but because of the relationship between perpetrator and victims. Parents cannot abduct their own children.
Parental abduction within and to Japan occurs with some frequency, and has drawn growing political and media attention in recent years. These highly controversial cases involve one parent taking their own child and restricting access to the other “left-behind” parent, often for many years. These can be international abductions, involving one parent taking their child over international borders into Japan, or domestic abductions, involving one parent removing their child from the other parent entirely within Japan. Even if the child’s whereabouts are clear, Japanese police and law enforcement agents rarely punish the taking parent, or assist in returning the child. In practical terms, any child brought into Japan or moved within Japan can be lost to the parent who doesn’t hold de facto custody, regardless of legal agreements reached in other nations or, to large degree, even legal agreements reached within the Japanese court system itself. Concerning parental abduction, Japanese law enforcement is notably unable or unwilling to provide assistance.
In a shift in policy, as of April 2014, the Japanese government acceded to the standard international agreement addressing only international abductions. Since 1983, The Hague Convention on the Civil Aspects of International Child Abduction provides a mechanism to return any children moved across international borders. Signatory nations to this Convention promise to use national and local law enforcement to find any abducted child and, after a hearing with the local authority, return the child to their “habitual place of residence,” where they lived before their abduction. (What counts as habitual place of residence, and how long it takes to make a place “habitual” are some of the contested questions in extant cases.) The Hague Convention does not determine guilt, innocence, or custody; it is designed to quickly remove an abducted child from the location to which they’ve been abducted, and returns that child to the place of habitual residence, which then becomes the venue for future cases and custody determinations. When the Convention was designed and written in the late 1970s, the authors imagined a typical abduction would involve a non-custodial father taking a child from a custodial mother. In Japan and other contexts, many contemporary Hague cases involve what might be seen as an inverse: custodial mothers fleeing with children from situations they describe as violent. In the original writing, abductors were expected to be the bad guys, which has made it harder for the Convention’s mechanisms to respond to cases in which abducting mothers claim they are fleeing violent homes. Since Japan acceded on April 1, 2014, there have been 24 Hague cases filed involving children taken to or from Japan.
Examining Japanese family law contextualized within international family law, Family Law in a Family Nation argues that the centrality of “family” as an organizing symbol for the Japanese nation, and the ensuing legal system that privileges families as unimpeachably private space, creates fundamental lacunae for people seeking assistance in family disputes. Since Japan’s creation as a “modern” nation in 1868, families, both literal and symbolic, have been at the center of the nation. Amidst discourse describing Japan as a “family nation” (kazoku kokka), popular ideologies suggest the national polity as a large family at the same time that laws rendered only certain family forms acceptable. Explicitly articulating such ideals, Japanese prosecutors told me that they don’t want to use law to solve “family problems” (kazoku mondai) because the family is too important and too private. This book explodes the assumptions within such statements, asking what law can do for people struggling with familial conflicts, and how families respond to disputes when law is an unhelpful mechanism. Using parental abduction cases as a starting point, Family Law in a Family Nation theorizes the relationship between law and family within and beyond Japan, contributing to scholarship in anthropology, gender studies, legal studies.
The book is based on 12 months of ethnographic fieldwork with Japanese and non-Japanese parents, activists, formerly abducted children, politicians, prosecutors, diplomats, and legal scholars. Funded by the Abe Foundation, the primary fieldwork was conducted during the year the Hague Convention went into effect, enabling me to witness a pivotal moment of transition.
The image at the top comes from Shin Noguchi's powerful series The World the Children Made.