Linkiesta January 28, 2018
This is the Italian Linkiesta article and an English translation.
Japan: separations and disputed children, the case of Gianluca Sarais
January 28, 2018
By Stefania Viti
I decided to dedicate this first post of 2018 giving voice to the request for help from a group of Italian fathers living in Japan who, after separating from their Japanese wife, and despite having the right, can no longer meet their children. In Japan, the issue of child abduction to a parent at the time of separation is a very sensitive and complex issue, little known abroad. In the next months, I will follow the developments of the story of Gianluca Sarais, a 43-year-old Italian currently living in Japan and married to a Japanese woman who, after leaving home, has no longer allowed Gianluca to see their baby, Leonardo Rui. Gianluca Sarais, in fact, despite having the right, has not seen his son since September 5, 2015, when he met him for fifty-five minutes in a protected structure together with volunteers.
The story of Gianluca Sarais who has not seen his Italian-Japanese son for over two years
The legal battle over the separation between Gianluca Sarais and his wife began about three years ago, and here I summarize it briefly. After the birth of her son Leonardo Rui, the wife of Gianluca from Tokyo returned to live with her parents in Hokkaido, in the north of Japan, the family's homeland. The mother-in-law had already lived for two months in Tokyo with Gianluca and his wife, and the transfer was justified by the fact that it would be easier for his mother-in-law to help her daughter at home, rather than in Tokyo, in the early post-partum period. After spending some time in Hokkaido, his wife decided to stay there, not to return to Tokyo, claiming that this is a healthier and more suitable environment for her son's growth. To stay close to the family, Gianluca also left Tokyo, home and work, and moved to live in Hokkaido. There he found a new job and set up his home to welcome his wife and son. He also bought a semi-new car, the one his wife wanted. A few days before the transfer of his wife to their new home, the she asked for a divorce, and according to Gianluca, forbade him to see his son saying these words: "go back to Italy and forget us two." Gianluca saw the world collapsing on him. Thus began a long legal battle that spread over three levels; one for the right of the child to be able to see Gianluca; one for the custody of the child; and one for the separation. The son, in fact, bears the surname Sarais, since by choice the couple had decided to take the surname of Gianluca, including his wife. In Japan, this usually does not happen and the children of mixed couples generally take the surname of the Japanese spouse. With the divorce, however, the wife would be able to change her surname to her maiden name and give her child her surname. In this way, Gianluca would lose all rights over the child. In fact, according to Japanese law, at the time of the separation of two spouses, the right of joint or shared custody does not exist, and parental authority remains only with one of the two who, if desired, can request to change the surname of the child. To date, Gianluca does not know the address of his wife and son, although he is a member of the AIRE (Registry of Italians Residing Abroad).
Although the legal battles are still ongoing, the process is now in an advanced state. In fact, although until today Gianluca has won all the degrees of judgment and has been acquitted of all the accusations made by his wife against him, he cannot exercise the right to see his son. "Regarding the visits to my son," explained Gianluca, "both in the arbitration and in the following trial proceedings, the judge ordered a visitation between me and my son once a month for an hour. In Japan, this is the practice, but my wife denied me this right, so I sued her. We are in Japan, and we must accept the laws, but certainly, we cannot fail to notice how this is humanly unjust! This is a judicial practice that goes against, in fact, the sacrosanct right of children to be able to see their parents without limitations. The parent should remain the parent in any case! My wife has even come to deny me this single hour per month, despite two court rulings, so I opened a new judicial procedure, so that the court orders her to comply with the sentence," Gianluca explained. After the ordinary cases, the matter had passed into the hands of the High Court of Sapporo, which confirmed the previous ruling and the right of the son to see Gianluca on December 22nd. Following this ruling, Gianluca's wife appealed to the Tokyo Supreme Court, whose ruling, when it arrives, will be final. "Having won at the High Court of Sapporo was a double victory for me," explained Gianluca, "because the Court has accused my wife of abandoning the marital roof and has recognized that I have the right to visit my son once a month. My wife, in short, would have the obligation to let me see my son, but even until today she did not.” In fact, according to Sarais, despite the ruling even in court proceedings, the wife has verbally opposed the judge and said that she has no intention of showing his son to Gianluca because the child has no need of the father, claiming that Gianluca is not necessary for the child's happiness and for his growth! So, even though the verdict of the High Court is in favor of Gianluca, the lady has resorted to another court, the Supreme Court of Tokyo, initiating a new trial and blocking, in fact, the possibility for the son and Gianluca to meet. "It is the last appeal she can make," explains Gianluca. However, now the point is strategic because if my wife manages to overcome the three years of separation, she will get a new cause for divorce, and in doing so will cut Gianluca out of all the rights to see his child. In short, it will activate a sort of "prescription" of the right to paternity. Gianluca confirms that he is fulfilling all his duties as a father and that he pays the child maintenance allowance on a monthly and regular basis. "My son, when he grows up, will have to know that I did everything I could for him," explains Gianluca.
