この冊子は、全司法労働組合の基礎報告書「司法の現場に見る日本の子どもの実情」（「調査資料№333」2007.11.5 発行）を英訳したものです。基礎報告書全文
は分量が多いため抜粋し、国連子どもの権利委員会の各委員の皆さんに読みやすい長
さにとりまとめたものです。

The Children's Rights in the Japanese Judicial System
Evidences through the
Researchwith Court Personnel

Zenshiho Labor Union
c/o Supreme Court of Japan
4-2 Hayabusa-cho, Chiyoda-ku
Tokyo 102-8651 Japan
Phone: +81- 3- 3264- 8111, ex. 5181～4・5187

1

Introduction

The Zenshiho Labor Union (All Judicial Workers’ Union, hereinafter called
Zenshiho) is the sole labor union for personnel who work for courts throughout Japan. It
includes Family Court Probation Officers, Court Clerks, Court Secretaries and others whodeal with issues concerning families and children, from juvenile delinquency cases togeneral family cases. Zenshiho has had a keen interest in the rights of children andwhether they are being guaranteed in the justice system, and has thus made efforts tomaintain close relationships with other groups in similar fields, seeking to ensure a bettersocial system.
In preparing this report, we conducted research from September to October 2006,
sending questionnaires to union members who work for all 50 Family Courts, asking about
the frontline issues confronting their practices, especially five points concerning children’s
rights. Forty-four out of fifty sent back their answers, which included refreshing opinions
that illustrated various cases of unfairness to children.
Having determined that children’s rights were not being protected sufficiently indaily judicial practice, we again felt strongly that the five points we focused on weresignificant ones, whose resolution would serve the advancement of children’s rights.
In this report, we focus on two out of the five points mentioned above. They are:(1) prolonged restraint during arrest and protective detention in delinquent cases, and(2) issues related to the failure to pay child support after the divorce of parents.
This report is divided into two parts. The first part looks at the current state ofchildren and the problems regarding the “revisions” to the Japanese Juvenile Law, which
we specifically describe the issue of prolonged detention based on the evidence wegathered through the research. The second part looks at child support issues, based also
on the evidence from the questionnaires.

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PART IThe Problem with Juvenile Justice1.

The Current State of Children

1)

The Social Situation in Present-day Japan
In the 1990s, arguments intensified over the notion that Japan’s post-war

democracy was too conservative to ensure development of a well-maturated society andthat it should undergo comprehensive change. The conventional education system as wellas public school teachers were criticized and, while the defense agencies and police
agencies had been fortified, medical care, social welfare and pension plans had been
seriously corrupted. The Fundamental Education Law was revised adversely to advocate amore nationalistic education system in December 2006. At the same time, the Defense
Agency was renamed the Defense Ministry. The National Referendum Law was instituted
to amend the Constitution and approved in May 2007. As a consequence, the conversion
from a system of “Education for the People” to “Education for the Nation” and from a“Nation for the People” to a “People for the Nation” had come to pass.

2)

A Discourse on “Worsening Juvenile Delinquency” and Expanding Police

Authority
According to the Judicial Statistics Annual Report prepared by the Supreme Court
of Japan, the number of murders and attempted murders committed by juveniles wasaround 300 annually in the 1950s. Since the peak in 1961 when 387 minors committed
murder or attempted murder, the number has been on the decline. There have been lessthan 100 murders and attempted murders per year since 1985, and less than 50 during
these past three years. In addition, about 70% of those cases are attempted murder cases
and not first-degree murder cases. Statistics for the past 50 years indicate that the3fluctuation of other delinquency cases is like that of murder and attempted murder cases,
decreasing and remaining relatively low in number.
A sentiment emerged in the public sector that both the quality and quantity ofjuvenile delinquencies had gotten worse, although there was no data to prove that minors
had become more atrocious. The opinions that “strange children are on the increase,”“minors are getting more atrocious,” “juvenile crimes are becoming more frequent” and “ourdaily security is being threatened” are frequently expressed. Furthermore, the mass media
is accused of agitating such arguments and arousing social unrest for the sake of audienceratings, profits and other commercialistic motives.
While social unrest about juvenile delinquency is prevalent, in December 2004, theMetropolitan Police Department released their blueprint on how legislation should becreated that prevents juvenile delinquency, resulting in a bill being introduced to expand
police authority to catch juveniles. An agreement to share information about children who
have a propensity toward delinquency was forged between the boards of education andpolice headquarters in each administrative district. It is anticipated that they intend to
introduce increased police authority into the school education system with jurisdiction overall students in general.

