JAPAN Law and Practice Contributed by: Kenji Yano, Tokyo Kokusai Partners Law Office
3. Child Abduction 3.1 Legality Illegality under the Criminal Code
In general, proceedings take around six months, but they may extend to about a year, and where the dis - pute is particularly contentious, they can take even longer. 2.3.10 Primary Caregivers Versus Left-Behind Parents There are no statutory provisions giving preference to either the primary caregivers or the left-behind par - ents. Where there is a primary caregiver, this is treated as one factor in assessing “past caregiving arrange - ments” and “parent–child relationship” under 2.3.1 Factors Determining an Application for Relocation . This factor tends to operate in favour of continuity of care by that parent where one parent has been the main caregiver, has provided appropriate care, and has formed an attachment with the child – particularly in the case of infants and very young children. That said, this remains only one factor in the over - all assessment, and the final determination is made based on a holistic consideration of all the relevant circumstances. 2.4 Relocation Within a Jurisdiction There are no differences in statutory provisions or procedures between international and domestic relo - cation. The factors set out in 2.3.1 Factors Deter- mining an Application for Relocation apply equally regardless of whether the relocation is international or domestic. However, for example, relocation to a nearby location and relocation abroad may naturally differ in terms of the extent to which the change in the child’s liv - ing environment affects the child, and in the extent to which contact with the non-residential parent is affected. To that extent, the substance of the deci - sion may differ.
Taking a person away for the purpose of transport - ing them to a foreign country by means of violence, intimidation, deception or enticement constitutes the offence of Kidnapping for Transportation Out Of Country (Criminal Code, Article 226), punishable by imprisonment for a definite term of not less than two years. The offence is complete once the person is taken with that purpose, even if the actual transfer abroad has not taken place (Supreme Court, 18 March 2003, Keishu Volume 57, No 3, p. 371). In addition, where a parent who is not actually caring for the child at the time removes the child following divorce or separation, this may constitute Kidnapping of Minors (Criminal Code, Article 224), punishable by imprisonment for not less than three months but not more than seven years (Supreme Court, 6 December 2005, Keishu Volume 59, No 10, p. 1901). Possible breach of civil obligations (2026 Amended Civil Code) Unilaterally relocating a child without just cause in a manner that obstructs the child’s contact with the oth - er parent may be regarded as a breach of the mutu - al obligation of respect and co-operation between spouses, newly established under the 2026 Amended Civil Code (Article 817-12). 3.2 Steps Taken to Return Abducted Children If Taken to a Hague Convention State If a child under the age of 16 has been wrongfully removed or retained from their state of habitual resi- dence, return proceedings are available under the Hague Child Abduction Convention. The Convention entered into force for Japan on 1 April 2014 and Japan enacted the Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (Act No 48 of 2013). Japan’s Central Authority is the Ministry of Foreign Affairs, to whom an application may be made for assistance in securing the return of the child to Japan.
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