The Japanese law and the international agreements
We spoke with Giorgio Fabio Colombo, an expert of the matter, a lawyer of the Court of Milan, and associate professor of comparative law at the University of Nagoya.
Q: How is it legally possible that, in spite of the verdict handed down that gave the right to Gianluca Sarais, in fact he is not allowed, in an arbitrary way, to see his son?
A: It is well known that, regarding family law decisions in Japan, it is largely entrusted to a voluntary enforcement, without which the instruments for obtaining a forced execution are few, and moreover, used with reticence on the part of the Japanese authorities. However, not having read the procedural documents of this specific case, I am not entirely sure of the precise reasons.
Q: How does the Japanese law behave in case of separation with children? We know that Japanese legislation is different from ours and that in the case of minors the "principle of continuity" prevails. Can you explain it to us?
A: Japan is a peculiarity on the international scene. It is, in fact, one of the few countries that, in the event of divorce, gives the exclusive custody of minor children to a single parent (statistically speaking, almost always the mother). This is in contrast with the rest of the world, where shared custody is considered the best way to ensure the "best interest of the child.” Although Japanese law also places the "best interest of the child" as a value to be protected, the interpretation of the Japanese courts is to ensure the stability of everyday life, the so-called "principle of continuity;" the fact of having to move from home of one parent to that of the other, or even that of receiving frequent visits by the non-custodial parent is seen as an element of perturbation or disturbance in the child’s life.
Q: In 2014, Japan signed the Hague Convention regulating the protection of children under the age of 16. What effect does this ratification have in situations such as the removal of minors from one of the parents?
A: Although Japan has - finally - signed the Hague Convention on the civil effects of international child abduction, unfortunately this instrument cannot be used in cases like that of Mr. Sarais. This is because one of the conditions for the application of the Convention is precisely an "international" abduction, that is, the movement of the child - against the will of a parent - from one country to another. In this case, although an abduction has taken place, it is internal to Japan, and therefore, the remedies available are those, not very effective, offered by Japanese law.
Q: Can we speak, at an international level, about the violation of the human rights of minors?
A: It is a very debated and complex subject. Certainly, Japan is the constant object of serious criticism from the international community and from the international organizations responsible for the protection of minors precisely because of its anomalous family law, and for the ease with which it accepts situations of irregularity in family matters. The fact that a child loses all contact with a parent as a result of divorce is a traumatic and undesirable situation, to which the right should be restored.
Q: What can be done, then, so that these fathers can enjoy the right to see their children and children to have a father?
A: Although the legal instruments available are few and often ineffective, the family court way is currently the only one possible. If, following a judicial separation, the children are entrusted to the father, the mother cannot oppose by the resistance she is able to put in place on the trial grounds, or even in the factual situation in which the parents are physically separated but do not have active procedures for divorce pending. Moreover, the pressure of international institutions has already led to some important results (for example the ratification of the Hague Convention, which had been waiting for decades). The hope is that Japanese law will align with international standards as soon as possible.