3)

More Delinquent Juveniles Sent to the Public Prosecutor’s Office under the

Revised Juvenile Law of 2000
Such policies have led to the corruption of the Juvenile Law. It was amended andoriented toward a punishment-based law in December 2000 (enforced in April 2001). The
minimum age for criminal disposition was lowered from 16 to 14 and, if a minor over 16
commits a crime resulting in death from an intentional criminal act, the minor is subject tocriminal punishment in principle. In January 2004, concluding observations of theCommittee on the Rights of the Child on the second periodic report of Japan expressed
deep concern with the amendment of 2000.

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After enforcement of the Revised Juvenile Law of 2000, the number of delinquentjuveniles sent to criminal court has apparently increased. Comparing the proportion ofminors who were sent to the Public Prosecutor’s Office in the five years after theamendment with that of the 10 years before the amendment, there is a dramatic increase to57.1% from 24.8% in the number of first-degree murder and attempted murder cases,
56.8% from 9.1% in the number of injury to death cases, and 74.0% from 41.5% in therobbery to death cases. (Judicial Statistics Annual Report prepared by the Supreme Court
of Japan)4)

The Process of Passing the Second Amendment to the Juvenile Law of 2007
The government and the Ministry of Justice again introduced a bill calling for therevision of part of the Juvenile Law before the Diet in March 2005. The bill was passed in
the House of Councilors with some modification on May 25, 2007. During the deliberation
process, the House of Representatives Committee on Judicial Affairs, then controlled by
the Liberal Democratic Party (LDP) pushed the bill through on the very day, while theHouse of Councilors Committee on Judicial Affairs allowed discussion for only two times.
The forcible way of passing the bill even though it was an issue concerning children showsthat the LDP did not understand the importance of child education.
The 2007 amendment authorized the Police Department to investigate children
under 14 who commit delinquent acts, and lowered the minimum age of minors who could
be sent to juvenile reform school from 14 to around 12. It also ruled that serious offenders
under 14 are to be sent to family court and that juveniles under probationary supervision
are subject to institutionalization if he/she breaks the compliance rules. It is obvious that,given the expanded police authority, they jumped to the conclusion that a problem childneeds to be segregated from school and the community. Both the amendments of 2000
and 2007 aimed to punish the delinquent juveniles and serious younger offenders under 14

5

in terms of their criminal conducts. It is safe to say that surveillance, control and severe
punishment of children have been steadily reinforced in Japan.

5)

The Current State of Children and Adult Society
The most important right of children is that of growing up. It is imperative forchidren, as they grow up, to succeed through failure, learning from experiences while
making mistakes along the way. It is difficult to raise children soundly by controlling andsuppressing them strictly. Controlling and suppressing children just tames them. We
should be generous in allowing them to make mistakes.
Children are currently under adult supervision within the confines of compulsory
education, cram schools, after-school activities, etc. They are forced to accept inadequate
dependence. They have few opportunities for trial-and-error and to learn from both
success and failure. They grow up physically but not mentally by following a strict andcompressed schedule. In the end, they arrive at puberty lacking in maturity. After puberty,
their misconduct, considered a crime, is punished severely. It clearly impacts their soundand wholesome development.
Repeatedly revising the juvenile law makes light of the protection of children andemphasizes control of youth by the Police Department and premature institutionalization.
By sending more minors to reform school or juvenile prisons without making every effort torehabilitate delinquent juveniles in the community, we fail to develop their ability to maintain
good human relationships or adapt well to society.

62.

