Revisions in Family Law in 2011

Some important legal revisions in the field of family law were made during the 177th ordinary Diet session. The revisions made were in the Procedure in Non-Contentious Matters Act, the Domestic Causes Inquiries Act, and matters pertaining to child abuse prevention in the Civil Code and the Child Welfare Act. Here, I would like to describe the revisions made to the Civil Code and the Child Welfare Act.

The Act for Partial Revision of the Civil Code was unanimously approved during the Lower House plenary meeting on April 28, 2011 and during the Upper House plenary meeting on May 27th. These revisions are centered on the Civil Code and the Child Welfare Act, so in order to study in depth the contents that were discussed, it is necessary to refer to the minutes of the legislative council of the Ministry of Justice, the report and minutes of The Seminar of the System of Parental Authority for Prevention of Child Abuse on which the discussions of the legislative council of the Ministry of Justice were based (disclosed on the webpage of Shojihomu Co., Ltd. at http://www.shojihomu.co.jp/jidou-gyakutai.html), the report submitted by the expert committee concerning the system of parental authority for the prevention of child abuse under the Child Division of the Social Security Council of the Ministry of Health, Labour and Welfare entitled The Scheme About the Protective Care of the Rights of Children, expert committee minutes, and committee deliberation minutes of both the Upper and Lower houses.

The contents of these revisions are too extensive for a point- by- point review, but there is a question whether the results of the revisions justify having made the revisions in the first place. Regardless of whether they were unanimously approved by the Diet (legislative body) or were made by experts gathered by the legislative council, they still need to be examined.

Issues over Excessive Limitation of Rights

One wonders if these revisions actually offered any solutions to the issues that were raised in the beginning.

The report on the seminar of the System of Parental Authority for the Prevention of Child Abuse has been written in a way that makes it difficult to read (understand) due to its composition. Several cases in the report are described as being difficult to address with conventional systems. For example, there are cases of medical neglect it must be noted that the biggest cases of medical neglect are those in which parents who take good care of their children and maintain a strong bond with their children, do not consent to medical intervention for reasons such as religious beliefs. (Depriving children of medical treatment in a household atmosphere where they are left unattended in every aspect of their lives is 'absolute neglect,' which is not limited to medical care), and those concerning children in orphanages, children with foster parents, or children under temporary custody where their custodial parents make unreasonable demands or do not consent to child welfare measures proposed by orphanage directors, foster parents, or child consultation center directors. In past cases of medical neglect, for example, claims for the forfeiture of parental authority were made for parents who did not consent to medical intervention. A motion was then made for the temporary suspension of the custodial parent's right to exercise parental authority along with the appointing of a surrogate so that the surrogate could consent to the necessary medical treatment. The claim for the forfeiture of parental authority was then dropped once the medical treatment was given. This was criticized as an excessive limitation of rights and a violation of the principle of proportionality (the principle of reasonableness), in that limitations of rights needed to be minimal within the necessary bounds. A temporary suspension system limited to two years, instead of the partial limiting of parental authority, has been incorporated into the revised laws in response to the raising of this issue (Professor Sue Kyo of Aoyama Gakuin University had already brought up the question previously of what differences in legal effects there were between the forfeiture of parental authority in Article 834 of the Civil Code and the suspension of parental authority in Part 2 of the same article). Specifying of the amount of time, however, does not change the fact that parental authority as a whole is limited. Nothing has changed in situations where rights have been excessively limited.

Legal Neglect

From the perspective of comparative law, the measures taken to avoid the limiting of rights, and to stage the limiting of parental rights, is a partial limiting of parental authority. This is how the limits of parental authority are consistent with how parental rights are stipulated individually in the Civil Code of Japan, as rights of residence, rights for disciplinary action, and rights for employment should be. This can also be applied to assets such as children's mobile phone subscriptions through the systematization of consent proxies (also known as consent supplements) by the courts. In this case, there is no need to limit parental authority significantly. These points were not adopted during the revisions, and if a reason was that the courts are not systematized or functioning in a proper way, this would mean that the right of access to the courts by the citizens of Japan may not be amply guaranteed. This is legal neglect.

Visitation after Separation/Divorce

The revisions of these laws were limited to issues concerning child abuse, but documents such as reports and minutes show that the revisions were also made regarding a certain important clause indirectly related to child abuse, based on a draft proposal outlining the Civil Code revision proposal submitted by the legislative council in 1996 (a full fifteen years ago) without a thorough discussion. This clause is the one concerning child custody between divorced parents in Article 766 of the Civil Code. Visitation, in particular, has become a major topic for discussion recently, but it is not enough for it to be simply added to the agenda as there has been no consideration of the accumulated discussions held over the past fifteen years, and there is no indication that it has already been thoroughly discussed. Furthermore, if no more revisions will be made for a long period of time because of the recency of prior revisions, then it may be that these revisions should have never been made in the first place.