Minutes of the seventh meeting of the Family Law Subcommittee of the Legislative
Council (provisional translation)
On September 21, 2021, the seventh meeting of the Family Law Subcommittee of theLegislative Council was held at the Ministry of Justice (in person and online). Nearly all
the members and non-voting members attended the meeting. The Chairman, Prof.
OMURA Atsushi, presided over the meeting.
During the meeting, the official of the Supreme Court first explained the status quo of
the implementation of visitation on a tentative basis in the family courts, and then,following up on the sixth meeting, the Subcommittee examined the issue of involvementof parents in decision-making on matters related to child rearing after divorce, based on
the meeting materials. A wide range of opinions were exchanged by the members on: (i)the appropriateness of and requirements for establishing rules that enable both parents tochoose to be legally responsible for making decisions on matters concerning a child afterdivorce; (ii) the classification and details of matters to be covered by such rules, ifestablished; and (iii) additional rules on the manner of involvement if both parents arelegally responsible for making such decisions.
For example, with regard to point (i), opinions were presented on whether to establish
rules that enable both parents to choose to be legally responsible for making decisions fora child regardless of whether the divorce is consensual or judicial; but if such rules are
established, some were concerned that the child's interest might be impaired as nodecision could be reached by agreement between the parents. Concerning point (ii), someargued that as long as the child's interest is protected, the involvement of parents will vary
based on individual circumstances, so cases in which parents are involved should takesuch circumstances into account. In addition, the matters proposed in the meeting
materials as matters to be decided consist of various natures so they may be considered
not only from the viewpoint of importance but from that of promptness; and that it shouldbe necessary to clarify the nature of the matters because the details and scope of some ofsuch matters that were proposed as important in the meeting materials are not clear onwhether or not the parents would be responsible for making such decisions. (see page 1417 in the meeting material 6 (only in Japanese)) Concerning point (iii), the following
comments were made: the modality of rules to be established may change depending on
the nature of the matters to be decided by the parents; consideration should be made byreferring to the legislative examples and realities in other countries where both parents
are allowed to take responsibility for making decisions; and if claims for damages areadmitted as a result of violation of the rules, a careful examination should be conductedon who infringes whose rights and what rights.
Subsequently, the Subcommittee examined the issue of respect for the child's opinions
on child rearing, based on the meeting materials. Various opinions offered, including: (i)while it was observed that the current Domestic Relations Case Procedure Act requiresthat the opinions of a child of 15 years of age or older must be heard on certain matters,on the matter of divorce where a minor child is involved, the child’s opinions should beheard unexceptionably and mandatorily, regardless of the child's age; (ii) the rules on how
child’s opinions are respected should be based on the child's age, but the delineation of
the child's age should be carefully considered by analyzing the purport of the current law;(iii) in order to ensure that children’s opinions are respected, an attorney should hold ahearing to confirm the child’s intent; (iv) other experts such as psychological counselors
should be involved in addition to attorneys; (v) children should not be forced to choose
one parent as caregiver, so wide-ranging discussions should be held in this respect,including on the inclusion of social support.
For its next meeting, it was decided that the Subcommittee would examine theremaining issues in the meeting materials and discuss issues on the system of adoption ofminors.
※These minutes are the responsibility of the Secretariat of the Committee, which hasprovided this summary of the outcome of the meeting as a preliminary report inEnglish.