Prolonged Physical Restraint by Abuse while under Arrest and

Detention----- Frontline Issues Emerged through Analysis by our Questionnaire

1)

The Structure of Repeated Arrests
In our questionnaire we asked respondents to report on cases of inappropriate

prolonged physical restraint of juveniles that occurred during re-arrest(s) and extension ofprotective custody.
Under the law, those who commit delinquent acts and get arrested are to bedetained for police investigation, if necessary. The maximum detention period is 10 days
but if an investigation requires more time, detention may be extended only once for 10
more days. In other words, the maximum period of detention for one arrest is 20 days.
The law states that the period from arrest to request for a warrant of detention shall be no
more than 72 hours, and the maximum period of physical restraint before Family Court
shall be 23 days total. After a police investigation, a case is sent to Family Court throughthe Public Prosecutor’s Office. If the Family Court judge decides it is necessary to take thejuvenile into protective custody at the juvenile classification home, he/she is detained until
disposition at the Court. During the investigation at the Police Department and/or during
the period of protective custody, the juvenile might be arrested once more, if the Police
Department deems it necessary for investigation of another charge. This is called “rearrest.” By being re-arrested, the day count starts all over from Day 1 again, so after
several re-arrests, a juvenile could be detained for an extremely long time.
Detention of a juvenile should be decided carefully and prolonged detention should
be avoided as much as possible. That has to be the bottom line. But in reality, there weremany cases in which juveniles had to bear unnecessarily long detention, respondents said.

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2)

Evidence of Unnecessary Long Detention
Many respondents reported that, despite the fact that the Police Department had

been aware of the possibility of other charges, they only investigated one charge for one
incident, and sent the case to the Family Court anyway. In some cases, they just waited tosee if he/she confessed to the other charges in the juvenile classification home. One boy
was even re-arrested four times successively for his vehicle thefts of 20-plus cars. Anotherjuvenile was re-arrested twice while under investigation of additional charges, even though
the juvenile had confessed to all of the deeds from the beginning.
In looking at the processes in which the above cases were handled, we cannot see
any effort by the Police Department to avoid unnecessary arrests by conducting efficientinvestigations, but just their tendency toward easy-arrest-repeating. In this way, it is hard tofind their consideration for the rights of the child.
Basically, investigation authorities are supposed to finish investigating all charges
in a timely manner, before sending the cases to the Court. When they have no choice but
to re-arrest a juvenile, they have to do so as quickly as possible. If re-arrest is announced
and not handled swiftly, juveniles would just waste days at the juvenile classification home.
There was a case reported of a juvenile who was re-arrested three times after thecase had been sent to the Family Court and had to spend 7 to 9 days at the juvenileclassification home each time. In that case, the juvenile experienced almost 25 days of
unnecessary detention.
One juvenile was arrested and detained at a place far from his residence. Normally,
as soon as his case is sent to the Family Court nearby, his case would be transferred to the
Family Court which has jurisdiction over his home address. In his case, however, thePublic Prosecutor’s Office and the Police Department requested the Court not to transfer
him for awhile, as they said that they were planning a re-arrest in 12 days and, as the
Family Court judge accepted their request, the juvenile simply waited to be re-arrested.
This situation could be an example of unlawful practice, sneaking around the net of the law

8which defines the maximum detention period under the Police Department. In this case,considering the timing of his being taken into custody, the Police Department obviously
expected the juvenile to be in the juvenile classification home so they could take summer
vacation themselves. Similar cases are reported in the questionnaire responses, that thereferral to the Family Court and the re-arrest were used as an excuse to arrange holiday
scheduling for the Police.
We renewed our concern about the issue of physical restraint of a juvenile, as theepisodes of six occurrences of re-arrest and three months of physical restraint wereclaimed among the responses to our questionnaire.

3)

The Lowered Hurdle toward Physical Restraint and its Negative Effects
It seemed that the resistance to the physical restraint of young people was lost.

