Demand for rescission of a decision of the local authorities to admit a child into a child welfare facility
Tokyo District Court
July 11, 2008
Article 28 of the Child Welfare Act (promulgated taking into account the CRC) addresses protection of children from abuse.
Article 27 of the Child Welfare Act
Article 820 of the Civil Code (parental rights and responsibilities to care for and educate the child “to serve the best interest of the child”).
On June 16, 2007, in response to reports from a child’s elementary school that the school had reasons to believe that the child was being physically abused, the Tokyo child welfare department decided to take custody of the child and admit the child into a welfare facility. The child's father was notified of this decision two days later, but was not informed of the name of the facility to which his son was to be admitted. The father denied all allegations of abuse and sought a court order voiding the local authorities’ decision to take custody of the child. The father also asserted that the local authority’s decision not to inform him of the specific name of the facility was illegal.
Issue and resolution:
Violence against children; separation from parents. The Court found that the Tokyo child welfare department had properly exercised its authority pursuant to a determination of the family court that it would be in the best interests of the child to be admitted to a child welfare facility. The Court further found that the decision not to inform the father of the name of the facility to which the child was to be admitted did not violate any law or obligations under any convention, as the Tokyo welfare department did so in the best interest of the child.
Separating children from their parents and temporarily restricting the parents’ right to care for their child by denying parents access to the child does not necessarily breach the CRC. Article 9 -1 of the CRC contains an exception which provides that that competent authorities may separate a child from his or her parents if such separation is necessary for the best interests of the child. Article 9-3 of the CRC contains an exception to the rule that States parties must respect the rights of children who are separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis where that contact would be contrary to the child’s best interests. The Tokyo welfare department’s decision to take custody of the child and admit the child into a welfare facility is in line with the responsibility of the government under Article 19-1 of the CRC to protect children from all forms of physical or mental violence, injury or abuse while in the care of parents.
Excerpts citing CRC and other relevant human rights instruments
as translated by CRIN:
3-2 (1) “…furthermore, with respect to the Convention on the Rights of the Child, Article 9-1 provides as an exception to the obligations of state parties to ensure that a child shall not be separated from his or her parents against their will, circumstances “when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child”. Article 9-3 of the CRC further provides as an exception to the obligations of the states parties to respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, if it is contrary to the child's best interests to do so. Article 19-1 of the CRC provides that States parties must take “all appropriate legislative, administrative, social and educational measures” to protect the child from abuse and other forms of maltreatment while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
The determination to admit the child in a child welfare facility for children with mental disabilities was made in line with the principle of Article 19-1, pursuant to the rules and procedures of Article 28 of the Child Welfare Act, by the director of the Tokyo child welfare department as the competent authority, in accordance with the determination of the family court, taking into account the best interest of the child….”
CRIN believes this decision is consistent with the CRC in that states have an obligation under Article 19 of the Convention to protect children from all forms of violence, including physical abuse in the home. Nevertheless, removing children from the home must not be taken lightly. Separating children from their parents in instances of abuse may be necessary in the best interests of the child, but as envisioned by Article 9, all interested parties must have an opportunity to participate in proceedings to determine whether a child should be removed from the home. Even where this is deemed necessary, children do generally have the right to maintain personal relations and direct contact with their parents.
2007 (Gyo-U) 745
Link to Full Judgment:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.