The official position of our institutions
The Italian Embassy in Tokyo, which for many years has been following and assisting fellow citizens who experience problems related to family law in Japan, has promoted an initiative together with the EU calling on the Ambassadors of the Member States that have citizens with family law problems in Japan. The Ambassadors of the EU countries expressed total understanding for the Italian initiative and agreed on the need to prepare and, as soon as possible, carry out a joint awareness-raising campaign in coordination with the Bulgarian Presidency and the EU Delegation towards the Japanese authorities with the objective of obtaining the enforcement of the court rulings.
The Italian Ambassador in Tokyo, Giorgio Starace, follows the issue personally and recently received some parents residing in Tokyo to better understand their situation and the stages of legal progress. The Embassy is, in fact, aware of the fact that some of these cases have reached the highest level of judgment, and some rulings related to custody or visitation rights have not been applied, due to the opposition of the counterpart. For this reason, the issue has been raised during several political encounters, also on a bilateral level between representatives of the Italian and Japanese government.
The situation of the Italian fathers separated, in Japan
There are at least seven of our compatriots who currently live in a situation similar to that of Gianluca, for a total of nine children involved. To try and unblock the situation, they have come together and are trying to make a common front. "We are trying to do everything possible so that we know in Italy and abroad what is the condition of us separated fathers here in Japan and of our children, also Italian citizens who are not even allowed to maintain the relationship with our language and culture, an essential part of their identity. The Kizuna association (editor's note NPO Kizuna Child-Parent Reunion) has done a lot on the US front, because the parents of American nationality are the greatest number, but at the same time it allowed us to get to know each other and to join forces. In our small way, we contacted the Ministry of Foreign Affairs through the Italian Embassy in Tokyo, we wrote to the President of the Republic and several politicians and contacted many journalists to raise awareness of the Italian press on this problem so far unknown in Italy. From Italy, we have found a lot of solidarity, and we take this opportunity to thank the staff of the Embassy and the Ministry of Foreign Affairs who are always kindly at our disposal for any updates. Unfortunately, however, in Japan we have turned to police, social services, politicians and any kind of humanitarian association, but although they are all aware of the problem, the only one who tried to help us was Diet member Kenta Matsunami, who dealt with the theme directly with the highest officials of Japan, but without getting any targeted response to solve the problem.” Among the major Italian newspapers that have dealt with the theme of abducted minors, we find La Stampa, Corriere della Sera, and Sky TG24, thanks to the connection from Tokyo of the correspondent Pio d'Emilia.
Data on minors taken from a parent in Japan
According to the NPO Kizuna Child-Parent Reunion, which fights for the rights of minors and their separated parents, there are about 3 million children who, in the last twenty years, have not had the chance to meet one of the parents due to of the unilateral decision of the parent who took away the child. At the same time there are about 3 million adults, parents, who were unilaterally denied the opportunity to meet their child. In total, to date, between children and parents, there are therefore about 6 million people who are denied the right to enjoy the support of both parents and duty to exercise parental authority. Furthermore, according to an article published on the website of Diet member Okiharu Yasuoka on November 27, 2014, about 150,000 children are denied the opportunity to see their separated parent every year. Yasuoka was twice Japanese Government Justice Minister and Chairman of the 親子 断絶 防止 法 Committee (Oyako danzetsu bōshi-hō - Parental and Child Discontinuity Prevention Act). The problem of children stolen from a parent mainly affects fathers, both Japanese and foreign. In Japan, 85% of fathers lose custody at the time of divorce, and more than half of divorced fathers lose all contact with their children. We speak of more than 135,000 fathers each year (NPO data Kizuna Child-Parent Reunion). Gianluca concludes: "at the beginning I was afraid of being penalized for being a foreigner, but it was not so. During these years of battle, I met many fathers, also Japanese, in the same situation as me.” In this 2013 video, Mr. Yasuyuki Watanabe, an official of the Ministry of the Interior, explains his personal situation as a father whose daughter has been taken away. From 2013 to today, little or nothing has changed.