Through the research, we found that this syndrome was prevalent nationwide, mainly inurban areas. In the past, re-arrest was rare, but it has become quite common recently.
Just 10 years ago, policemen hesitated to arrest junior high school students.
Permission from Prefectural Police Headquarters was needed then to arrest a junior highschool student. The Family Court also did not use handcuffs for a junior high school
student even when he/she was detained. Now that a general feeling of reluctance towardphysical restraint of youth has subsided, junior high school students who were arrested aredetained in detention cells as traditional substitute prisoners, just like older youths, though
there are ways to place them in the juvenile classification homes, which focus on a child’s
physical and psychological welfare more than other facilities like police cells.
High school students get expelled from school, often because of delinquent acts
themselves, and sometimes because of the number of days absent from classes during
detention. Prolonged detention inevitably results in their failure to get class credits andeventually they decide to leave school. One of the responses to the questionnaire reported

9

a case in which a first-time offender had to leave the high school because of the longdetention period given without any consideration for his continuance in school.
Another response said that in the police cell, circumstances were not properly
arranged for juveniles. Sometimes juveniles just do not know how to deal with time alone
in a cell, making it a waste of time and lacking in educational value. Even worse, when
juveniles are put together in the same cell, they sometimes exchange information about
themselves, such as names, mobile phone numbers, home addresses, etc. Some of themwould actually meet each other after they get out. Depending on circumstances, a juvenile
might communicate with adults in a nearby cell and/or spend a long time with adults while
waiting for their turn to be interviewed in the same room.
Some responses to the questionnaire pointed out that there were cases in which
juveniles got re-arrested after the transfer to juvenile reform school. In such cases, theirsystematic education was interrupted and disturbed, they said.

3.

The proposal from Zenshiho

We at Zenshiho, based on the evidence provided by the collective voices of court
personnel from around Japan, have come up with several ideas for a better system ofjuvenile justice, in the hopes of bringing about more effective educational measures forjuveniles, with less detention and better consideration for their rights.

1)

Proposal to Prevent Prolonged Custody before Disposition(1)

The Court
Every decision regarding the physical restraint of juveniles, including arrest,

detention and extension of detention under the Police Department, is made under awarrant issued by the Court. Today, the court issues nearly all warrants, almost

10automatically with few exceptions. We strongly believe that the court should have thesensibility to distinguish between cases that require physical detention of juveniles androutine requests. If the court changes its attitude toward issuance of warrants for juveniles,
investigation authorities would have to pay more careful attention and eventually be forced
to make their best effort to shorten detention periods.
No one can argue with the notion that the Family Court plays a central role inrespecting and practicing the spirit and purpose of the Juvenile Law. Thus, the Family
Court is ultimately responsible for avoiding useless prolonged custody. In particular,
circumspection is required when taking junior high school and high school students into
custody.

(2)

The Police Department and Public Prosecutor’s Office
The negative effects of long-term detention upon young people should be taken

more into consideration, especially when the Police and Public Prosecutor deal withjuvenile cases. It is highly recommended that special training be mandated for officers in
the Juvenile Division, to give them opportunities to learn the character of juveniles,
including their vulnerability, susceptibility and tendency to be intimidated. Furthermore, thePublic Prosecutor’s Office should exercise more decisive leadership over the Police
Department, to ensure more effective investigation of juvenile cases, resulting in lessdetention time.

2)

Proposal for Enhanced and Broader Treatment(1)

Child Guidance Center Improvements
It seems that the Child Guidance Center is fully occupied with child abuse cases,

and not enough energy is available for another of their significant tasks, namely, dealing
with problematic behaviors by young juveniles. The Child Guidance Center has a truly
important jurisdiction in the community, over children at the very early problem stage, which

11should be addressed from both the medical and welfare perspectives. It is obvious thatthey need staff with broader experiences, both in terms of numbers and skills to handle
cases.

(2)

Support Facility for Development of Self-Sustaining Capacity Improvements
Each prefecture in Japan has one or two Support Facilities for Development of Self-

Sustaining Capacity. The situation and availability of the Support Facilities varies locally. In
certain prefectures, as facilities are usually full, juveniles in need cannot be accepted,
meaning juveniles there have fewer options. That is extremely unfair. It is necessary tocreate a new system in order to improve the current situation to set equal opportunities allover Japan.
Furthermore, there exist only two Support Facilities where compulsory measures
can be taken, one for boys and one for girls, which is extremely insufficient. Facilities also
suffer from poor quality of their programs and systems. For example, a facility is neededthat can handle long-term care of junior high school graduates, or those under 18 years ofage, and/or that has a resident doctor who is specialized in child psychiatry and capable ofdealing with children with developmental disorders like AD/HD, Asperger’s syndrome andother ailments.

