An Australian mother has failed in her bid to sue the Japanese Government, after her husband abducted her two children. Catherine Henderson was one of 17 plaintiffs arguing Japan’s sole custody laws breached their constitutional rights.
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00:00 Japan only recognises sole custody when there is a marriage break up, unlike Australia which
00:08 has joint custody.
00:10 So that in itself is something that has caused a lot of heartache here in this country when
00:15 children are separated from one parent and they may not see them ever again.
00:20 Advocates for the laws say it's all about keeping stability in a child's life, but the
00:24 way the laws have been set up is that the parent who last physically had care of the
00:30 child will be awarded custody.
00:32 That's usually how it goes here.
00:33 And as I said, advocates for the current laws say it's about ensuring stability, but critics
00:38 say it incentivises abduction.
00:41 And this is what happened with Katherine Henderson, that her partner, her Japanese partner, took
00:45 the two children away from the house without her knowledge and he was therefore awarded
00:51 custody because by the time you get the courts involved, the courts will look at the situation
00:56 and say, well the parents were with the dad, so that's how it's going to stay.
01:00 So Katherine Henderson was one of 17 plaintiffs, the other being Japanese parents, grandparents
01:04 and even three children suing the Japanese government trying to get these laws changed.
01:10 They're saying that the current system breaches three areas of the constitution, that includes
01:14 the pursuit of happiness in Article 13, equality under the law in Article 14 and notably as
01:21 well Article 24, which is the equality of husband and wife.
01:27 Now as you mentioned earlier, this was unsuccessful.
01:30 The High Court judge struck it down, essentially saying that when it comes to visitation or
01:36 trying to get rights to your child, there are means that these parents should be exploring
01:41 and not taking it through the High Court.
01:43 If they won, they would have been awarded damages, but the intention here wasn't really
01:47 to get damages from the government per se.
01:50 It was more to apply pressure on the Japanese government to change these laws so that there
01:55 is joint custody when it's safe to do so.
01:58 Let's have a listen to Katherine Henderson at a press conference after today's ruling.
02:02 The Japanese government has failed to implement an appropriate and fair system for visitation
02:08 or parenting time and we the plaintiffs, fathers, mothers, grandparents and children have suffered.
02:15 So James, what are people like Katherine Henderson going to do next?
02:19 Should we expect an appeal?
02:21 Yeah, well as soon as this case ended today in the High Court, they announced they would
02:27 appeal.
02:28 Now the High Court in Japan sits below the Supreme Court, so unlike Australia, which
02:32 is the other way around, there is one more court they can go to.
02:35 So they are appealing, they announced that straight away, so they'll get those papers
02:38 lodged as soon as they can.
02:40 It is also worth noting that there is a review underway in Japan, which is one of the reasons
02:45 why this issue has popped up a fair bit this year.
02:48 The Japanese government is reviewing its sole custody laws and seeing whether or not there
02:52 is scope to have joint custody.
02:55 We expect that review to complete by the end of this year.
02:58 There might be some legislative reform next year, but obviously we don't know what that's
03:02 going to be.
03:03 Those people who have lost access to their kids and not seen them for years, who are
03:08 obviously quite heartbroken, a lot of them are quite pessimistic about this process,
03:13 really concerned that nothing substantive will be done.
03:15 We do know the Australian government has made a submission to the Japanese government, because
03:21 this concerns some 15 Australian parents and 22 children who are stuck here in Japan who
03:26 haven't seen their Australian parent.
03:29 Australia is essentially asking for Japan to follow Australia's lead in the United Nations
03:33 Convention of the Rights of the Child, which essentially argues that children should have
03:38 access to both parents.
03:39 It's in their interests when it's safe to do so.
03:42 [BLANK_AUDIO]