Waseda University Institute of Comparative Law

     The Japanese child protection system is structured according to the provisions of several related laws, one of which is the Civil Code. Part 4 of the Japanese Civil Code, entitled Relatives, provides for legal family relationships and the rights and responsibilities among family members. Several articles of Part 4 stipulate the relationships between parents and children, define the legal effect of parental authority, and provide for forfeiture of parental authority.

     As a whole, Civil Code provisions related to parental authority have been criticized for their ineffectiveness in intervening in parent-child relationships when children are abused or neglected by their parents. For example, although directors of the child guidance centers, which are in charge of child abuse intervention, are authorized to pursue forfeiture of parental authority, they have rarely filed for forfeiture of parental authority in practice. The government recognized such criticisms and embarked on a revision of the Civil Code provisions related to parental authority as a part of its effort to reform the related laws to better protect children from parental abuse and neglect. The revision bill was approved at the 177th session of the Diet on May 27, 2011. Revised provisions will come into effect on April 1, 2012.

     The following are some of the provisional changes introduced by the revision.

     First, Art. 820 of the revised Civil Code provides that a person who conducts parental authority holds rights and bears responsibilities to care for and educate his or her child “to serve the interest of the child.” In contrast, Art. 820, currently in effect, does not require, at least on its face, that parental authority be conducted to serve the child’s interest.

     Second, Art. 822 of the revised Code provides that a person who conducts parental authority may discipline his or her child as far as it is necessary in caring for and educating the child as stipulated in Art. 820. The Code’s clear authorization of parental discipline has been criticized that it provides excuses for parents who insist that their abusive conducts are part of their discipline necessary for their child. Although there was discussion on this issue in the drafting process, such authorization itself was retained, but with new emphasis on the child’s interest that is now expressed in Art. 820.

     Third, the revised Code introduced a new article (Art. 834-2) that provides for temporary suspension of parental authority. Under this new provision, suspension of parental authority for up to two years may be ordered by a family court when a child’s interest is harmed because the exercise of parental authority by the child’s father or mother is difficult or inadequate. Suspension of parental authority is expected to be utilized by child guidance centers to restrict the parent’s physical custody and decision-making power for a clearly defined time period, and meanwhile provide support for reunification.

     Forth, the revision changed the legal requirement for forfeiture of parental authority (Art. 834). Under the current provision, forfeiture of parental authority may be ordered by a family court when a father or a mother abuses his or her parental authority or when there is gross misconduct on the part of the parent. In contrast, the new article provides that forfeiture of parental authority may be ordered when a child’s interest is considerably harmed because the child’s father or mother abuses or willfully neglects the child or because his or her exercise of parental authority is considerably difficult or inadequate. The new requirement focuses more on the actual harm to the interest of the child than the blameworthiness of the parents for their problems.

     Fifth, the revised Arts. 834 and 834-2 provide that children may file petitions for forfeiture and temporary suspension of parental authority of their parents. A child may file petitions on their own even when other authorized petitioners (i.e., the child’s relatives and legal guardians, child guidance centers, etc.) are not willing to do so. However, these children will need emotional support and legal advocacy to take part in the family court proceedings as a petitioner.

     In implementing these new provisions introduced by the revision, active case involvement of child guidance centers and family courts will be indispensable. We should carefully observe whether these provisions will actually provide sufficient care and protection for abused or neglected children.