(3)

Establishment of several kinds of Facilities for Juveniles Needed
It is obvious that more various facilities are required to respond to the various

needs of juveniles. For example, some juveniles are better off living separately fromfamilies until they get to sustain themselves, financially and mentally. Now that thosefacilities are very few and operated privately often by charitable money, lots more areneeded through public management.

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(4)

Juvenile Reform School: More Facilities and Improvements
Juvenile Reform Schools are often over-populated, which undoubtedly leads tomaltreatment. In addition, their programs are not always responsive to the various needsof juveniles, for example, with developmental disorders, which require careful and individual
treatment. First of all, we strongly recommend an increase in the number of Reform
Schools as well as number of staff. Secondly, they need to improve the professional skillsof staff members and develop the variety of programs.

(5)

More Facilities Needed for Juveniles without Homes
We also need facilities to accept juveniles without a home. Some youth have towait, even after they fulfilled their program at the Juvenile Reform School simply because
they do not have a home to return to. Some families just hesitate to greet them, others are
reluctant to do so. The delay of release according to rejection from family often has
negative effects on juveniles, discouraging them a lot. More housing facilities for suchjuveniles would be needed.

(6)

Probation Department: More Officers, Training
The “Amendment” of the Juvenile Law in 2007 enabled the violation of probation

condition to be a sufficient reason to the transfer to the Juvenile Reform School, which may
sound that this amendment would serve for the probation getting more powerful andeffective. But, without an increase in the number of Probation Officers, and without
improvement in the skill levels of Volunteer Probation Officers, probation would not function
sufficiently enough to support juvenile’s rehabilitation.

(7)

Family Court Improvements and more Family Court Probation Officers
Definitely the Family Court needs far more Family Court Probation Officers to dotheir work properly and take responsibility as guardians of the rights of children. More

13

Judges, Court Clerks and Court Secretaries are also needed. With the current
underpopulation of Family Court Probation Officers, the Family Court cannot handle thecomplex problems of juveniles.

3)

Juveniles under the Criminal Justice System(1)

Special Consideration toward Juveniles in the System
In reality, juveniles being prosecuted in the Adult Courts stay detained for a longtime, not a few of them are detained for one year without any special consideration as
juveniles. While the period of protective detention is limited in the Family Courts, no such
restriction is set in the Adult Criminal Courts even if the accused is a minor. It is not in theinterest or welfare of the juvenile that they are often put into substitutable institutions for
adults.
Open court hearings are also problematic for juveniles. Considering the nature ofjuveniles, being easily intimidated and confused in public, vulnerable and naïve in front of
an audience, the regulations regarding whether a court hearing should be open or notshould be customized for juveniles. Limiting the spectators to the victim and/or the victim’s
family, close relatives of the juvenile and the press, placing barriers in the courtroom as ashelter from the public, are examples.

(2)

The Prison Program and Improvements
Though the “Year 2000 Amendment” facilitated the improvement and enrichment of

the treatment menu for minors in the prisons, it is still not enough. More programs should
be enhanced for youth. And it is worth considering that juveniles who are sentenced at the
Adult Court should first be allowed to spend their juvenile days at the Juvenile Reform
School and, after they mature, get transferred to an adult prison to serve their full
sentences.

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PART 2

1.

Problems with Child Support

Child Support in Japan

In Japan, over 90 % of divorcing couples choose to divorce by “paper,” which isdone by presenting signed documents to the city office, without any court proceeding. 9%of the remaining 10% divorce through a mediation proceeding at Family Court, and 1% by
trial in open court. In either case, if they have a minor child/children between them, acouple shall decide which parent is to be the custodian for each child at the time of divorce.
Other issues like visitation schedule, the amount of child support, child’s surname andothers, can be discussed and decided later.
Issues regarding child support are decided either between couples by themselves(some use a notarized agreement, but most do not), in an agreement drawn up throughmediation at Family Court, or by judgment by the Court. If information like the name of an
obligatory parent, amount of child support, form of payment, etc. is written up in an
enforceable way (that is, written up as a notarized document, an agreement or a judgmentby the Court), it can be legally enforced in the case of delay and/or failure of payments.
If the child support issue was agreed upon or decided during the Family Court
proceeding (e.g., mediation, disposition or judgment), and negligence payments occur, aconcerned party (usually the mother in most cases) can apply for a motion to Family Court
to take certain measures for ensuring the obligations. The number of motions applied to
Family Court in the year 2007 was 16,280, which has increased rapidly in the past decade,by 1.4 times. What is worse is, in nearly half the cases, 45.1% to be exact, though
ensuring measures were taken or sought, no payment was done, as obligatory parents
often knew the ensuring measures did not have any compulsory power.

