[Theory] Comparative Family Law-1

Introduction

In this and following blogs, I would explore the family law with a comparative and theoretical perspective.

Family law is important as well as law related to economic activities. There would be no agreed definition of what ‘family’ and ‘family law’ are. It would be quite difficult to unify all business laws, let alone family law. Indeed, I do not think it (unifying family law) has to be done. However, everyone probably would agree that no one is an island. Some of the purposes of (modern) family law would be common; ensuring no one is left alone in society and everyone should be treated with fairness, transparency and respect. No family law in the world would be perfect. To create a better law and society, we all need to be working together, sharing and learning from each other.

Similarity and Differences in Family Law

There are many writings on family law; however, there is not really much about Japanese family law in English. Most Japanese scholars write their papers in Japanese. Japanese courts write their judgements in Japanese. They are rarely translated into English or other languages. Some overseas comments on Japanese law sometimes include some misleading ones. This is one of the reasons that I would write this blog in English. In fact, in my view, as with family law in different jurisdictions, Japanese family law can also be referred to as a positive example in some respects.

Some might expect that family law in different countries would have little in common. It would be not correct. There are some (many) similarities particularly in fundamental principles in many aspects, although there are some differences in their interpretation. One of the examples is what a principle in child disputes in Japan, England and Wales and Australia is;

  • The ‘child’s interests’ shall be considered with ‘the highest priority’. (Civil Code Article 766 para1 [Japan])
  • The ‘child’s welfare’ shall be ‘the court’s paramount consideration’. (Children Act 1989 Section 1 [England and Wales])
  • A court must regard the ‘best interests of the child’ as the ‘paramount consideration’. (Family Law Act 1975 60CA [Australia])

Traditionally, the child’s (best) interests and the child’s welfare seem to have usually been used interchangeably. The meanings of these terms – ‘child’s interests’, ‘welfare’, ‘highest priority’ and ‘paramount consideration’ – are not necessarily clear.

While I am not a specialist of English and Australian law, English courts, for example, seem to have interpreted this principle (the child’s welfare) in an individualistic way, meaning all factors including the interests of parents can be taken into account ‘in so far as they bear on the welfare of the child’ (eg Re P (Contact: Supervision) [1996] 2 FLR 314). Whilst this approach looks very child-centred, this interpretation has led to some problematic decisions at courts in, for example, child contact disputes which involve domestic violence (in most cases against women). A good example would be Re A (Supervised Contact Order: Assessment of Impact of Domestic Violence) [2015] EWCA Civ 486, in which a multiple rapist (father) was permitted to have supervised contact with the daughter (then 3 years) of his victim (mother). Although I suppose most cases in England have been dealt with properly, this kind of problematic decision under the principle is one of the main reasons that the alternative approach such as ‘relational welfare approach’ by Prof Herring has been proposed in England.

On the other hand, how ‘child’s interests’ and ‘highest priority’ have been interpreted by Japanese courts seems not necessarily clear. Here I would point out that in child contact disputes, for example, Japanese courts have usually used the presumption in favour of contact since around 1960s (Tokyo Family Court, 12 Dec 1964, Kagetsu 17-4-55). They also sometimes too much emphasise the rights of children to contact with the non-residential parent. I have been criticising such a courts’ attitude including the presumption above. It would be fair to say, however, some Japanese courts have clearly mentioned the importance of the good circumstances or relationships in a family as a crucial element to promote the child’s welfare in a specific case. More details on Japanese law will be explored further in the following blogs.