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2.

Points that Emerged from Our Research1)

Inaccessibility to Compulsory Execution
In our research, a lot of reports claimed the hardship experienced by custodial

parents with unpaid child support. This situation seemed to be the same all over Japan.
As explained above, if the child support issues are decided in Family Court, acustodial parent can apply for a motion for ensuring measures to Family Court. However,those measures do not have compulsory power. If the ensuring measures, which are justinvestigation and advice to pay by the Family Court Probation Officer in most cases, haveno effect, a concerned party can file for a case of compulsory execution to the District Courtof the obligatory party’s residence.
The hurdle for filing a case to the District Court, however, is sometimes very high.
For example, the whereabouts of an obligatory parent is not always known. Furthermore,
the employer’s name or what kind of property is to be seized from the obligatory parent isusually beyond knowledge. Without such information, filing a compulsory execution case is
not possible.
In reality, a lot of concerned parties have to give up the compulsory execution
procedure, even though they have agreements and/or dispositions of child support.

2)

Reality of the Child’s Living Situation without Child Support
Every custodial parent does his/her best to take care of the child, physically andfinancially, often doing overtime work and enduring low wages. While almost 80% ofchildren from divorced families live with the mother, their average wage is substantiallylower than that of the father, statistically.
A respondent in our research says that after the divorce of his parents, the childstarted living with his mother, who worked overtime, and his life changed drastically,
staying home alone longer, waiting for his mother. Another child had to play the role oflistening to his own mother’s complaining and lamenting about her situation. In some16

cases, hardship has led the undesirable consequence of child abuse by a single parent.
Some custodial parents simply could not survive the hardship and gave up custody of thechildren to the other parents, ignoring the children’s will.
The consequences that such situations bring about are not hard to imagine. Many
respondents in our research pointed out that children often gave up the education that they
were eligible for had they had the proper child support and regular payments, as agreed
upon. Children could not continue studying at high school, left university and/or juststopped playing their favorite sport, practicing a musical instrument or developing skills invarious fields, because of their financial situation.
The undesirable effects come about in the relationship between the child and a
non-custodial parent. Oftentimes, a custodial parent makes an objection to the visitation bya non-custodial parent, in response to the failure of child support payment. Also, acustodial parent sometimes uses the visitation by the non-custodial parent as anopportunity to ask for money. In either case, the visit by the non-custodial parent does notserve as a productive moment for the child. Some children reportedly have gotten fed up
with hearing their mother’s complaining about their father. Not a few children grow up
hating their own fathers due to repeatedly hearing bad things about them.

3)

Poor Public Support
Some respondents described the sad situation in which a mother could not file acase of compulsory execution because she did not know about either the assets nor theemployer of her former husband, and that she also got denied access to welfare, being told
to get child support first by the Social Services Agency.
Social Services Agency calculates the amount of child welfare with 80% of childsupport as partial income, even if it wasn’t actually all paid. In a way, it is ironic that thepresence of an agreement or disposition for child support can become an obstacle if it isneglected.

17

3.

Proposal from Zenshiho

While not a few non-custodial parents ignore their responsibilities as parents, thesystem to sure payments is insufficient. Significant changes in the social systems as wellas in the public consciousness are needed.

We propose the following:(1)

A system of criminal punishment and/or administrational dispositions should be

newly established against neglect of child support payments.

(2)

Procedures for compulsory execution should be revised to be more accessible.

(3)

The administrative body should be empowered to put pressure on negligent parents.

18